[Congressional Record Volume 154, Number 95 (Tuesday, June 10, 2008)]
[Senate]
[Pages S5412-S5417]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF MARK STEVEN DAVIS TO BE UNITED STATES DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF VIRGINIA
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session to consider the following
nomination, which the clerk will report.
The legislative clerk read the nomination of Mark Steven Davis, of
Virginia, to be United States district judge for the Eastern District
of Virginia.
The ACTING PRESIDENT pro tempore. We now have 10 minutes of debate
equally divided between the chairman and the ranking member. Who yields
time?
If no one yields time, time will be charged equally to both sides.
The Senator from Missouri.
Mr. BOND. Mr. President, may I ask for 1 minute from the ranking
member.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BOND. Mr. President, my thanks to the committee leaders for
bringing forward the nominations to the Senate of Judge Greg Kays and
Stephen Limbaugh to be Federal district court judges for the Western
and Eastern District Courts of Missouri. Both Judge Kays and Judge
Limbaugh are outstanding nominees for the Federal bench. They share
bipartisan support, have fine legal minds, long records of public
service, and represent the values and character of my Missouri
constituents.
Both men's modesty matches the modest size of their Midwestern
hometowns. But as we have seen so many times in our history, great men,
men of learning, men of intellect and excellence, come from modest
places.
One should not doubt this to be the case. Values of fairness,
service, kindness, community, learning, self-reliance, and personal
responsibility are those that we value in our constituents, in our
small-town communities, and we should value in our judges. I think this
confirmation process has succeeded in producing two such men.
I thank the Chair, I thank my ranking member, and I yield the floor.
The ACTING PRESIDENT pro tempore. The majority leader.
Mr. REID. Mr. President, I have spoken to the chairman of the
Judiciary Committee and to the Republican leader. We will enter a
formal unanimous
[[Page S5413]]
consent for the Record at a subsequent time, but it appears at this
time we will have a vote on one of the remaining two judges at 3:30,
and the Judiciary Committee chair, Senator Leahy, has agreed we will
not have to vote on the second one. So there will be one vote on or
about 3:30 this afternoon.
Mr. LEAHY. Mr. President, will the Senator yield on the leader's
time?
I wanted to have a rollcall on this one, and do the other two at
whatever time the leader prefers by voice vote.
Mr. REID. I thank the Senator very much. That is wonderful. We can do
those before lunch, then.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask unanimous consent to have printed
in the Record the resumes of these three candidates. They were voted
out unanimously by voice vote of the committee, and I think their
confirmation is assured.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Mark Steven Davis
United States District Judge for the Eastern District of Virginia
Birth: 1962, Portsmouth, Virginia.
Legal Residence: Portsmouth, Virginia.
Education: Longwood University, 1980-1982; no degree;
University of Virginia, 1982-1984; B.A., May 1984; Washington
and Lee University School of Law; J.D., May 1988.
Primary Employment:
Staff Assistant, U.S. Senator John W. Warner, 1984-1985.
Law Clerk to Hon. John A. MacKenzie, U.S. District Court,
Eastern District of Virginia, 1988-1989.
Law Firm of McGuire Woods LLP: Associate, 1989-1996;
Partner, 1996-1998.
Partner, Law Firm of Carr & Porter LLC (no longer in
existence), 1998-2003.
Judge, Third Judicial Circuit of Virginia (Portsmouth
Circuit Court), 2003-Present; Chief Judge, July 2006-Present.
Selected Activities:
Virginia State Bar, 1988-Present: Litigation Section Young
Lawyers Committee, 1992-1996.
Board of Visitors, Regent University School of Law, 2004-
Present.
American Bar Association, 1989-1993.
Federal Bar Association, 1990-1998.
Virginia Bar Association, 1989-Present.
James Kent American Inn of Court, 2005-Present: Pupilage
Team Leader, 2007.
Chesapeake Bay Bridge and Tunnel Commission: Commissioner,
1999-2003; Secretary/Treasurer, 2000-2003.
Virginia International Terminals, Inc.: Board of Directors,
2000-2003; Secretary and Executive Committee, 2002-2003;
Audit Committee, 2000-2003.
Recipient, Top 40 Under 40, Dolan's Virginia Business
Observer Newspaper, 2001.
Recipient, Legal Elite Listing, Virginia Business Magazine,
2002.
ABA Rating: Unanimous ``Well Qualified.''
David Gregory Kays
United States District Judge for the Western District of Missouri
Birth: 1962, Kansas City, Missouri.
Legal Residence: Missouri.
Education: No degree, Drury University, 1981-1982; B.S.,
Southwest Missouri State University, 1985; J.D., University
of Arkansas School of Law, 1988.
Primary Employment: Attorney, Miller and Hutson Law Firm,
1988-1989. Assistant Public Defender, Office of the Special
Public Defender, 8/1989-12/1989. Prosecutor, Laclede County
Prosecuting Attorney's Office: Assistant Prosecuting
Attorney, 1988-1989; Chief Assistant Prosecuting Attorney,
1989-1991; Prosecuting Attorney, 1991-1995. City Attorney,
Lebanon, Missouri, 1992-1994. Judge, State of Missouri:
Associate Circuit Judge, Laclede County Circuit Court, 1995-
2004; Presiding Circuit Court Judge, 26th Judicial District,
2005-present.
Selected Activities: Board Chairman, First Christian
Church, 2007-present; Member, Missouri Task Force on
Alternative Sentencing, 2006-2007; Certificate Recipient,
National Judicial College, 2007; Recipient, Supreme Court of
Missouri Permancy Awards, 2006 and 2007; Adjunct Instructor,
Drury University, 1992-2004; Member, Laclede County Bar
Association: President, 1992; Member, Missouri Bar
Association.
ABA Rating: Substantial majority ``Qualified''/ Minority
``Not Qualified.''
Stephen Nathaniel Limbaugh, Jr.
united states district judge for the eastern district of missouri
Birth: 1952; Cape Girardeau, Missouri.
Legal Residence: Cape Girardeau, Missouri.
Education: B.A., Southern Methodist University, December
1973; J.D., Southern Methodist University School of Law,
December 1976; Masters of Law in the Judicial Process,
University of Virginia School of Law, May 1998.
Primary Employment: Associate, Limbaugh, Limbaugh &
Russell, 1977-1978; Assistant Prosecuting Attorney, Office of
Prosecuting Attorney, Jackson, Missouri, 1978; Prosecuting
Attorney, Office of Prosecuting Attorney, Jackson, Missouri,
1979-1982; Shareholder/Partner, Limbaugh, Limbaugh, Russell &
Syler, P.C., 1983-1987; Circuit Judge, 32nd Judicial Circuit
of Missouri, 1987-1992; Supreme Court Judge, Supreme Court of
Missouri, 1992-Present: Chief Justice, 2001-2003.
Selected Activities: Missouri Bar, 1977-Present: Fellow,
Missouri Bar Foundation, 1997-Present (Board member, 2001-
2003). American Bar Association, 1977-Present: Life Fellow,
American Bar Foundation; Litigation Section, 1985-Present;
Judicial Administration Division, 1987-Present. The
Federalist Society, 1993-Present. Judicial Conference of
Missouri, 1987-Present: Legislative Steering Committee, 1989-
1991; Executive Council, 1999-2003; Presiding Officer, 2001-
2003. Supreme Court of Missouri Committees: Chair, Commission
on Judicial Dept. Education, 1999-2001, 2005-Present.
Appellate Judicial Commission for the Missouri Nonpartisan
Court Plan: Chair, 2001-2003. State Historical Society of
Missouri: Board of Trustees, 2005-Present; First Vice
President, 2007-Present. Life Regent, National Eagle Scout
Association. Political Advocacy and Legislative Achievement
Award, Adoption and Foster Care Coalition of Missouri, 2001.
Distinguished Alumnus Award for Judicial Service, SMU Dedman
School of Law, 2007.
ABA Rating: Unanimous ``Well Qualified.''
Mr. WARNER. Mr. President, I rise today in support of an outstanding
Virginian, the Honorable Mark S. Davis, who has been nominated by the
President to serve as an article III judge on the U.S. District Court
for the Eastern District of Virginia. I am pleased to note that Judge
Davis also enjoys the strong support of my colleague, Senator Webb.
Judge Davis has been nominated to fill the seat that was vacated by
Judge T. S. Ellis, III, who has served as an active judge in the
Eastern District of Virginia for more than 19 years.
I have had the privilege of knowing Mark Davis for more than two
decades. He worked as an intern in my office while attending the
University of Virginia, and then later, in 1984, he began his
professional career as a staff assistant in my office before he went to
law school. After earning his J. D. from the Washington & Lee
University School of Law in 1988, he served as a law clerk for the
Honorable John MacKenzie on the U.S. District Court for the Eastern
District of Virginia.
Subsequent to his clerkship, he entered private legal practice, as a
litigation attorney on cases before both Federal and State courts in
several areas, including tort, maritime, and municipal and employment
law. In 2003, the Virginia General Assembly unanimously confirmed him
to serve as a judge on the Third Judicial Circuit of Virginia in
Portsmouth, VA; today, he serves as chief judge of this five-judge
circuit.
In my view, Judge Davis is eminently qualified to serve on the U.S.
District Court for the Eastern District of Virginia. In addition to
having the support of his home state Senators, he also received the
highest recommendation of the Virginia State bar and the American Bar
Association.
I thank the Judiciary Committee for favorably reporting this
exemplary nominee to the full Senate, and I urge my colleagues to vote
to confirm him.
Mr. WEBB. Mr. President, today it is my distinct pleasure to offer my
support along with my colleague Senator Warner for the nomination of
Judge Mark Davis to be a judge on the U.S. District Court for the
Eastern District of Virginia.
The career of this nominee is impressive. Judge Davis is regarded as
a patient, thoughtful individual who exhibits the highest degree of
ethical conduct and professionalism. After graduating law school, Judge
Davis began his legal career as a law clerk to Judge John A. MacKenzie
who served as judge on the U.S. District Court for the Eastern District
of Virginia, 1988-1989. In 1989, Judge Davis joined McGuire Woods, LLP,
where he worked as a partner from 1996 until 1998. Judge Davis has also
worked as partner at Carr & Porter LLC, 1998-2003. Since 2003, Judge
Davis has served on the Third Judicial Circuit of Virginia, and has
been the chief judge since 2006.
The Virginia Bar Association rated Judge Davis as ``highly
qualified.'' Judge Davis's written opinions reflect his keen intellect,
and the extent to which he values communicating his reasoning to
counsel and litigants. Further, Judge Davis is active in myriad
community and civic organizations. Judge Davis received his B.A. in
government from the University of Virginia in 1984, and his J.D. from
Washington and Lee University School of Law in 1988.
The Constitution assigns a critically important role to the Senate in
the advice and consent process related to
[[Page S5414]]
nominations for the Federal judiciary. These judgeships are lifetime
appointments, and Virginians expect me and Senator Warner to take very
seriously our constitutional duties. It is essential that the nominee
be respectful of the Constitution, impartial, and balanced toward those
appearing before him or her.
In light of these criteria, Senator Warner and I undertook a careful
and deliberative process to find the most qualified judicial nominees.
Our collaboration involved a thorough records review and rigorous
interviews. We are of the opinion that Judge Davis meets these high
standards. He was on the joint list of recommended judicial nominees
submitted to President Bush last year. We are pleased that President
Bush has chosen to respect our diligent bipartisan work.
I want to thank you, Mr. President, for the opportunity to make these
remarks about this outstanding Virginian. In particular, I want to
express my gratitude for the expeditious way the Senate has moved the
nomination of Judge Davis through the process during the 110th
Congress. Again, it is with pride that I join Senator Warner in
commending Judge Mark Davis to each of my colleagues in the Senate; and
I ask my fellow Senators to vote to confirm his nomination to the U.S.
District Court for the Eastern District of Virginia.
Mr. SPECTER. Mr. President, I wish to use the balance of my time to
talk about the procedures on the Energy bill.
I spoke yesterday about the problem created by the so-called
procedure of filling the tree. It is my hope that we will return to the
Energy bill and we will have an opportunity to offer amendments on the
bill--the global warming bill, I should specify. Last week, I filed a
series of amendments, and I hope we will return to the bill and will
not have the procedure of filling the tree thwart the opportunity for
Senators to offer amendments.
As I spoke at some length yesterday, we have devolved in this body
into a procedure where the trademark of the Senate--that is, where a
Senator is able to offer virtually any amendment on any matter at any
time--has been undercut. This has been a practice which has been
growing but was used not at all in bygone years. Senator Mitchell then
used it 9 times, Senator Lott matched him with 9, Senator Frist matched
him with 9, and Senator Reid has now used it 12 times.
Regrettably, when the tree is filled--an arcane practice not
understood very broadly--and then cloture is not invoked, people think
that Republicans are opposed to considering global warming. The fact is
that some 32 Republicans voted for cloture on the motion to proceed. So
it is my hope we will have an opportunity to debate this very important
subject and that there will be procedural steps taken so amendments can
be offered. The tradition of the Senate in the past has been to have
legislation offered, to debate, and if people are opposed, to
filibuster, and to have the issues considered. But we have found in
modern days that bills involving very important matters, such as the
Ledbetter Fair Pay Act, Senate bill 1843, got very short shrift indeed.
So it is my hope we will change the procedures.
I filed a resolution with the Rules Committee in February of 2007 to
have a change in the rules, but in the interim I hope we can alter our
procedures to take up these very important amendments.
I thank the Chair, and I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Mr. President, I ask for the yeas and nays on the
nomination.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There appears to be.
The yeas and nays are ordered.
Mr. LEAHY. Mr. President, today the Senate will confirm three more
nominations for lifetime appointments to the Federal bench.
The first nomination we consider is that of Mark Davis of Virginia to
fill a vacancy in the Eastern District of Virginia, and I commend the
Virginia Senators on this nomination. After years of controversial
nominations, Senators Warner and Webb have worked successfully with the
White House on a series of recent nominations for district and circuit
court seats, including that of Judge G. Steven Agee of Virginia, who
was confirmed to a seat on the Fourth Circuit last month.
I was pleased to accommodate Senator Bond's request that we proceed
promptly in committee to consider the nominations of David Kays and
Stephen Limbaugh to vacancies in the Western and Eastern Districts of
Missouri. Both nominees have the support of Senator McCaskill. I wish
Justice Ronnie White, who went on to become Missouri's first African-
American chief justice, had received similar consideration when
President Clinton nominated him to the Eastern District of Missouri.
Instead, more than 2 years after he was nominated, and 2\1/2\ months
after he was reported out of the Judiciary Committee for a second time,
his nomination was voted down on a party line vote, not a single
Republican Senator voting to confirm him. I also recall many of
President Clinton's judicial nominees who were stalled because of
anonymous Republican objections to their politics or their practice
area. One of the two nominees from Missouri that we consider today is
Rush Limbaugh's cousin. A similar lineage would have resulted in a
pocket filibuster when the Senate was controlled by a Republican
majority during the Clinton administration. So today, in contrast to
the treatment of President Clinton's nominees, we proceed to consider
these two nominations.
I noted last week the sudden concern of the minority leader for
district court nominations. Perhaps he did not have a chance to see my
statement from earlier in the week in which I noted that with
Republican cooperation, we have the opportunity this work period
confirm five nominees already reported favorably by the Judiciary
Committee? Of course, today we would have more than those five
nominations on the Senate's Executive Calendar had Republicans not
stalled this President's nominations of Judge Helene White and Ray
Kethledge to the Sixth Circuit, and the nomination of Stephen Murphy to
the Eastern District of Michigan. As I said last week, with cooperation
from across the aisle, the Senate is poised to have confirmed four
circuit court judges and 11 district court judges before the Fourth of
July recess, confirming a total of 15 lifetime appointments.
I recall Senator Specter's frustration when he was chairman with a
Republican majority at the end of the last Congress, and Republican
holds prevented the confirmation of 14 district court nominations.
Democrats on the Judiciary Committee had worked hard to expedite the
nominations at the end of the last Congress. Many of them were for
vacancies deemed judicial emergencies, including three in one Federal
district in Michigan where several judges of senior status--one over 90
years old--continued to carry heavy caseloads to ensure that justice
was administered in that district. Now, after the successful efforts of
the Senators from Michigan in conjunction with the White House, I hope
Republicans will not object to filling three more judicial emergency
vacancies in Michigan.
The complaints by the minority leader and his party about district
court nominations ring as hollow as their complaints that Senate
Democrats did not make best efforts to meet the goal he and the
majority leader set of moving three circuit court nominations by
Memorial Day. As at the end of the last Congress with those 14 district
court nominations, Republicans resisted expediting the committee's
consideration of the Michigan nominations before Memorial Day. They
badgered the nominees, and sent scores of written follow up questions.
At the May 7 hearing, the Republicans chose to complain that the
committee was moving too fast, before the committee had received
updated ABA ratings on the nominations. They pressed Judge White with
scores of questions, failing to pose those same questions to Mr.
Kethledge, a candidate for the same circuit. They demanded an extremely
rare closed hearing to further question Judge White. Given their
actions and their resistance to the White House's package of
nominations--nominations made by this President--they made it
impossible for the Committee to consider and report the Michigan
nominations before the Memorial Day recess.
[[Page S5415]]
We have now received the updated ABA rating for Judge White's
nomination. She received a well qualified rating. That did not come as
any surprise. She has served ably on the Michigan state appellate
courts and acquired additional experience in the decade since she was
nominated by President Clinton and the Republican Senate majority
refused to consider her nomination.
Ultimately, the Republican-led Senate left open five vacancies on the
Fourth Circuit and four on the Sixth Circuit. With the Agee
confirmation last month, we have already reduced vacancies on the
Fourth Circuit to less than there were at the end of the Clinton
administration, when a Republican-controlled Senate had refused to
consider any nominees to that circuit during the last 2 years of the
Clinton Presidency. If Republicans cooperate in considering the
Michigan nominees, we will have filled every vacancy in the Sixth
Circuit. Overall, when Republicans ran the Senate and were stalling
consideration of President Clinton's nominees, circuit vacancies rose
from 11 to 26, and it reached 32 during the transition to President
Bush. We are in position to reduce circuit vacancies by three-quarters,
to an historic low.
In contrast to the Republican Senate majority that used the Clinton
years to more than double circuit court vacancies around the country,
the Senate has already reduced circuit court vacancies by almost two-
thirds, We are poised to complete Senate consideration of the two Sixth
Circuit nominations. If the Republican minority allows that progress,
yet another circuit will be without any vacancies. In fact, we would
reduce the total number of circuit court vacancies across the Nation to
single digits for the first time in decades.
If instead we focus on the controversial nominations as the
Republicans want, we run the risk of embroiling the committee and the
Senate in months of debate, foreclosing the opportunity to make
progress where we can. We saw what happened with our last contentious
nomination--that of Leslie Southwick. It took 5\1/2\ months from the
time of the hearing to his confirmation.
The minority leader and the Wall Street Journal continue to point to
the confirmation of 15 circuit judges in 1999 and 2000. Sometimes, the
number is 17. Of course, their mythical ``statistical average'' of
selected years ignores the crises the Republicans had created by not
considering circuit nominees in 1996, 1997 and 1998, the fact that they
refused to confirm a single circuit nominee during the entire 1996
session, the fact that they returned 17 circuit court nominees without
action to the White House in 2000, the public criticism of Chief
Justice Rehnquist that helped moderate their stalling and the fact that
they more than doubled circuit court vacancies while pocket
filibustering Clinton nominees.
The minority leader only reaches this mythical statistical by taking
advantage of the high confirmation numbers of Democratic-led Senates
confirming the nominees of President Reagan and the first President
Bush. They ignore their own record of doubling vacancies during the
Clinton administration. They do not like to recall that during the 1996
session, when a Republican majority controlled the Senate during a
Presidential election year, they refused to confirm any circuit court
judges at all--not one. Their practice of pocket filibustering
President Clinton's judicial nominees led Chief Justice Rehnquist,
hardly a Democratic partisan, to criticize them publicly. Even he was
appalled by the actions of the Republican Senate majority. In his 1996
Year-End Report on the Federal Judiciary, he wrote:
Because the number of judges confirmed in 1996 was low in
comparison to the number confirmed in preceding years, the
vacancy rate is beginning to climb. When the 104th Congress
adjourned in 1996, 17 new judges had been appointed and 28
nominations had not been acted upon. Fortunately, a
dependable corps of senior judges contributes significantly
to easing the impact of unfilled judgeships. It is hoped that
the Administration and Congress will continue to recognize
that filling judicial vacancies is crucial to the fair and
effective administration of justice.
When that shot across the bow did not lead the Republican Senate
majority to reverse course, Chief Justice Rehnquist spoke up, again, in
his 1997 Year-End Report on the Federal Judiciary. It was a salvo from
a Republican Chief Justice critical of the Republican Senate
leadership:
Currently, 82 of the 846 Article III judicial offices in
the Federal Judiciary--almost one out of every ten--are
vacant. Twenty-six of the vacancies have been in existence
for 18 months or longer and on that basis constitute what are
called ``judicial emergencies.'' In the Court of Appeals for
the Ninth Circuit, the percentage of vacancies is
particularly troubling, with over one-third of its seats
empty.
Judicial vacancies can contribute to a backlog of cases,
undue delays in civil cases, and stopgap measures to shift
judicial personnel where they are most needed. Vacancies
cannot remain at such high levels indefinitely without
eroding the quality of justice that traditionally has been
associated with the Federal Judiciary. Fortunately for the
Judiciary, a dependable corps of senior judges has
contributed significantly to easing the impact of unfilled
judgeships.
It was only after the scorching criticism by a Republican Chief
Justice that the Republican Senate majority modified its approach in
order to allow some of the nominations that had been held back for
years to finally proceed. Having built up scores of vacancies, some
were allowed to be filled while the Republican Senate majority
carefully kept vacant circuit court positions to be filled by President
Clinton's successor. It is in that context that Republican claims of
magnanimity must be seen for what it was. It is in that context that
the eight circuit confirmations in 2000 must be evaluated while the
Republican Senate majority returned 17 circuit nominations to President
Clinton at the end of that session without action.
In stark contrast, the Democratic Senate majority has worked steadily
and steadfastly to lower vacancies and make progress, and we have.
I have placed the two Michigan Sixth Circuit nominations on the
agenda for the committee's business meeting this week. With cooperation
from the Republicans, we can consider and vote on these nominations at
that time. That should provide the Senate with the opportunity to
consider them before the Fourth of July recess, bringing to four the
number of circuit court nominees confirmed this year. Four would meet
the Republican average for 1996 and 2000, and beat their total in the
1996 session by four.
The history is clear. On June 1, 2000, when a Republican Senate
majority was considering the judicial nominees of a Democratic
President in a Presidential election year, there were 66 judicial
vacancies. Twenty were circuit court vacancies, and 46 were district
court vacancies. Those vacancies were the result of years of Republican
pocket filibusters of judicial nominations. This year, by comparison
there are just 47 total vacancies with only 11 circuit vacancies and 36
district court vacancies. After today, there will be just 44 total
vacancies. If we can continue to make progress this month, the current
vacancies could be reduced to fewer than 40, with only 9 circuit court
vacancies and 30 district court vacancies.
When Republicans were busy pocket filibustering Clinton nominees,
Federal judicial vacancies grew to more than 100, with more than 30
circuit vacancies.
When I became Chairman in the summer of 2001, we quickly--and
dramatically--lowered vacancies. The 100 nominations we confirmed in
only 17 months, while working with a most uncooperative White House,
reduced vacancies by 45 percent.
After the four intervening years of a Republican Senate majority,
vacancies remained about level.
It is the Democratic Senate majority that has again worked hard to
lower them in this Congress. We have gone from more than 110 vacancies
to less than 50 and are heading to less than 40. With respect to
Federal circuit court vacancies, we have reversed course from the days
during which the Republican Senate majority more than doubled circuit
vacancies. It bears repeating--circuit vacancies have been reduced by
almost two-thirds and have not been this low since 1996, when the
Republican tactics to slow judicial confirmations began in earnest.
Consider for a moment the numbers: After another productive month,
just 9 of the 178 authorized circuit court judgeships will remain
vacant--just 9--a vacancy rate down from 18 percent to just 5 percent.
With 168 active appellate judges and 104 senior status judges serving
on the Federal Courts of Appeals, there are 272 circuit court judges. I
expect that is the most in our history.
[[Page S5416]]
The President has not nominated anyone to 16 of the current judicial
vacancies. He has refused since 2004 to work with the California
Senators on a successor to Judge Trott on the Ninth Circuit. The
district court vacancies without nominees span from those that arose in
Mississippi and Michigan in 2006, to several from 2007 in Pennsylvania,
Michigan, Indiana and the District of Columbia, to others that arose
earlier this year in Kansas, Virginia, Washington, and several in
Colorado and Pennsylvania.
Disputes over a handful of controversial judicial nominations have
wasted valuable time that could be spent on the real priorities of
every American. I have sought, instead, to make progress where we can.
The result is the significant reduction in judicial vacancies.
In fact, our work has led to a reduction in vacancies in nearly ever
circuit. Both the Second and Fifth Circuits had circuit-wide
emergencies due to the multiple simultaneous vacancies during the
Clinton years with Republicans in control of the Senate. Both the
Second Circuit and the Fifth Circuit now are without a single vacancy.
We have already succeeded in lowering vacancies in the Second Circuit,
the Fourth Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth
Circuit, the Ninth Circuit, the Tenth Circuit, the Eleventh Circuit,
the DC Circuit, and the Federal Circuit. Circuits with no current
vacancies include the Seventh Circuit, the Eighth Circuit, the Tenth
Circuit, the Eleventh Circuit and the Federal Circuit. When we are
allowed to proceed with President Bush's nominations of Judge White and
Ray Kethledge to the Sixth Circuit, it will join that list of Federal
circuits without a single vacancy.
My approach has been consistent throughout my chairmanships during
the Bush Presidency. The results have been positive. Last year, the
Judiciary Committee favorably reported 40 judicial nominations to the
Senate and all 40 were confirmed. That was more than had been confirmed
in any of the three preceding years when a Republican chairman and
Republican Senate majority managed the process.
Despite this progress, of course, some partisans seem determined to
provoke an election year fight over nominations. The press accounts are
filled with threats of Republican reprisals. The May 14 issue of Roll
Call boasted the following headline: ``GOP Itching for Fight Over
Judges; Reid's Pledge to Move Three Before Recess Fails to Appease
Minority.'' Then in a recent article in The Washington Times, we read
that the Republican fixation on judges is part of an effort to bolster
Senator McCain's standing among conservatives. There seem to be no
steps we could take to satisfy Senate Republicans on nominations,
because they are using it as a partisan issue to rev up their partisan
political base.
The Republican effort to create an issue over judicial confirmations
is sorely misplaced. Last month we experienced the greatest rise in
unemployment in a single month in over two decades, bringing the total
job losses for the first 5 consecutive months of this year to over
325,000. Americans are now facing increasing burdens from the soaring
price of gas, high food prices, rising unemployment and a home mortgage
foreclosure and credit crisis.
This year we have seen the worst plunge in new homes sales in two
decades. The press reported that new home sales fell 8.5 percent in
March, the slowest sales pace since October 1991, and the median price
of a home sold dropped 13.3 percent compared to the previous year. That
was the biggest year-over-year price decline in four decades. You would
have to go back to July 1970 to find a larger decline.
Unfortunately, this bad economic news for hard-working Americans is
nothing new under the Bush administration. During the Bush
administration, unemployment is up more than 20 percent and trillions
of dollars in budget surplus have been turned into trillions of dollars
of debt, with an annual budget deficit of hundreds of millions of
dollars. Last week, the price of oil soared to nearly $139 a barrel,
nearly twice what it was at this time last year. When President Bush
took office, the price of gas was $1.42 a gallon. Today, it is at an
all-time high of over $4.00 a gallon.
According to a recent poll, 81 percent of Americans today believe
that our country is headed in the wrong direction. It costs more than
$1 billion a day--$1 billion a day--just to pay down the interest on
the national debt and the massive costs generated by the disastrous war
in Iraq. That's $365 billion this year that would be better spent on
priorities like health care for all Americans, better schools, fighting
crime, and treating diseases at home and abroad.
In contrast, one of the few numbers actually going down as the
President winds down his tenure is that of judicial vacancies. Senate
Democrats have worked hard to make progress on judicial nominations,
lowering circuit court vacancies by almost two-thirds from the level to
which the Republican Senate majority had built them. Any effort to turn
attention from the real issues facing Americans to win political points
with judicial nominations is neither prudent, nor productive.
Today we confirm three nominations for lifetime appointments. The
first, Mark S. Davis, currently serves as Chief Judge of the Portsmouth
Circuit Court, Third Judicial Circuit of Virginia. Prior to his
appointment to the bench in 2003, Judge Davis worked in private
practice at several Virginia law firms.
David Gregory Kays currently serves as the presiding circuit court
judge for the Twenty-Sixth Judicial Circuit for the State of Missouri,
where he has served since his first election in 2005. Previously, Judge
Kays served as an associate circuit judge for Laclede County Circuit
Court in Missouri and as chief assistant prosecuting attorney in
Laclede County.
Stephen N. Limbaugh is a supreme court judge and former chief justice
on the Supreme Court of Missouri. Previously, Judge Limbaugh was
appointed and then elected Circuit Judge for the 32nd Judicial Circuit
of Missouri. Before his career on the State bench, Judge Limbaugh was
an elected prosecuting attorney and also worked in private practice.
So today we make progress, and the Senate is likely to confirm three
additional lifetime appointments to the Federal bench. I congratulate
the nominees and their families on their confirmation today.
Mr. President, how much time remains on either side?
The ACTING PRESIDENT pro tempore. Two minutes twenty seconds for the
Senator from Virginia, and 33 seconds to the Senator from Pennsylvania.
Mr. LEAHY. Mr. President, I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask unanimous consent to yield 1 minute
to the Senator from Virginia.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. WARNER. Mr. President, I was very privileged to submit the name
of Mr. Davis to the President of the United States, and I am greatly
appreciative to the Senate to now come to the question of his
confirmation. But I think it would be interesting if I were to point
out to all those following it that this individual was a former member
of my staff.
I think it shows the incentive of those many staff persons all
throughout our system who contribute so much to the work of our
individual Senators that they too can, through their service, lay the
foundation to someday achieve this recognition by the Senate in which
they worked.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Virginia.
Mr. LEAHY. I yield to Senator Webb on my time, Mr. President.
Mr. WEBB. Mr. President, I very quickly wish to associate myself with
the remarks of the senior Senator from Virginia and to emphasize that
we jointly examined a whole array of nominees for this position. This
individual, perhaps because of and perhaps in spite of the fact he
worked for the senior Senator from Virginia, is considered highly
qualified by Members on this side of the aisle.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Mr. President, I would commend one more time the two
Senators from Virginia, both dear friends of mine, for the fact we
worked as one
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Democrat, one Republican with the White House to get us past this
impasse. And I commend President Bush for withdrawing controversial
nominees and working toward consensus nominees. That is why this
nominee will go through, I suspect unanimously, in this body.
I also commend the two Senators from Missouri, Senators Bond and
McCaskill, for working together.
Has all time been yielded back?
The ACTING PRESIDENT pro tempore. Yes, it has.
The question is, Will the Senate advise and consent to the nomination
of Mark Steven Davis, of Virginia, to be a United States district judge
for the Eastern District of Virginia?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Byrd), the Senator from New York (Mrs. Clinton), the Senator from
Massachusetts (Mr. Kennedy), and the Senator from Illinois (Mr. Obama)
are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. Graham) and the Senator from Arizona (Mr.
McCain).
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 94, nays 0, as follows:
[Rollcall Vote No. 148 Leg.]
YEAS--94
Akaka
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brown
Brownback
Bunning
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Martinez
McCaskill
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
Wyden
NOT VOTING--6
Byrd
Clinton
Graham
Kennedy
McCain
Obama
The nomination was confirmed.
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