Sixth Circuit Nominees Propose Idea to Break Michigan Deadlock
Package deal with Democratic senator ensures conservative majority on court
In June 2006, George W. Bush nominated Raymond Kethledge, age 39, and Stephen J. Murphy III, age 43, to putative Michigan seats on the Sixth Circuit. Despite their excellent credentials, their prospects were dire from the start.
Michigan’s Democratic senators were enraged by what they considered a decade of abuse over Sixth Circuit seats. They refused to return positive blue slips on the nominations. Arlen Specter, the Republican chairman of the Senate Judiciary Committee, wouldn’t schedule hearings on nominees whom home-state senators objected to.
The situation was made even worse by the November 2006 elections. Democrats won control of the new Senate that convened in 2007. Kethledge’s and Murphy’s nominations continued to languish.
Then Kethledge and Murphy brainstormed an idea. This post is, I believe, the first public account of their role in initiating that idea.
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The bad blood over Sixth Circuit seats in Michigan had a long history. It began at least as early as the presidency of George H.W. Bush. In January 1992, Bush nominated John Smietanka, then serving as the United States Attorney for the Western District of Michigan, to a newly created seat on the Sixth Circuit. But Senator Carl Levin of Michigan prevented any action on Smietanka’s nomination.
In 1993, Bill Clinton appointed Tennessee supreme court justice Martha Craig Daughtrey to the seat, and it’s been in Tennessee ever since. It’s now held by Whitney Hermandorfer, Donald Trump’s first appellate appointee in his second term.
Three Michigan vacancies on the Sixth Circuit arose during Clinton’s presidency. In March 1996, Clinton nominated Eric Clay. Clay won the approval of Michigan’s Spencer Abraham, who in addition to being a co-founder of the Federalist Society was a Republican member of the Judiciary Committee. After substantial delay, the Republican-controlled Senate confirmed Clay’s nomination in July 1997.
Clinton didn’t have such good fortune with Abraham on his next two nominations. In January 1997 he nominated Helene White. Even though she had served for more than 15 years as a judge at different levels of Michigan’s court system, a minority of the American Bar Association committee rated her Not Qualified.
White’s strongest credential with Senator Levin was her relationship with Levin’s cousin Charles Levin. Charles Levin was a justice on the Michigan supreme court from 1973 to 1996, and White clerked for him after her graduation from law school in 1978. When the Detroit Free Press reported their marriage in April 1999, it described them as “longtime close friends.” “Close friends” would appear to be an understatement: They evidently had the first of their two children together no later than 1994.
Incurring Senator Levin’s wrath, Senator Abraham refused to return a positive blue slip on White (he did return an uncompleted blue slip in the spring of 2000), and the Judiciary Committee never held a hearing on her nomination.
In September 1999, Clinton nominated Kathleen McCree Lewis to another seat on the Sixth Circuit, and Abraham also did not return a positive blue slip on her nomination.
Senator Levin and Abraham’s Democratic successor Debbie Stabenow were further angered when their own blue-slip objections to George W. Bush’s Sixth Circuit nominations were ignored or overridden. In 2003 and 2004, after Republicans regained control of the Senate, Judiciary Committee chairman Orrin Hatch held hearings on Bush’s nominations of Henry Saad, Richard Griffin, and David McKeague. In defense of Levin’s and Stabenow’s blue-slip privileges, Democrats filibustered the three nominations on the Senate floor. But the Gang of 14 Agreement in 2005 led to the confirmations of Griffin and McKeague.
So Levin and Stabenow were in no mood to allow Kethledge and Murphy to be confirmed.
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As it happens, Ray Kethledge was serving as Judiciary Committee counsel to Senator Abraham when Clinton nominated White to the Sixth Circuit in 1997. In a bit of jiujitsu, Kethledge and Murphy figured out how to turn Senator Levin’s passionate commitment to White to their advantage. Levin had made clear that he would not okay any nomination to the Sixth Circuit unless and until Bush renominated White to that court. His commitment extended even beyond his cousin’s marriage to White, which was terminated by divorce in November 2006.
If the Bush administration could not strike a deal with Levin, Kethledge and Murphy would not get confirmed. Even worse from the White House’s perspective, if a Democratic president was elected in 2008 and Democrats continued to control the Senate, the Sixth Circuit would lose the majority coalition of conservative and moderate judges that George W. Bush had built.
At the beginning of 2002, the 16-member Sixth Circuit had two judges who had been appointed by Republican presidents, six judges who had been appointed by Democratic presidents, and a remarkable eight vacancies. With his appointment of Susan Bieke Neilson in November 2005, Bush had placed seven judges on that court. But Neilson was suffering severely from a rare blood disorder, and upon her death in January 2006 the 9-to-6 margin of Republican to Democratic appointees quickly fell back to 8 to 6.
If Bush could fill one of the two vacancies with a conservative judge, the court would have a center-right majority of nine judges. If he failed to fill either, a Democratic president could even the court at 8 to 8.
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In hindsight, the deal was simple enough: Bush nominates White to one of the two Sixth Circuit seats in lieu of Kethledge or Murphy, and whoever loses out on the Sixth Circuit seat receives a district judgeship.
In practice, the deal was made possible by Murphy’s generous willingness to take the lower judgeship. Although he would surely have made a fine appellate judge, his own long experience as a federal prosecutor, culminating in his service as United States Attorney for the Eastern District of Michigan, better prepared him for the role of federal district judge. Plus, there was a longstanding vacancy open in the Eastern District of Michigan. And, of course, he recognized that the alternative to a deal was a dead nomination.
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Kethledge and Murphy traveled to D.C. to present their proposal to lawyers in the White House counsel’s office. The immediate response was very favorable. White House lawyers would have been very reluctant to try to force a deal like this on Murphy. But the fact that he was proposing it made it easy to embrace and celebrate it. If it went through, the Sixth Circuit would preserve its center-right majority, Kethledge would be an outstanding circuit judge and a serious prospect for a Supreme Court nomination down the road, and Murphy would be an excellent district judge.
On April 15, 2008, with the full support of Senators Levin and Stabenow, Bush nominated White to the Sixth Circuit seat that Murphy had been nominated to, and nominated Murphy to the Eastern District of Michigan. Three weeks later, Kethledge, White, and Murphy had a joint confirmation hearing. On June 24, 2008, the Senate confirmed all three.
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The deal has worked out as well as Bush’s White House lawyers could possibly have hoped. Barack Obama of course was elected president in November 2008, and Democrats gained an extraordinary eight seats in the Senate. If the deal hadn’t happened, Obama would have promptly filled the two vacancies and the Sixth Circuit would have been divided evenly between Republican and Democratic appointees.
Instead, the 9-to-7 conservative-moderate majority persisted through the eight years of Obama’s presidency, became larger (10 to 6) and more solidly conservative during Donald Trump’s first term, returned to 9 to 7 at the tail end of Joe Biden’s presidency, and expanded to 10 to 6 upon Trump’s appointment of Hermandorfer this past July.
The majority on an appellate court matters not only when the court decides a case en banc. It also matters because the vote of a majority of active judges is needed in order to rehear a case en banc. If the composition of a court is equally divided ideologically, a majority on a three-judge panel will have more liberty to indulge its own ideological preferences, as it will have little reason to fear the prospect of en banc review.
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Kethledge, now 58, continues in active service. The Trump White House gave him very serious attention for the Supreme Court vacancies that resulted from the death of Justice Scalia and from the retirement in 2018 of Justice Kennedy (for whom he had clerked).
Murphy, now 63, recently became chief judge of the Eastern District of Michigan.
White elected to take senior status during Biden’s presidency.