[Congressional Record Volume 148, Number 44 (Thursday, April 18, 2002)]
[Senate]
[Pages S2932-S2935]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF LEGROME D. DAVIS, OF PENNSYLVANIA TO BE UNITED STATES 
        DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

  The PRESIDING OFFICER. Under the previous order, the Senate will go 
into executive session.
  The nomination will be stated.
  The legislative clerk read the nomination of Legrome D. Davis, of 
Pennsylvania, to be United States District Judge for the Eastern 
District of Pennsylvania.
  Mr. LEAHY. Madam President, the confirmation of Judge Legrome Davis 
to the District Court for the Eastern District of Pennsylvania will be 
the 17th judge confirmed since the beginning of this session. Under 
Democratic leadership, in less than 4 months the Senate has confirmed 
as many judges as were confirmed in all 12 months of the 1996 session 
under Republican leadership. In fact, included among the 17 judges whom 
we will have confirmed since January this year are 2 judges to our 
Courts of Appeals. That stands in sharp contrast to the 1996 session in 
which the Republican majority did not allow even a single Court of 
Appeals nominee to be confirmed--not one. I submit that we have already 
done better in less than 4 months than our predecessors and critics did 
during the entire 12 months of the 1996 session.
  The confirmation of Judge Davis today illustrates the progress being 
made under Democratic leadership and the fair and expeditious way in 
which we have considered nominees. Judge Legrome Davis was first 
nominated to the position of U.S. District Court Judge for the Eastern 
District of Pennsylvania by President Clinton on July 30, 1998. The 
Republican-controlled Senate took no action on his nomination and it 
was returned to the President at the end of 1998. On January 26, 1999, 
President Clinton renominated Judge Davis for the same vacancy. The 
Senate again failed to hold a hearing for Judge Davis and his 
nomination was returned to the President on December 15, 2000, after 2 
more years of inaction in a second full Congress while the Senate was 
controlled by a Republican majority. Under Republican leadership, Judge 
Davis' nomination languished before the Committee for 868 days without 
a hearing. Unfortunately, Judge Davis was subjected to the kind of 
inappropriate partisan rancor that befell so many other nominees to the 
district courts in Pennsylvania and to the Third Circuit during the 
years Republicans controlled the Senate. I want to note emphatically, 
however, that I know personally that the senior Senator from 
Pennsylvania, Mr. Specter, supported Judge Davis's nomination and 
worked hard to get him a hearing and a vote. The lack of Senate action 
on Judge Davis's initial nominations are in no way attributable to a 
lack of support from the senior Senator from Pennsylvania. Far from it. 
In fact, I give Senator Specter credit for getting President Bush to 
renominate Judge Davis earlier this year and want to commend him 
publicly for all he has done to support this nomination from the 
outset.
  This year we have moved expeditiously to consider Judge Davis. Judge 
Davis was nominated by President Bush in late January 2002, the 
Committee received his ABA peer review on March 12, he participated in 
a confirmation hearing the next week on March 19, and he received a 
unanimous vote by the Judiciary Committee on April 11--less than 3 
months after his nomination, and less than 1 month after his paperwork 
was completed. The saga of Judge Davis recalls for us so many nominees 
from the period of January 1995 through July 10, 2001, who never 
received a hearing or a vote and who were the subject of secret 
anonymous holds by Republicans for reasons that were never explained.
  At Judge Davis' recent confirmation hearing Senator Santorum 
testified that Judge Davis did not get a hearing after President 
Clinton nominated him because local Democrats objected. I was the 
ranking Democrat on the Judiciary Committee during those years and 
never heard that before. My understanding at the time, from July 1998 
until the end of 2000, was that Judge Legrome Davis would have had the 
support of every Democrat on the Judiciary Committee and in the Senate. 
He was not included in the May 2000 hearing for a few other 
Pennsylvania nominees. His not being included was a part of the 
discussion on the record, a discussion about unwillingness of some to 
act on nominees in a presidential election year although Senator 
Specter emphasized his personal commitment to supporting Judge Davis. 
Senator Hatch never indicated to me that he thought Democratic 
opposition was the reason he could not include Judge Legrome Davis in a 
hearing over those 3 years.

  Judge Davis has served as a Judge on the Court of Common Pleas in the 
First Judicial District in Pennsylvania for more than 13 years. Prior 
to serving as a judge, he had an extensive career litigating criminal 
cases in State courts. He has participated in numerous task forces and 
a variety of pro bono projects aimed to improve the judicial system. He 
is well-qualified and has broad bipartisan support. I know that Judge 
Davis and his family are glad that this day has finally arrived. I 
expect that the people served by the Eastern District of Pennsylvania 
will be happy with the Senate's action today.
  Judge Davis will be the 45th judicial nominee to be confirmed since 
last July when the Senate Judiciary Committee reorganized after the 
Senate majority changed. With today's vote on Judge Davis, the Senate 
will confirm its 45th judicial nominee in the less

[[Page S2933]]

than 10 months since I became Chairman this past summer. The Senate has 
confirmed more judges in the last 10 months than were confirmed in 4 
out of 6 full years under Republican leadership. The number of judicial 
confirmations over these past 10 months 45 exceeds the number confirmed 
during all 12 months of 2000, 1999, 1997 and 1996.
  As our action today demonstrates, again, we are moving at a fast pace 
to fill judicial vacancies with nominees who have strong bipartisan 
support. Those partisan critics who assert that our rate of confirming 
President Bush's judicial nominees is bad are ignoring the facts. They 
willfully confuse the actual ``pace,'' or rate, of confirmation with 
the misleading percentages they like to construct. The facts are that 
looking at the number of confirmations in similar time periods shows 
that we are confirming President Bush's nominees at a faster pace than 
the nominees of prior presidents, including those who worked closely 
with a Senate majority of the same political party.
  The rate of confirmation in the past 10 months actually exceeds the 
rates of confirmation in the past three presidencies. For example, in 
the first 15 months of the Clinton administration, 46 judicial nominees 
were confirmed, a pace on average of 3.1 per month. In the first 15 
months of the first Bush administration, 27 judges were confirmed at a 
pace of 1.8 judges per month. Likewise, in President Reagan's first 15 
months in office, 54 judges were confirmed, a pace of 3.6 per month. In 
less than 10 months since the shift to a Democratic majority in the 
Senate in less than two thirds of the time period--President George W. 
Bush's judicial nominees have been confirmed at a rate of more than 4.5 
judges per month, a faster pace than for any of the past 3 Presidents.
  During the 6\1/2\ years of Republican control of the Senate, judicial 
confirmations averaged 38 per year a pace of consideration and 
confirmation that we have already exceeded under Democratic leadership 
over these past 10 months in spite of all of the challenges facing 
Congress and the Nation during this period and all of the obstacles 
Republicans have placed in our path. At the end of today, we have 
confirmed 45 judicial nominees in just 10 months. This is almost twice 
as many confirmations as George W. Bush's father had over a longer 
period--27 nominees in 15--months than the period we have been in the 
majority in the Senate.

  The Republican critics typically compare apples to oranges to 
mischaracterize the achievements of the last 10 months. They complain 
that we have not done 24 months of work in the less than 10 months we 
have been in the majority. That is an unfair complaint. A fair 
examination of the rate of confirmation shows that Democrats are 
working harder and faster on judicial nominees, confirming judges at a 
faster pace than the rates of the past 20 years. The double standards 
asserted by Republican critics are just plain wrong and unfair, but 
that does not seem to matter to Republicans intent on criticizing and 
belittling every achievement of the Senate under a Democratic majority. 
I would like to commend the members of the Judiciary Committee and our 
Majority Leader and Assistant Majority Leader for all of their hard 
work in getting us to this point. The confirmation of the 45th judge in 
less than 10 months, especially these last 10 months, in spite of the 
unfair and personal criticism to which they have each been subjected, 
is an extraordinary achievement and a real example of Senators acting 
in a bipartisan way even when the other side makes it as difficult as 
possible.
  Republicans have been imposing a double standard on circuit court 
vacancies as well. The Republican attack is based on the unfounded 
notion that the Senate has not kept up with attrition on the Courts of 
Appeals. Well, the Democratic majority in the Senate has more than kept 
up with attrition, and we have been acting to close the vacancies gap 
on the Courts of Appeals that more than doubled under the Republican 
majority.
  Just this week, the Senate confirmed Judge Terrence O'Brien to the 
United States Court of Appeals for the Tenth Circuit by a vote of 98 to 
zero. His confirmation was the eighth circuit court nominee to be 
confirmed in the almost 10 months since I became Chairman this past 
summer. Just today, the Senate Judiciary Committee voted on the 11th 
Court of Appeals nominee to come before the Committee in less than 10 
months. Thus, another Court of Appeals nominee is already on the Senate 
Executive Calendar and being scheduled for floor action.
  In a little less than 10 months since the change in majority, the 
Senate has confirmed 8 judges to the Courts of Appeals and held 
hearings on 3 others. In contrast, the Republican-controlled majority 
averaged only 7 confirmations to the Courts of Appeals per year. Seven. 
In the less than 10 months the Democrats have been in the majority, we 
have already exceeded the annual number of Court of Appeals judges 
confirmed by our predecessors. The Senate in the last 10 months has 
confirmed as many Court of Appeals judges as were confirmed in all of 
2000 and more than were confirmed in 1997 or 1999, and 8 more than the 
zero from 1996. Another way to put it is that within the last 10 
months, the Democratic majority in the Senate has confirmed as many 
Court of Appeals judges as were confirmed in the 2000 and 1996 sessions 
combined and confirmed more Court of Appeals judges than were confirmed 
in the 1999 and 1996 sessions combined or in the 1997 and 1996 sessions 
combined.
  The Republican majority assumed control of judicial confirmations in 
January 1995 and did not allow the Judiciary Committee to be 
reorganized after the shift in majority last summer until July 10, 
2001. During that period from 1995 through July 10, 2001, vacancies on 
the Courts of Appeals increased from 16 to 33, more than doubling.
  When I became chairman of a Committee to which Members were finally 
assigned on July 10, we began with 33 Courts of Appeals vacancies. That 
is what I inherited. Since the shift in majority last summer, 5 
additional vacancies have arisen on the Courts of Appeals around the 
country. With this week's confirmation of Judge O'Brien, we have 
reduced the number of circuit court vacancies to 30. That is, we have 
kept up with attrition by confirming 5 Court of Appeals judges and then 
acted to lower the number of vacancies by already confirming 3 
additional judges. Those are the facts.
  Since our Republican critics are so fond of using percentages, I will 
say that we will have now reduced the vacancies on the Courts of 
Appeals by almost 10 percent in the last 10 months. In other words, by 
confirming 3 more nominees than the 5 required to keep up with the pace 
of attrition, we have not just matched the rate of attrition, but 
surpassed it by 60 percent. I add this facetiously to show how 
ridiculous their use of percentages is in this setting.
  Rather than the 38 vacancies that would exist if we were making no 
progress, as some have asserted, there are now 30 vacancies--that is 
more than keeping up with the attrition on the Circuit Courts. 
Republican critics unfairly seek to attribute to the Democratic 
majority the lack of action by the Republican majority before the 
historic change last summer.
  While the Republican Senate majority increased vacancies on the 
Courts of Appeals by over 100 percent, it has taken the Democratic 
majority less than 10 months to reverse that trend, keep up with 
extraordinary turnover and, in addition, reduce circuit court vacancies 
overall. This is progress. Rather than having the circuit vacancy 
numbers skyrocketing, as they did overall during the prior 6\1/2\ 
years--more than doubling from 16 to 33--the Democratic-led Senate has 
reversed that trend. The vacancies numbers are moving in the right 
direction--down.
  It is not possible to repair the damage caused by longstanding 
vacancies in several circuits overnight, but we are improving the 
conditions in the 5th, 10th and 8th Circuits, in particular. The 
confirmation of Judge O'Brien this week made the second judge confirmed 
to the 10th Circuit in the last 4 months. Next week we will proceed 
with a nominee to the 6th Circuit.
  Overall, in little less than 10 months, the Senate Judiciary 
Committee has held 16 hearings involving 55 judicial nominations. That 
is more hearings on judges than the Republican majority held in any 
year of its control of the Senate. In contrast, one-sixth of President 
Clinton's judicial nominees--more than 50--never got a Committee 
hearing and Committee vote from the Republican majority, which 
perpetuated

[[Page S2934]]

longstanding vacancies into this year. Vacancies continue to exist on 
the Courts of Appeals in large part because a Republican majority was 
not willing to hold hearings or vote on more than half--56 percent--of 
President Clinton's Court of Appeals nominees in 1999 and 2000, and was 
not willing to confirm a single judge to the Courts of Appeals during 
the entire 1996 session.
  Despite the new-found concern from across the aisle about the number 
of vacancies on the circuit courts, no nominations hearings were held 
while the Republicans controlled the Senate in the 107th Congress last 
year. No judges were confirmed during that time from among the many 
qualified circuit court nominees received by the Senate on January 3, 
2001, or from among the nominations received by the Senate on May 9, 
2001.
  The Democratic leadership acted promptly to address the number of 
circuit and district vacancies that had been allowed to grow when the 
Senate was in Republican control. The Judiciary Committee noticed the 
first hearing on judicial nominations within 10 minutes of the 
reorganization of the Senate, and held that hearing on the day after 
the Committee was assigned new members.
  That initial hearing included a Court of Appeals nominee on whom the 
Republican majority had refused to hold a hearing the year before. We 
held unprecedented hearings for judicial nominees during the August 
recess. Those hearings included a Court of Appeals nominee who had been 
a Republican staff member of the Senate. We proceeded with a hearing 
the day after the first anthrax letter arrived at the Senate. That 
hearing included a Court of Appeals nominee. In a little less than 10 
tumultuous months, the Senate Judiciary Committee has held 16 hearings 
involving 55 judicial nominations--including 11 circuit court 
nominees--and we are planning to hold another hearing next week for 
half a dozen more nominees, including another Court of Appeals nominee. 
That is more hearings on judges than the Republican majority held in 
any year of its control of the Senate. The Republican majority never 
held 16 judicial confirmation hearings in 12 months and we have to do 
so in less than 10 months.
  The Senate Judiciary Committee is holding regular hearings on 
judicial nominees and giving nominees a vote in Committee, in contrast 
to the practice of anonymous holds and other obstructionist tactics 
employed by some during the period of Republican control. The 
Democratic majority has reformed the process and practices used in the 
past to deny Committee consideration of judicial nominees. We have 
moved away from the anonymous holds that so dominated the process from 
1996 through 2000. We have made home State Senators' blue slips public 
for the first time.
  I do not mean by my comments to appear critical of Senator Hatch. 
Many times during the 6\1/2\ years he chaired the Judiciary Committee, 
I observed that, were the matter left up to us, we would have made more 
progress on more judicial nominees. I thanked him during those years 
for his efforts. I know that he would have liked to have been able to 
do more and not have to leave so many vacancies and so many nominees 
without action.
  I hope to hold additional hearings and make additional progress on 
judicial nominees. In our efforts to address the number of vacancies on 
the circuit and district courts we inherited from the Republicans, the 
Committee has focused on consensus nominees for all Senators. In order 
to respond to what Vice President Cheney and Senator Hatch now call a 
vacancy crisis, the Committee has focused on consensus nominees. This 
will help end the crisis caused by Republican delay and obstruction by 
confirming as many of the President's judicial nominees as quickly as 
possible.
  Most Senators understand that the more controversial nominees require 
greater review. This process of careful review is part of our 
democratic process. It is a critical part of the checks and balances of 
our system of government that does not give the power to make lifetime 
appointments to one person alone to remake the courts along narrow 
ideological lines, to pack the courts with judges whose views are 
outside of the mainstream of legal thought, and whose decisions would 
further divide our nation.
  The Committee continues to try to accommodate Senators from both 
sides of the aisle. The Court of Appeals nominees included at hearings 
so far this year have been at the request of Senator Grassley, Senator 
Lott, Senator Specter, Senator Enzi and Senator Smith from New 
Hampshire--five Republican Senators who each sought a prompt hearing on 
a Court of Appeals nominee who was not among those initially sent to 
the Senate in May 2001. Next week's hearing will continue that effort 
and include a Court of Appeals nominee from Tennessee at the request of 
Senator Thompson.
  Each of the 45 nominees confirmed by the Senate has received the 
unanimous, bipartisan backing of the Committee. Only Judge Roger 
Gregory has had a single vote cast against his confirmation in all of 
the Senate votes on all of these nominees. The confirmation of Judge 
Davis is the 45th judicial nominee to be confirmed since I became 
Chairman last July. Like Judge Roger Gregory, this is the confirmation 
of a qualified nominee who could not get a hearing when the Republican 
majority controlled the Senate. I had hoped that at the end of the day, 
justice would be done. I am glad that this is that day, and that at the 
end of today Judge Davis will also have been considered and confirmed. 
These consensus nominees could and should have been acted upon before 
this year. I thank Judge Davis for his commitment and patience, and 
congratulate him and his family on this important day.
  Mr. HATCH. Madam President, I rise in support of the confirmation of 
Judge Legrome Davis to the U.S. District Court for the Eastern District 
of Pennsylvania.
  Judge Davis' nomination is yet another example of President Bush's 
bipartisan approach to judicial nominations. This is the second time, 
Judge Roger Gregory being the first, that this administration has 
renominated a candidate who was originally nominated by the previous 
adminstraiton. It is a rarity for a new adminstration to renominate a 
previous administration's judicial nominees, especially when the two 
administrations are of different parties. Clearly, the President is 
leading by example when he calls upon the Senate to rise above petty 
partisanship and provide fair hearings and prompt votes to every 
judicial nominee regardless of what party controls the White House or 
the Senate.
  I have had the pleasure of reviewing Judge Davis' distinguished legal 
career, and I have come to the conclusion that he is a fine 
Pennsylvania State judge who will only add to the distinguished Federal 
bench in the Eastern District of Pennsylvania.
  Judge Davis graduated from Princeton University and Rutgers-Camden 
School of Law. After graduation, he joined the Office of the District 
Attorney of Philadelphia as an Assistant District Attorney in the Law 
and Trial Divisions. Eventually, he rose to become Assistant Chief of 
Narcotics and then Chief of the Rape Unit.

  One of the many examples of his fine character revolves around a 
defendant's rape conviction before Judge Davis led the D.A.'s Rape 
Unit. Upon examination of new evidence, it became clear that the 
alleged victim, in the case, suffered from paranoid schizophrenia and 
had hallucinated the criminal episode. The investigation that freed the 
defendant was conducted by Davis.
  His record of rulings before the appellate courts is equally as 
impressive. Judge Davis has filed approximately 150 cases, of which 
only 3 were overturned on appeal--and the Pennsylvania Supreme Court 
reinstated his decision in one of those cases.
  Judge Davis has been a champion in reforming the Philadelphia court 
system. He helped author and was an early proponent of Philadelphia's 
differentiated case management system. This system, which groups 
defendants with similar case dispositions into one of four ``tracks,'' 
has resulted in a 47 percent reduction in the Felony-Waiver Unit's 
pending inventory.
  I am very pleased that we will confirm Judge Davis today.
  Mr. SPECTER. Madam President, in January 2002, Judge Legrome Davis 
was nominated by President Bush to serve on the United States District 
Court, Eastern District of Pennsylvania.

[[Page S2935]]

  The American Bar Association rated Judge Davis as well-qualified for 
a judgeship on the United States District Court for the Eastern 
District of Pennsylvania.
  Judge Davis presently serves on the Court of the Common Pleas of 
Philadelphia County, a position he has held since 1987.
  From 1992 until January 2001, Judge Davis served as the Supervising 
Judge of the Criminal Division, with principal responsibility for all 
issues of policy, planning and administration involving criminal case 
processing.
  During his tenure as Supervising Judge, numerous city, state and 
federal funding authorities awarded the First Judicial District more 
than nineteen million dollars to support supervisory endeavors for 
defendants developed by Judge Davis and administered under his 
direction.
  He is the Coordinator of the Female Offenders' Criminal Justice 
Treatment Network, a collaborative project linking the criminal justice 
and treatment communities in addressing the complex and special 
challenges of women in the criminal justice system.
  Judge Davis was integral in conceptualizing and implementing the 
court reforms which were integral to the suspension of the federal 
prison cap in 1995.
  Previously he worked for Ballard, Spahr, Ingersoll & Andrews, and the 
Office of the General Counsel of the University of Pennsylvania. He was 
also an Assistant District Attorney for nine years, serving in the 
Homicide, Narcotics, and Career Criminal Units, and was the Chief of 
the Rape Prosecution Unit when he left office to seek a state court 
judgeship.
  He has been honored by the Pennsylvania Trial Judges Association 
``Golden Crowbar Award, the Philadelphia Common Pleas Court Board of 
Judges Exceptional Service Award, the Philadelphia Bar Association; 
Thurgood Marshall Award, the Philadelphia Coalition for Victim 
Advocacy; Victim Advocacy Award and the Fraternal Order of Police 
Honorary Lifetime Membership--Lodge 92.
  Mr. REID. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Madam President, if I could announce to colleagues, this 
is the last vote tonight. There will not be any votes tomorrow. The 
Senate will not be in session tomorrow, and there will be no rollcall 
votes on Monday. The next rollcall vote will occur sometime Tuesday 
morning.
  I thank my colleagues. Have a good evening and a good weekend.
  I yield the floor.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Legrome D. Davis, to be United States 
District Judge for the Eastern District of Pennsylvania? The yeas and 
nays have been ordered, and the clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Hawaii (Mr. Inouye), and the Senator from Nebraska 
(Mr. Nelson) are necessarily absent.
  Mr. LOTT. I announce that the Senator from Oklahoma (Mr. Nickles), 
the Senator from Missouri (Mr. Bond), and the Senator from Kansas (Mr. 
Roberts) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 94, nays 0, as follows:

                       [Rollcall Vote No. 76 Ex.]

                                YEAS--94

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--6

     Bond
     Boxer
     Inouye
     Nelson (NE)
     Nickles
     Roberts
  The nomination was confirmed.

                          ____________________