Home state senators block Six's nomination

07/29/2011 12:00 AM

07/29/2011 12:08 AM

The chairman of the U.S. Senate Judiciary Committee said Thursday that it will not consider the nomination of former Kansas Attorney General Steve Six to the federal appeals court bench, deferring to opposition from the nominee's Republican home state senators.

The terse statement from Democratic Sen. Patrick Leahy, of Vermont, came as the committee was set to vote on Six's nomination to the 10th Circuit Court of Appeals.

Sens. Pat Roberts and Jerry Moran from Kansas sent a letter this week to Leahy asking that the judiciary committee not take up Six's nomination. It gave no reason for their opposition.

"Whereas we have previously stated our opposition to this nomination, we are respectfully requesting that the Committee not process this nominee," the Kansas senators wrote. "We appreciate and respect the committee process in vetting all federal court nominees. We regret that we cannot support Mr. Six."

Neither senator has publicly stated his reasons for opposing Six's nomination. Anti-abortion groups have opposed Six.

Six did not immediately respond to an e-mail Thursday seeking comment.

Documents obtained by the Associated Press show that Roberts had initially indicated to the committee that he approved of Six's nomination, while Moran initially reserved judgment until after the hearing. The nomination would never have gotten this far had they initially opposed it.

Leahy sent letters to both Roberts and Moran earlier this month saying he was surprised to learn on the eve of the committee's consideration of the nomination last month that the Kansas senators did not support the nomination. Leahy asked the home state senators how they would like the committee to proceed.

He noted in his letters that it was his understanding that both senators were consulted by the White House before President Obama nominated Six, and the president believed he had selected a consensus nominee at the time he made the nomination.

"This type of reversal of position by a home state Senator on a nomination has rarely occurred," Leahy wrote Roberts. "As I have expressed to Senator (Charles) Grassley, the Committee's ranking member, in my view no new material information emerged during the course of our review of the nomination, his testimony at his confirmation hearing, or in his answers to multiple rounds of written follow up questions, and certainly none that was disqualifying."

Leahy also noted in his letters to both Kansas senators that Six has received significant bipartisan support: 29 Republican and Democratic state attorneys general; Robert Stephan, the Republican attorney general of Kansas for 16 years; former Judge Deanell Reece Tacha, whose seat on the 10th Circuit Six was nominated to fill; and from current and former deans of the University of Kansas School of Law.

The opposition from the home state senators to Six's nomination has also spawned several editorials in Kansas newspapers demanding Roberts and Moran give their reasons for opposing the nomination.

The development delighted abortion opponents who claim Six did not do enough to prosecute abortion providers in the state.

"Six repeatedly allowed his personal and political biases to influence his professional judgment, and that alone makes him unfit for the federal appeals court," Operation Rescue President Troy Newman said in a statement. "Today we are celebrating this victory for the cause of justice."

Carl Tobias, a law professor from the University of Richmond who follows the federal judiciary, said it is part of the custom and tradition for the judiciary committee to honor the preferences of the home state senators. Leahy would have had the votes, assuming the vote fell along party lines, to move Six's nomination to the Senate floor.

It is possible, he added, that the Kansas senators could still change their position and allow the committee vote on the nominee.

"Leahy is doing the honorable thing by not moving Six forward," Tobias said. "Until they change their mind, it seems unlikely Leahy will move the nomination in committee — even though he has the vote."

Although federal statute requires that each state in a circuit have at least one person on the appeals court, Kansas already has one judge on the 10th Circuit, Tobias said. That means Obama, like his two predecessors, could nominate someone from another state to that appeals court seat if he considers the Kansas senators are obstructing his nominees.

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