[Congressional Record Volume 155, Number 167 (Monday, November 9, 2009)]
[Senate]
[Pages S11273-S11282]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                        Fall of the Berlin Wall

  It is also a special day in world history. Today is the day the 
Berlin Wall came down. I was filled with excitement on that wonderful 
day because the roots of my own heritage lie in Poland. We are proud 
American citizens, but we kept the heritage of the old country alive in 
our home, particularly because Poland, after World War II, was sold out 
at Yalta and Potsdam through an agreement that was ill-conceived, and 
history bore the point.
  We watched Poland fall as Hungary and the Czech Republic and others 
behind the Iron Curtain. They were called captive nations. Then we saw 
in Berlin that another wall went up and began the famous Berlin Airlift 
where America came to the rescue. They themselves in East Berlin were 
behind another version of the Iron Curtain called the Berlin Wall.
  Today we commemorate that 20 years ago--through nonviolent 
participation and the efforts of people such as Ronald Reagan, Maggie 
Thatcher, the world's prayers, a strong Democratic United States of 
America saying, ``Mr. Gorbachev, tear down that wall''--that wall came 
down.
  It started when an obscure electrician jumped over a wall in a 
shipyard in Gdansk. His name was Lech Walesa. It started the Solidarity 
movement. It sparked all of Central Europe through dissidents such as 
Haval. It led finally, through political leadership--such as President 
Reagan, such as Maggie Thatcher, such as all of us here--to bring down 
that wall.
  So today we commemorate bringing down the Berlin Wall, bringing down 
the Iron Curtain. When we elect Andrew Davis as an African American to 
the Fourth Circuit, that famous Fourth Circuit with roots deep in the 
South, we are going to bring down another wall. But is that not what a 
great democratic nation does? We bring down walls through democratic 
action, through commitment and resolve, and doing it through 
nonviolence.
  This is indeed a great day for the world and a great day for Andrew 
Davis and a very special day for me.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Madam President, let me first compliment my colleague, 
Senator Mikulski, for her leadership in bringing forward the nomination 
of Judge Davis to the circuit court of appeals. I join her in her 
comments about the fall of the Berlin Wall, the importance that meant 
not just for Europe. The Berlin Wall represented not only a divided 
city, a divided country, but a divided continent. And the fall of that 
wall that we commemorate of 20 years

[[Page S11275]]

ago has significance well beyond that one city.
  I was privileged to be in Berlin as the wall came down and will never 
forget those moments.
  It is also nice to see my colleague on the Senate floor without the 
need of any aid. She has been a fighter all of her life. She has been a 
fighter during this episode. She never missed a beat as far as 
representing the people of Maryland.
  But I particularly want to point out to my colleagues how proud I am 
of Senator Mikulski for the manner in which she has handled judicial 
appointments in our State. She is interested, as I am, in getting the 
very best on our Federal courts, and in the process that was set up for 
us to make recommendations to the President and make recommendations to 
our colleagues on the confirmation of judges from those who apply from 
Maryland. This represents an open process, a process that encourages 
our very interest to apply and become Federal judges, and one that is 
solely aimed at getting the very best talent onto our Federal courts.
  That is certainly true with Judge Davis. It is certainly true with 
that nomination. Judge Davis had a hearing before the Judiciary 
Committee in April. In June, our committee reported him out favorably 
with a strong bipartisan vote of 16 to 3.
  I am not going to go through all of the points that Senator Mikulski 
raised as far as his background. But I do want to underscore a few 
points I think are very important in the filling of this particular 
judicial position.
  Judge Davis has strong roots in Maryland. This is a Maryland seat on 
the Fourth Circuit. He was born in and raised in Baltimore. He is still 
a resident of Baltimore. Judge Davis has an exceptional record of legal 
experience in our State, including working as an assistant U.S. 
attorney, as a State district court judge, as a State circuit court 
judge, and now as a U.S. district judge.
  He received his bachelor's degree from the University of Pennsylvania 
and graduated cum laude with his J.D. degree from the University of 
Maryland School of Law where he still teaches classes as an adjunct 
faculty member.
  He served as a district judge for the U.S. District of Maryland since 
his Senate confirmation in 1995. You see Judge Davis has deep roots in 
Maryland and deep roots in the judicial branch of government.
  He has a longstanding record that he has demonstrated in protecting 
civil rights and liberties. I agree with my colleague, Senator 
Mikulski, that one of the principal standards we want to see in judges 
on our courts is an understanding of our Constitution and the 
protection it provides our citizens. That is particularly important on 
our circuit court of appeals.
  To give you one example of Judge Davis's record in protecting the 
rights of our people, this was a landmark decision on civil rights, 
Reid v. Glendening, where Judge Davis ruled that the Baltimore City 
Courthouses were not wheelchair accessible, in violation of the 
Americans with Disabilities Act. He then ordered the city and State to 
create a plan to make the buildings accessible.
  I think that is pretty gutsy when we realize that some of the support 
our judiciary needs comes from local government. Yet Judge Davis did 
what was required under our Constitution.
  He has been praised by lawyers in Maryland as a smart, evenhanded, 
fair, and open-minded judge. He has served as a judge for 22 years. He 
has handled somewhere around 5,300 cases. Judge Davis received a ``well 
qualified'' rating from the American Bar Standing Committee on the 
Federal judiciary.
  If confirmed, Judge Davis would be the third African-American judge 
to serve in the Fourth Circuit, which has one of the highest 
percentages of minority populations of any circuit in the country.
  As my colleague pointed out, the Fourth Circuit has one of the 
highest vacancy rates of any court, any circuit in our Nation. Five out 
of the fifteen seats are vacant, which constitutes one-third of the 
appellate court. Indeed, Judge Davis is a replacement for Judge Francis 
Murnaghan, who died in August of 2000.
  Judge Murnaghan also had a lifelong record as a Maryland resident who 
served on the Federal bench for 20 years and was one of the most 
respected lawyers and judges in our State. Judge Davis served as a law 
clerk for Judge Murnaghan on the Fourth Circuit from 1979 to 1980. So I 
think this is a very appropriate appointment.
  I am proud to join the senior Senator from Maryland, Ms. Mikulski, in 
recommending to our colleagues the confirmation of Judge Davis. We 
believe he will continue the great tradition, the great record he has 
established as a Federal judge, as a State judge, and he will continue 
that when confirmed by this body to serve on the Circuit Court of 
Appeals for the Fourth Circuit.

  We are proud to recommend his confirmation to our colleagues. With 
that, I see that the senior Republican on the Judiciary Committee, 
Senator Sessions, is on the Senate floor.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I would also like to speak on the 
Davis nomination and reluctantly I will speak in opposition to that 
nomination. There has been some discussion on the Senate floor today 
and previously in more detail about the need for the circuit judges. 
But I would just point out, having been through this system quite a 
bit, that during the 110th Congress four highly qualified consensus 
nominees to that court were presented to the Senate by President Bush 
and were not confirmed: Judge Robert Conrad, Judge Glen Conrad, Mr. 
Steve Matthews, and Mr. Rod Rosenstein.
  I remember Judge Conrad. He is the presiding judge of his district 
and had been a U.S. attorney. I remember him testifying during 
President Clinton's difficulties, and then Attorney General Janet Reno 
looked all over the U.S. Federal prosecuting ranks to pick a U.S. 
attorney who would be a special prosecutor whom she would select to 
prosecute one of the allegations against President Clinton.
  She chose Mr. Conrad. He concluded that there were no charges in that 
matter to be brought against President Clinton and was later appointed 
a Federal judge in the district and was confirmed, but he was blocked 
for the court of appeals. I always knew he would be a good decisive 
judge since he was a point guard on the University of North Carolina 
basketball team. They have to make decisions. They have to make 
decisions quickly.
  So I would say a lot of effort went into confirming judges for 
vacancies that are not there today. Mr. Rosenberg was nominated to the 
seat as a judicial emergency in November of 2007, the very seat to 
which Judge Davis has been nominated. He was not confirmed. In fact, my 
colleagues on the other side of the aisle succeeded in holding that 
vacancy, this vacancy, open for 9 years.
  I find it breathtaking that people would suggest that the 
Republicans, who tried to fill that vacancy for 9 years and had the 
nominees blocked, were responsible for vacancies which have been there 
for a long time. I find that quite an odd thing.
  The ABA reported Mr. Rosenstein unanimously ``well qualified.'' In 
2005 he was confirmed unanimously to be U.S. attorney for Maryland. 
Prior to his service as U.S. attorney, he held a number of positions in 
the Department of Justice under both Republican and Democratic 
administrations. Despite his stellar qualifications, he waited 414 days 
for a hearing and never got one. So his nomination expired in January 
of this year.
  The reason, one reason, given for blocking his nomination was that he 
was doing a good job as U.S. attorney in Maryland, and that is where we 
need to keep him. Well, forgive me if I think that is a bit much, and I 
certainly do not think we need to have the outrage from the other side 
about vacancies on this court since they are a direct product of the 
efforts of my colleagues to keep that vacancy open.
  But Judge Davis has fared much better than those four nominees did in 
the last Congress. He received a hearing a mere 27 days after his 
nomination. A committee vote occurred just 36 days later. Today the 
full Senate will vote on his nomination.
  I would just say I think we need to take time to look at nominees and 
ask the tough questions. We are not a rubberstamp. Good nominees ought 
to

[[Page S11276]]

be confirmed. Sometimes we just have a disagreement, like we will about 
Judge Davis, and we will have a vote. They will be confirmed or not 
confirmed.
  I would like to point out, however, that the average time from 
nomination to confirmation for nominees to the courts of appeals 
submitted by President Bush was 350 days, and that was the average. The 
majority of President Bush's first nominees, the first group--and Judge 
Davis is part of President Obama's first group--waited years for 
confirmation.
  Some of them never even got a hearing, despite being highly 
qualified, outstanding nominees. So Judge Davis has done pretty well in 
getting his case before the Senate and being able to get a vote. The 
fact is, nominees are moving much faster than they did during the Bush 
years. But we do have a duty to fulfill in analyzing nominees because 
they are being considered for a lifetime appointment, an appointment to 
the court in which the only thing that constrains them in how they 
conduct their daily business is their personal integrity, their 
personal restraint, and the only thing that reduces the number of 
errors they might make is their ability and determination to do the 
right thing.
  Judge Davis is currently a judge on the Federal trial court in 
Maryland. During his time on the bench, unfortunately, he has been 
reversed by the Fourth Circuit, the very court to which he is now being 
nominated, in a number of troubling cases. He has been criticized by 
that appellate court for misapplying the law, for throwing out relevant 
and lawfully obtained evidence and wrongfully dismissing cases where 
there were genuine unresolved issues between the parties.
  If Judge Davis did not adequately assess the facts or apply the law 
in these fairly direct and simple cases, it raises a question as to why 
he would be qualified to be promoted to the Fourth Circuit, the 
appellate court, one step below the U.S. Supreme Court.
  One of my colleagues on the Judiciary Committee argued that district 
judges are going to be reversed from time to time and that if we held 
every reversal against a nominee, no judge would ever be elevated to 
the court of appeals. That is a fair point. Even the best trial judge 
occasionally may be reversed by an appellate court. But I felt the 
responsibility to look at these reversals and ask whether these are 
normal kinds of reversals that could occur in tough cases. I have to 
say, I believe the cases reveal a disturbing pattern of mistakes, 
mistakes that consistently favor criminal defendants and evidence an 
anti-law enforcement tendency. That, as a former prosecutor in Federal 
court, makes me a bit nervous. Many of the rulings a Federal judge 
makes against a Federal prosecutor cannot be appealed. It is an awesome 
power they have.
  These mistakes have real-world consequences for law enforcement 
officers who are out on the streets doing their best every day to 
follow the already complex body of law and rules required by the 
courts. Police train and work hard to try to do the things they are 
required to do by courts. Sometimes the courts have caused them to do 
things that are unwise, but they try to do them anyway. Yet in Judge 
Davis' courtroom, the rules seem to change from case to case. It is a 
dangerous thing. It leaves police unsure of how to comply with the law 
when they are trying to protect citizens from criminal activities. 
These kinds of mistakes and rulings in effect allow criminals to go 
free on technicalities.
  Not only do the shifting ground rules make a police officer's job 
nearly impossible, these types of errors require appeals. Appeals cost 
money. They take time. They delay justice. Not only are many of Judge 
Davis' decisions wrong as a matter of law, they have an extremely 
detrimental impact on the workings of the criminal justice system. 
Within the last 5 years alone, the Fourth Circuit has reversed Judge 
Davis 13 times for errors that seem to consistently favor criminal 
defendants. Even more troubling is that those errors are basic errors 
of law. I have studied the cases and the issues involved. It seems to 
me these are errors that should not have been made. They raise doubts 
in my mind about whether he should be elevated--he has a lifetime 
appointment on the Federal district court--to a lifetime appointment on 
the court of appeals.
  One of the most troubling cases he has ruled on was the case of 
United States v. Kimbrough. There the defendant was arrested in his 
mother's house. Police found him in the basement cutting cocaine, the 
``knife on the mirror'' type cutting of cocaine. After the arrest and 
before police could read the defendant his Miranda warnings, the 
defendant's mother asked him if he had anything else in the basement--
not the police, his mother. The defendant said he had a gun. The police 
went down and found the gun. They charged the defendant with unlawful 
possession of a firearm and possession of cocaine, both. The firearm 
charge would normally carry a mandatory penalty in addition to the 
cocaine possession charge.
  Apparently, the judge didn't like that. Judge Davis threw out the 
defendant's statement that he had a gun because he said he had not been 
given his Miranda warning: You have a right to remain silent. The case 
went to the court of appeals, and he was reversed. The court of appeals 
in Kimbrough, the court he wants to sit on, had this to state, which is 
pretty obvious to me:

       The defendant's mother ``is a private citizen, her 
     spontaneous questioning of [the defendant] alone, independent 
     of the police officers, could never implicate the Fifth 
     Amendment.''

  Of course not. The Miranda warning is a court-created rule. It is not 
in the Constitution. Prior to its creation, police didn't give those 
warnings. But it is designed to help deter police from incriminating an 
individual and using the power of their badge to say something they 
didn't want to voluntarily say. But this was a question by the mother, 
not the police. It can, as the court said, never implicate the Fifth 
Amendment. The case was reversed after how many months and how much 
expense, we don't know. I do find it difficult to understand how that 
mistake was made.
  Another of Judge Davis' cases that I find extremely troubling is 
United States v. McNeill. In that case, the defendant threatened to 
kill his girlfriend while in the presence of a police officer. What did 
the police officers do? They arrested him. At a minimum, this is a 
harassment charge, I submit, to threaten someone's life in the presence 
of the police. What would happen if the police officers hadn't arrested 
the man and they had walked off and left him there with his girlfriend 
and he had killed her? What would the public say then about the police 
officers? What would the average citizen say: Did you do your duty? 
Didn't you have the ability to make an arrest?
  Judge Davis said he didn't. Judge Davis said he had no ability to 
make an arrest, to intervene in that circumstance. This is how it 
happened. They arrested him. They took him to jail. While he was in 
jail, he confessed to robbing a bank. Once again, Judge Davis threw out 
the confession, the whole case. If the arrest was bad and he was in 
jail, that was a product, I guess, of the poisonous tree and the 
confession was bad as to the bank robbery. So even though the police 
officer witnessed the defendant threatening his girlfriend, Judge Davis 
held the officer did not have probable cause to arrest the defendant. 
Once again, Judge Davis, however, was reversed by the Fourth Circuit.
  The judge's troubling pattern of errors in criminal cases is further 
reflected in United States v. Dickey-Bey. There the defendant was 
charged with drug trafficking after he picked up packages that 
contained two kilograms of cocaine. Police had more than enough 
evidence against the defendant. This is what they had: Before the 
packages were mailed or when they were being mailed, a drug-sniffing 
dog detected the cocaine. The police then obtained a warrant, searched 
the packages and discovered two kilograms of cocaine in the package. 
The police then resealed the packages and allowed the packages to 
continue through the mail, apparently to their destination in Maryland. 
That is what we call--and hundreds of thousands of police officers 
call--a controlled delivery. The cocaine is not allowed to get out on 
the street, but they ship it. And let's see who comes up to pick it up. 
This is a common police procedure.
  The defendant fit the description they had of the person who 
routinely picked up packages such as this from

[[Page S11277]]

this specific mail box. At the time of his arrest, the defendant had 
keys in his pocket to other mailboxes which had also been known to be 
destinations for packages of cocaine. Pretty good case, it looked like 
to me. In spite of all this, Judge Davis ruled that the police lacked 
probable cause. Probable cause to arrest is a low standard. If the 
defendant had a defense, he could always present it later and go to 
trial and be acquitted. But it certainly met the probable cause 
standard to make an arrest. He had two kilos of cocaine in his hands, 
apparently.
  I will quote from the Fourth Circuit court he wants to sit on and 
what they said about his decision in Dickey-Bey:

       In reaching its conclusion, . . . the district court failed 
     to step back and look at the totality of the circumstances 
     and the reasonableness of the officers' belief, in light of 
     those circumstances, that Dickey-Bey was a knowing part of a 
     larger drug operation.

  Pretty simple case. The impact for every police officer in America 
who might be listening today, the impact of this ruling, if that is not 
probable cause, is that controlled deliveries of this kind that occur 
quite frequently in law enforcement would be eliminated.
  How much cocaine is two kilograms? It is a lot. Under the sentencing 
guidelines, two kilograms of cocaine powder would yield an offense 
level of 28 which means a 78 to 97 months' sentence for a first-time 
offender, mandatory. That is the range the judge would have to sentence 
within the sentencing guidelines, 78 to 97 months.
  A bulk package of 2 kilograms of cocaine would sell for anywhere from 
$20,000 to $50,000 on the street, depending on the geographic region. 
According to the Sentencing Commission's 2007 Cocaine and Federal 
Sentencing Policy Report, the average ounce of cocaine sold on the 
streets of America for $1,150 in 2005. If it is broken into 1-ounce 
packages for resale, the 2-kilogram package could sell for over 
$81,000. So this is not a little bitty deal. That amounts to 10,000 to 
20,000 dose units.
  I am baffled how anyone could think there was not a crime being 
committed, how there was not probable cause to believe this individual 
was involved in a crime. Once again, Judge Davis was reversed by the 
Fourth Circuit Court of Appeals, fortunately; and, presumably, this 
case went on to trial.
  Judge Davis threw out yet another confession in the case of United 
States v. Jamison. In that case, the defendant, a convicted felon, shot 
himself. He shot himself. He went to the hospital and called out to the 
police for help and confessed that it was his gun that he shot himself 
with. Well, he was a felon. He could not have a gun. So the police 
charged him with being a felon in possession of a firearm.
  Judge Davis, however, threw out his confession, his statement he made 
to the police based on the finding that the defendant made the 
statement while in police custody and without the police having given 
him Miranda warnings. The Fourth Circuit reversed because the defendant 
was not in police custody; he was in the hospital. He had pretty good 
corroboration--the fact that he had a gun--because he had a bullet hole 
in himself, apparently.
  This is what the court said, unanimously reversing this decision--the 
trial stops. Prosecutors have to appeal. The case is thrown out. They 
file the appeal. All this money is spent. The court pays for the 
defendant's lawyer to go up and argue the case. They have to write 
cases. Months go by.
  Madam President, how much time do we have on this side?
  The PRESIDING OFFICER. The Senator has 7\1/2\ minutes.
  Mr. SESSIONS. I thank the Chair.
  This is what the court said, in reversing him unanimously:

       [The defendant], and the court below, however--

  The ``court below'': Judge Davis--

     misunderstand the reach of Miranda. . . . Miranda and its 
     progeny do not equate police investigation of criminal acts 
     with police coercion. This distinction is especially salient 
     when the victim or suspect initiates the encounter with the 
     police.

  He asked for them to come and help him.
  Of course, this pattern has been noted by the lawyers who appear 
before Judge Davis. One assistant U.S. attorney--a Federal prosecutor--
was quoted as saying:

       While Judge Davis is well-respected by the defense bar for 
     his patience and open-minded approach to legal arguments, 
     Assistant United States Attorneys are often frustrated by his 
     rulings in criminal cases . . . and have not hesitated to 
     appeal.

  Apparently they have been pretty successful in their appeals.
  This assistant U.S. attorney also said that ``some prosecutors 
believe Davis doesn't trust . . . [the] police. . . .
  Well, that is what I would say the record seems to indicate.
  As a district court judge, Judge Davis' errors have been reviewed by 
the Fourth Circuit Court of Appeals. If he is elevated to that court, 
only the Supreme Court will then be able to review his decisions. But 
the Supreme Court only hears a small fraction of cases from the 
appellate courts and cannot continually correct garden variety legal 
errors.
  If confirmed, Judge Davis will be the final avenue of appeal for many 
litigants. Of all the possible nominees who could have been submitted 
to this court, is this the one we believe would be best?
  Courts of appeal have great power through their rulings and can 
create serious problems for prosecutors. So I would say, just based on 
my review of the cases I have mentioned, Judge Davis' decisions, if not 
reversed--fortunately, they were reversed--would have seriously 
damaged, if not eliminated, a police technique of controlled delivery 
of drugs to persons who would pick them up.
  He seems to ignore the requirement that an individual has to be in 
custody by the police or be interrogated by the police before Miranda 
has to be given. That is a fundamental principle of universal 
acceptance. But, apparently, the judge is not one who follows that, and 
he has altered the standard for probable cause in a case that I think 
is troubling.
  So the types of mistakes Judge Davis has made can indeed be a threat 
to public safety. Wasn't it fortunate they arrested the man who 
threatened his girlfriend and then that he blurted out he committed a 
bank robbery? Aren't we happy? But if his ruling had been upheld, the 
effect of that would be to tell every police officer if a person 
threatens their girlfriend in the presence of a police officer, they 
cannot make an arrest.
  Our law enforcement officers work hard under dangerous conditions to 
investigate crimes and to apprehend and lock up criminals, many of whom 
are dangerous, carry guns, threaten girlfriends, shoot themselves. It 
could well have been somebody else who got shot. Yet the President is 
now seeking to elevate a judge who seems to have a real personal bias 
against the work that they do. He has nominated Judge Davis for 
elevation to the Court of Appeals for the Fourth Circuit--one step 
below the U.S. Supreme Court.
  I think he does seem to have, if not a bias against, a lack of 
respect for clarity and consistency in the enforcement of criminal 
justice, and his errors tend consistently to favor the criminal 
defendant.
  I am sure this nominee is a fine man. He has been on the bench a 
number of years. I have nothing against him personally. I am not 
questioning his integrity. But it does appear to me he has a cavalier 
or a lack of substantive commitment to get criminal justice matters 
right and has shown, by specific rulings against police and 
prosecutors, that he could do harm on the court of appeals.
  So, Madam President, for the reasons I have stated, I am reluctantly 
voting against the nominee and would ask my colleagues to consider 
doing the same.
  I yield the floor.
  Mr. BUNNING. Madam President, today I rise in opposition to the 
nomination of Mr. Andre M. Davis to the U.S. Court of Appeals for the 
Fourth Circuit.
  This position has been vacant since 2000, despite the previous 
administration's best efforts to nominate a qualified candidate. For 
example, President Bush nominated remarkable candidates when he sent 
Mr. Rod Rosenstein before the Senate in 2007 for the Fourth Circuit 
judgeship. At the time, my colleagues on the other side of the aisle 
argued that Mr. Rosenstein was ``too qualified'' to be appointed to 
this position. Now, President Obama has nominated Mr. Andre Davis, who 
has made very questionable rulings while enjoying the support from the 
same

[[Page S11278]]

Senators who opposed more qualified candidates.
  While I do not raise issue with Mr. Davis's character, I find his 
judicial record very troubling. His rulings have been overturned by the 
Fourth Circuit numerous times. In over six different cases, Mr. Davis 
was noted and reversed by the Fourth Circuit because he suppressed 
evidence. Because of his rulings, criminals could and have been allowed 
to walk. The U.S. Supreme Court only hears a limited number of cases, 
which means that the final ruling on many more cases are made at the 
U.S. Circuit Court of Appeals level.
  It is clear that President Obama and my colleagues on the other side 
of the aisle care less about sending a good candidate to the Fourth 
Circuit bench and more about pushing their own agendas. After holding 
up several more qualified candidates for this position, my colleagues 
in the majority insist on appointing someone who was reported out of 
the Judiciary Committee just 36 days after being nominated by President 
Obama. I urge my fellow Senators to oppose this nomination. Our justice 
system should not be compromised over political agendas.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, I came over here and listened to the 
debate, and I was wondering just who was being considered. It is not 
the description I would have of Judge Andre Davis of Maryland. I will, 
in a moment, go to that.
  But, first, Madam President, I ask unanimous consent that upon 
confirmation of Executive Calendar No. 185, the Senate remain in 
executive session and vote immediately on confirmation of Executive 
Calendar No. 471, the nomination of Charlene Edwards Honeywell to be 
U.S. district judge for the Middle District of Florida; that upon 
confirmation, the motion to reconsider be considered made and laid upon 
the table; no further motions be in order, and any statements relating 
to the nomination be printed in the Record; the President be 
immediately notified of the Senate's action, and the Senate then resume 
legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Now, Madam President, let me tell you who Judge Andre 
Davis is because listening to this description, you would not recognize 
the person. This is a nomination that should not have taken the Senate 
5 months to consider--5 months--after it was reported by the Judiciary 
Committee on a strong bipartisan vote of 16 to 3. The Republicans who 
voted for him: Senator Hatch, Senator Kyl, Senator Graham, and Senator 
Cornyn--are not people who are apt to give an easy pass to somebody who 
is not qualified.
  In fact, he is a well-respected judge who has served for 14 years on 
the Federal bench as a district court judge; and before that, 8 years 
as a Maryland State court judge.
  Then, for an impartial review of who this person is--not a partisan 
review but an impartial review--the American Bar Association's Standing 
Committee on the Federal Judiciary rated his nomination ``well-
qualified.'' That is the highest rating they can give to anybody. So 
there is no surprise Judge Davis enjoys the strong support of his home 
State Senators: Senator Mikulski and Senator Cardin. In fact, Senator 
Cardin chaired his confirmation hearing back on April 21, and he has 
been a strong advocate for Senate action on his nomination.
  While it is not surprising, it is nonetheless disappointing the 
Senate has been prevented from considering this nomination for 5 months 
by Republican objections. I am not surprised because Senate Republicans 
began this year threatening to filibuster President Obama's judicial 
nominations before he had made a single one. They have followed through 
with that threat by obstructing and stalling the process, delaying for 
months the confirmation of well-qualified, consensus nominees. Last 
week, the Senate was finally allowed to consider the nomination of 
Judge Irene Berger, who has now been confirmed as the first African-
American Federal judge in the history of West Virginia. The Republican 
minority delayed consideration of her nomination for more than 3 weeks 
after it was reported unanimously by the Judiciary Committee. When her 
nomination finally came to a vote, it was approved by an overwhelming 
vote of 97-0. That follows the pattern that Republicans have followed 
all year with respect to President Obama's nominations. I expect Judge 
Davis to be confirmed by a bipartisan majority, but only after a 5-
month stall.
  Last year, with a Democratic majority, the Senate reduced circuit 
court vacancies to as low as 9 and judicial vacancies overall to as low 
as 34, even though it was the last year of President Bush's second term 
and a presidential election year. That was the lowest number of circuit 
court vacancies in decades, since before Senate Republicans began 
stalling Clinton nominees and grinding confirmations to a halt. In the 
1996 session, the Republican-controlled Senate confirmed only 17 judges 
and not a single circuit court nominee. Because of those delays and 
pocket filibusters, judicial vacancies grew to over 100, and circuit 
vacancies rose into the mid-thirties.
  When I served as chairman of the Senate Judiciary Committee during 
President Bush's first term, I did my best to stop this downward spiral 
that had affected judicial confirmations. Throughout my chairmanship, I 
made sure to treat President Bush's judicial nominees better than 
Republicans had treated President Clinton's nominees. In fact, during 
the 17 months I chaired the Judiciary Committee in President Bush's 
first term, we confirmed 100 of his judicial nominees. At the end of 
his Presidency, although Republicans had run the Judiciary Committee 
for more than half his tenure, more of his judicial nominees were 
confirmed when I was the chairman than in the more than 4 years when 
Republicans were in charge.
  Instead of building on that progress, Senate Republicans are intent 
on turning back the clock to the abuses they engaged in during their 
years of resistance to President Clinton's moderate and mainstream 
judicial nomination. The delays and inaction we are seeing now from 
Republican Senators in considering the nominees of another Democratic 
President are regrettably familiar. Their tactics have resulted in a 
sorry record of judicial confirmations this year--less than a handful--
with 10 judicial nominees currently stalled on the Senate Executive 
Calendar.
  By November 9 in the first year of the Presidency of George W. Bush, 
the Senate had confirmed 17 circuit and district court judges, four 
circuit court nominees and 13 district court nominees. By contrast, 
Judge Davis is only the second circuit court nomination Republicans 
have allowed to be considered all year. When his nomination is 
confirmed, it will only bring the total to five--less than one third of 
what we had accomplished by this time in 2001. I know because in the 
summer of 2001, I began serving as the chair of the Judiciary 
Committee. We achieved those results with a controversial and 
confrontational Republican President after a mid-year change to a 
Democratic majority in the Senate. We did so in spite of the attacks of 
September 11; despite the anthrax-laced letters sent to the Senate that 
closed our offices; and while working virtually around the clock on the 
PATRIOT Act for 6 weeks. By comparison, this year, the Republican 
minority has this year allowed action on only four judicial nominations 
to the Federal circuit and district courts. Judge Davis will be the 
fifth, and only the second circuit court judge.
  Now we face this. Look at the chart I have in the Chamber. It is 
outrageous what is happening, the few nominees they are allowing 
through. This is not for lack of qualified nominees. There are 10 such 
nominees who have been reported by the Judiciary Committee on the 
Senate Executive Calendar. Had those nominations been considered in the 
normal course we would be on the pace I set in 2001 when fairly 
considering the nominations of our last Republican President.
  Even though as Democrats we treated President Bush far more fairly 
than they had treated President Clinton, even though we tried to turn 
back the clock from when there were 60 judges Republicans pocket-
filibustered during President Clinton's time, even though in 17 months 
Democrats confirmed 100 of President Bush's nominations, it looks as 
though, as far as President Obama is concerned: President Obama 
nominates them, then they have to

[[Page S11279]]

stall them. Rather than continued progress, we see Senate Republicans 
resorting to their bag of procedural treats to delay and obstruct. They 
have ratcheted up the partisanship and seek to impose ideological 
litmus tests.
  The obstruction and delays in considering President Obama's 
nominations is especially disappointing given the extensive efforts of 
President Obama to turn away from the divisive approach taken by the 
previous administration. He has reached out to Members of both parties 
to select mainstream, well-qualified nominees. I have been at some of 
those meetings. I know the job he has done in reaching out to both 
Democrats and Republicans.
  In a recent column, Professor Carl Tobias wrote about President 
Obama's approach:

       Obama has emphasized bipartisan outreach, particularly by 
     soliciting the advice of Democratic and Republican Judiciary 
     Committee members, and of high-level party officials from the 
     states where vacancies arise, and by doing so before final 
     nominations. Obama has gradually, but steadily, put forward 
     his nominees, typically naming a few on the same day. This 
     approach compares favorably with the approach of the two 
     prior administrations, which often submitted large packages 
     on the eve of Senate recesses, thus complicating felicitous 
     confirmation. To date, Obama has nominated 23 well-qualified 
     consensus candidates, who are diverse in terms of ethnicity, 
     gender and ideology. This is sufficient quantitatively and 
     qualitatively to foster prompt confirmation.

  I will ask that a copy of Professor Tobias's column be printed in the 
Record following my statement.
  Professor Tobias makes this point well and it is substantiated by the 
bipartisan support from Republican home State Senators for the 
President's nominees. Indeed, since he made these observations the 
President has nominated two North Carolinians for vacancies on the 
Fourth Circuit after consulting with both Senator Hagan and Senator 
Burr.
  His first nomination of Judge David Hamilton of Indiana to the 
Seventh Circuit came to the Senate with the strong endorsement of 
Senator Lugar, the senior Republican in the Senate. Senator Lugar 
praised the ``thoughtful, cooperative, merit-driven'' process he and 
Senator Bayh took in consulting on that nomination. Despite the 
bipartisan endorsement from his home State Senators, Judge Hamilton's 
nomination is the subject of a Republican filibuster and has been 
stalled since it was reported to the Senate in June.

  Federal judicial vacancies, which had been cut in half while George 
W. Bush was President have already more than doubled since last year. 
There are now 98 vacancies on our Federal circuit and district courts, 
including 22 circuit court vacancies. Justice should not be delayed or 
denied to any American because of overburdened courts, but that is the 
likely result of the stalling and obstruction.
  Despite the fact that Senate Republicans had pocket filibustered 
President Clinton's circuit court nominees, Senate Democrats opposed 
only the most extreme of President Bush's ideological nominees and 
worked to reduce judicial vacancies. That had led to a reduction in 
vacancies in nearly every circuit during President Bush's 
administration. One of the circuits where we succeeded in reducing 
vacancies was the Fourth Circuit, the circuit to which Judge Davis has 
been nominated.
  After Senate Republicans had refused to consider any of President 
Clinton's four Fourth Circuit nominees from North Carolina, vacancies 
on the Fourth Circuit had risen to five. All four of President 
Clinton's nominees from North Carolina to the Fourth Circuit were 
blocked from consideration by the Republican Senate majority. These 
outstanding nominees included United States District Court Judge James 
Beaty, Jr., United States Bankruptcy Judge J. Richard Leonard, 
Professor Elizabeth Gibson, and North Carolina Court of Appeals Judge 
James Wynn. Had either Judge Beaty or Judge Wynn been considered and 
confirmed, he would have been the first African-American judge 
appointed to the Fourth Circuit. The failure to proceed on those 
nominations was never explained. Indeed, Senate Republicans refused to 
consider any of President Clinton's highly qualified circuit court 
nominations from any of its States in the Fourth Circuit during the 
last 3 years of his administration. That resulted in five continuing 
vacancies.
  What followed was an effort by President Bush to pack the Fourth 
Circuit with ideologues. He nominated a political operative from 
Virginia for a vacancy in Maryland who was caught stealing from a local 
store and pleaded guilty to fraud. There was his highly controversial 
nomination of William ``Jim'' Haynes II to the Fourth Circuit who as 
general counsel at the Department of Defense was an architect of many 
discredited policies on torture and who never fulfilled the pledge he 
made to me under oath at his hearing to supply the materials he 
discussed in an extended opening statement regarding his role in 
developing these policies and their purported legal justifications.
  Mr. Haynes nomination led the Richmond Times-Dispatch to write an 
editorial in late 2006 entitled ``No Vacancies,'' about President 
Bush's counterproductive approach to nominations in the Fourth Circuit. 
The editorial criticized the administration for pursuing political 
fights at the expense of filling vacancies. According to the Richmond 
Times-Dispatch:

       The president erred by renominating . . . and may be 
     squandering his opportunity to fill numerous other vacancies 
     with judges of right reason.

  President Bush insisted on nominating and renominating Terrence 
Boyle, despite the fact that as a sitting U.S. district judge and while 
a circuit court nominee, Judge Boyle ruled on multiple cases involving 
corporations in which he held investments. President Bush should have 
heeded the call of North Carolina Police Benevolent Association, the 
North Carolina Troopers' Association, the Police Benevolent 
Associations from South Carolina and Virginia, the National Association 
of Police Organizations, the Professional Fire Fighters and the 
Paramedics of North Carolina. Law enforcement officers from North 
Carolina and across the country opposed to the Boyle nomination. Civil 
rights groups opposed the nomination. Those knowledgeable and 
respectful of judicial ethics opposed the nomination. Ultimately, 
President Bush withdrew the Boyle nomination.
  I mention these ill-advised nominations because so many Republican 
partisans seem to have forgotten the reasons these ideological 
nominations did not proceed.
  We did break the logjam in North Carolina. I worked to break through 
the impasse and to confirm Judge Allyson Duncan of North Carolina to 
the Fourth Circuit when President Bush nominated her. From the summer 
of 2001 through 2002, I presided over the consideration and 
confirmation of three Fourth Circuit judges nominated by President 
Bush. And in the Presidential election year of 2008, one of the final 
appellate court judges confirmed by the Senate was another Fourth 
Circuit nominee. Despite the confrontational approach taken by 
President Bush and additional retirements on the Fourth Circuit, we 
ended up reducing the vacancies on the Fourth Circuit during the course 
of his administration.
  Despite our good efforts, the right wing seems intent on repeating 
its mistakes of the past and obstructing President Obama's nominees to 
the Fourth Circuit. That appears to be why Judge Davis has been delayed 
for months. That appears to be why they are resisting consideration of 
the nomination of Justice Barbara Keenan from Virginia. And that 
appears to be why following the announcement last week of the 
nominations of Judge James Wynn and Judge Albert Diaz to Fourth Circuit 
vacancies, the head of a right wing group urged Republican Senators to 
obstruct the nominees saying: ``I will predict . . . that life will not 
be made easy for these two nominees'' the same way when the heads of 
the Republican Party said they should block Eric Holder for Attorney 
General, and they did. They delayed him for weeks. Finally, when we did 
get to vote, he got more votes than any of the last four Attorneys 
General.
  The Senate is finally being allowed to consider Judge Davis's 
nomination. He has had a long and distinguished legal career. During 
the last 14 years, he served as Federal district judge in Maryland. He 
has been a State judge. He has been a Federal prosecutor. He received 
his bachelor's degree from the University of Pennsylvania. He graduated 
cum laude with his JD from the

[[Page S11280]]

University of Maryland School of Law, where he still teaches classes as 
an adjunct faculty member.
  I congratulate Judge Davis and his family on what I know will be his 
confirmation. I apologize to him for these unnecessary delays for such 
a very fine man. I applaud the senior Senator from Maryland, Ms. 
Mikulski, and my Senate partner from Maryland, Mr. Cardin, a member of 
the Senate Judiciary Committee, for their work.
  Mr. President, I ask unanimous consent that a copy of the article by 
Professor Tobias to which I referred be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   With Obama Proceeding Reasonably To Fill Federal Judgeships, the 
                        Bottleneck Is the Senate

                            (By Carl Tobias)

       A growing drumbeat of commentary has recently criticized 
     President Barack Obama for not acting quickly enough to fill 
     the 96 present vacancies on the federal appellate and 
     district courts. However, as I shall explain, closer 
     evaluation of the record compiled by President Obama shows 
     that these criticisms are actually unwarranted, and that 
     responsibility should more properly be assigned elsewhere. In 
     particular, blame should now be placed at the Senate's door.


            Obama's Approach: Generally a Wise and Good One

       Many observers have voiced numerous criticisms of Obama 
     Administration judicial selection. Some have suggested that 
     the President should nominate candidates more swiftly and in 
     greater numbers. Others have criticized the nominees' age 
     (saying they are too old), experience (saying there are too 
     many judges among them), and ideological perspectives (saying 
     they are too liberal or, in some instances, too 
     conservative). A few observers have also compared the number 
     of nominees (23) whom Obama has submitted with the number 
     (95) whom President George W. Bush had submitted at the 
     identical juncture of his administration.
       Yet careful analysis of Obama's record shows that these 
     criticisms lack merit. Before Obama won the election, he had 
     already started planning for appointments. And when he was 
     elected, Obama quickly installed as White House Counsel 
     Gregory Craig, a respected attorney with much pertinent 
     expertise, who immediately enlisted several talented lawyers 
     to identify judicial designees. The administration also 
     capitalized on Vice President Joseph Biden's four decades of 
     Senate Judiciary Committee experience in the nomination 
     process. Accordingly, the selection group anticipated and 
     carefully addressed contingencies that might arise when 
     choosing judges. For example, it compiled ``short lists'' of 
     excellent candidates for possible Supreme Court vacancies, 
     should one arise.
       Obama has emphasized bipartisan outreach, particularly by 
     soliciting the advice of Democratic and Republican Judiciary 
     Committee members, and of high-level party officials from the 
     states where vacancies arise, and by doing so before final 
     nominations. Obama has gradually, but steadily, put forward 
     his nominees, typically naming a few on the same day. This 
     approach compares favorably with the approach of the two 
     prior administrations, which often submitted large packages 
     on the eve of Senate recesses, thus complicating felicitous 
     confirmation. To date, Obama has nominated 23 well-qualified 
     consensus candidates, who are diverse in terms of ethnicity, 
     gender and ideology. This is sufficient quantitatively and 
     qualitatively to foster prompt confirmation.
       Often before, and invariably following, nominations, the 
     administration and senators have cooperated. To facilitate 
     approval of nominees, Obama worked closely with Senators 
     Patrick Leahy (D-Vt.), the Judiciary Committee chair, who 
     schedules hearings and votes, and Harry Reid (D-Nev.), the 
     Majority Leader, who arranges floor consideration, and 
     their GOP analogues, Senators Jeff Sessions (Ala.) and 
     Mitch McConnell (Ky.).
       Thus, the committee has swiftly assessed nominees, with 
     thorough questionnaires and hearings and prompt votes. 
     Indeed, Leahy convened hearings so fast that GOP members 
     complained they lacked sufficient preparation time, and he 
     quite reasonably responded with another session for a 
     nominee.


 The Real Problem Here Lies More with the GOP Senate Minority Than the 
                               President

       The Democratic panel majority, thus, has expedited review, 
     but the Republican minority has delayed processing. For 
     instance, it routinely delays committee votes for a week with 
     no or minimal explanation.
       This recently happened with four California District Court 
     nominees, three of whom the panel then unanimously approved. 
     And, last week, Senator Sessions held over Virginia Supreme 
     Court Justice Barbara Keenan, even though he had praised the 
     jurist's qualifications at her hearing two weeks earlier and 
     despite the fact that the U.S. Court of Appeals for the 
     Fourth Circuit, to which she was nominated, desperately needs 
     more judges, as the court is operating with five of its 15 
     judgeships vacant. In fairness, yesterday, Sessions explained 
     that Keenan's responses to some GOP written questions were 
     inadequate, but that she promptly furnished more complete 
     answers that were satisfactory, again lauded the jurist as a 
     ``fine nominee,'' and supported the panel decision to vote 
     her out without objection.
       The committee has approved 14 federal court nominees, and 
     the real bottleneck has been Senate floor action. Of those 14 
     nominees, only five have received floor debate and 
     confirmation; nine are pending without GOP consent to 
     consider them. Senator Reid has attempted to cooperate with 
     Senator McConnell and Republicans--but to no avail. For 
     example, McConnell insisted that the Senate consider no lower 
     court nominees until it had confirmed Supreme Court Justice 
     Sonia Sotomayor, which delayed the process until September.
       The unanimous consent procedure allows one senator to stop 
     the entire body, and anonymous holds have delayed specific 
     nominees' consideration. Reid has been reluctant to employ 
     cloture, which forces votes, mainly because this practice 
     wastes valuable floor time. However, on Tuesday, Reid took 
     the unusual step of invoking cloture to secure a floor vote 
     on Southern District of West Virginia Judge Irene Berger. She 
     is the third uncontroversial judicial nominee on whom Reid 
     has been forced to seek cloture. Indeed, the GOP has 
     ratcheted up the stakes with the unprecedented action of 
     placing holds on noncontroversial nominees.


      Obama's Nomination Record Thus Far Is Strong Given Unusual 
                             Circumstances

       The fact that Obama has nominated only 23 persons thus far 
     to fill federal judgeships is not attributable to the White 
     House or the Senate majority. Nor is the fact that of these, 
     the Senate has confirmed only four lower court nominees. 
     Justice David Souter's May resignation meant that filling his 
     vacancy was a top priority, and that process consumed three 
     months, during which lower court selection had to be 
     temporarily frozen. The administration has, of course, also 
     encountered the ``start-up'' costs of instituting a new 
     government. Cabinet appointments consumed months, and the 
     Senate has yet to confirm several Assistant Attorneys General 
     nominees and many of the 93 U.S. Attorney nominees. There has 
     also been a pressing need for the Obama Administration to 
     address myriad intractable complications left by earlier 
     administrations, such as the deep, continuing recession; 
     Guantanamo; and the Iraq and Afghanistan conflicts.
       For all these reasons, recent criticisms of President Obama 
     for submitting judicial nominees too slowly are unfounded. 
     Nor should the Senate Judiciary Committee majority be blamed: 
     The panel majority has expedited its nominee processing, but 
     the minority's virtually automatic reliance on holds has 
     caused some delay. The true bottleneck, however, has been the 
     nearly complete lack of floor consideration.
       Senate Republicans must stop delaying floor action on the 
     President's well-qualified nominees--nominees who typically 
     have the blessing of the relevant states' senators. And, if 
     Republicans in the Senate continue to delay, Senate Democrats 
     should invoke cloture and related practices that will 
     facilitate expeditious approval of Obama's nominees.

  Mr. LEAHY. I yield back the remainder of my time and ask for the yeas 
and nays.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. I will use some leader time here to explain to everyone 
where we are.
  At 10 o'clock in the morning when we come into session, there will be 
a moment of silence in honor of the soldiers and the civilians who were 
killed at Fort Hood.
  I am working now with the Republicans to see if we can come up with 
an agreement to finish Military Construction. I would like to finish it 
tomorrow. It appears that it may not be doable, but we are going to 
have votes tomorrow unless we can work something out to complete the 
legislation on Monday.
  If we can complete the legislation on Monday, the Military 
Construction legislation, part of the agreement has to be something 
with Judge Hamilton. Here is a man who has waited since April. We have 
agreed to give the Republicans all the time they want--if they want 30 
hours to talk about him beforehand or 5 hours before and after--but we 
can't work out anything that satisfies them. So it appears we can only 
do cloture, which is such a shame. But that is fine. We are going to 
have to work something out as an agreement; otherwise, we will have to 
have some votes tomorrow. I know we have on this side a couple of 
Senators who, if there are no votes, would go down to Texas. We have 
Kay Bailey Hutchison, who is the manager of the bill, who will not be 
here, but there are other people on the subcommittee who could do the 
bill. I hope we can work something out, but, as we have learned during 
this Congress, it is very difficult to work things out.

[[Page S11281]]

  We are going to have votes Monday, a week from today, in the morning. 
Everyone should understand that. Monday, a week from today, we will 
have votes in the morning. We have to do that. The next week is 
Thanksgiving. We are going to get on health care the week we come back 
before Thanksgiving. We are going to at least give it our utmost to get 
on that bill.
  We have a number of things that are very important. We have to do the 
highway bill. The day after tomorrow is Veterans Day. We have a number 
of veterans bills the Republicans have held up. They are bills dealing 
with homeless veterans, among other things. They are important pieces 
of legislation. Four or five of them are being held up. We put those 
together under rule XIV, and we are going to have a vote on them in the 
future. It is a shame that on Veterans Day we are not legislating for 
the veterans, but we have been held up doing lots of things.
  I hope we can work something out with the Republicans so we can 
complete the Military Construction bill, if not tomorrow, then on 
Monday, but we are not going--this isn't going to go over for many 
hours. I have asked to work something out. I hope we don't have to file 
cloture on this bill.
  I will tell everyone, I quite doubt that I am going to file cloture 
on Military Construction. If the Republicans don't want us to do that 
bill, then we will just do it some other time. It is Military 
Construction, an extremely important piece of legislation. In years 
past, we have done that bill in an hour. I can remember when Dianne 
Feinstein and Kay Bailey Hutchison were managing that bill and we did 
that bill in an hour. Over the years--Senator Leahy is on the floor, a 
longtime member of the Appropriations Committee--this was not something 
to send political messages on. It was a bill to do something to help 
our military, to build new bases, new recreation facilities, to 
renovate and repair facilities around the world.
  So we have the situation here where it doesn't matter what we bring 
up, the Republicans stall it for time. That is why Senator Stabenow has 
been here with her charts indicating the--I think we are up to 87 now, 
or something like that--things they have held up in this Congress.
  So I hope we can work something out so we don't have to have votes 
tomorrow, but I don't need the permission of the Republicans to have 
votes tomorrow. We can have votes on amendments that are offered by 
Democrats.
  We are going to have a moment of silence. Everyone recognizes the 
tragedy of the event, and we want to be as positive as possible.
  I hope we can work something out. I have two Democrats who have 
indicated they want to go, both freshman Senators, which doesn't 
matter--they have a right to go just as do senior Members of the 
Senate--and three Republicans have indicated they would like to go. I 
hope that is possible. They can go, I won't stop them from going, but 
we may have votes.
  Mr. LEAHY. Madam President, would the Senator yield?
  Mr. REID. I will be happy to yield.
  Mr. LEAHY. I agree so much with our leader about the appropriations 
bills. I see the distinguished chairman of the Appropriations 
Committee, Senator Inouye of Hawaii, on the Senate floor. He is the 
only person standing on this floor who has served longer in this Senate 
than I have. I have been on that committee for 35 years. These are 
things that are always done. Whether it is a Republican majority or a 
Democratic majority, they have always been done, almost in a pro forma 
fashion. If somebody wants to vote against it, they can vote against 
it. But with all of the tremendous bipartisan work that is done in the 
Appropriations Committee--nobody has worked harder than the chairman of 
the Appropriations Committee. Nobody has worked harder than he has to 
get a bipartisan bill to the floor. To have it delayed, especially 
Military Construction, especially matters that help our military at a 
time when they desperately need it, to have that held up just makes no 
sense. I share the leader's frustration.
  I want to note for the record that nobody has worked harder to get a 
bipartisan bill on the floor than the chairman of the Senate 
Appropriations Committee. In years past, that would go through in no 
time at all. I cannot understand this kind of partisanship.
  I yield the floor.
  Mr. REID. I say to my friend, the distinguished Senator from Vermont, 
I didn't see the chairman on the floor. Everything my friend from 
Vermont said about the Senator from Hawaii is true, and then multiply 
it by 10. Here is a man who has lived the military--a Medal of Honor 
winner, an amputee. There is not a more bipartisan person in the whole 
body than Senator Inouye from Hawaii.
  In short, everyone here understand: Monday, a week from tomorrow, no 
matter what happens tomorrow, we are going to have votes in the 
morning. We have just a short week until Thanksgiving and we have a lot 
to do, including health care.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The Senator from Alabama is recognized.
  Mr. SESSIONS. Madam President, I also assume we will soon be voting 
on Judge Honeywell for the U.S. district court in Florida. I enjoyed 
the dialog I had with her during the confirmation hearings. I was 
pleased to see good responses to questions for the record. She has 
served as an assistant public defender and an assistant city attorney, 
an associate and partner in a law firm, as well as both a county court 
judge and a State circuit court judge. I will be supporting her 
nomination.
  I wish to note that when I asked her about what role empathy should 
play in deciding cases, she said:

       Empathy does not play role in my consideration of cases. 
     Presently, I decide cases by applying the law to the facts of 
     the cases pending before me. If confirmed by the Senate to 
     serve as a District Court judge, I will decide cases in the 
     same manner.

  I would expect, as I did for President Clinton, to vote for well over 
90 percent of the nominees who are submitted by the President. I hope 
to be able to do that for President Obama. But I will say, for the 
reasons I gave earlier, I must oppose Judge Davis.
  I ask unanimous consent that an article written by Larry Margasak 
from the Associated Press, dated Monday, November 9, 2009, be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             Democrats Have Short Memory on Judge Nominees

                          (By Larry Margasak)

       Ten months into Barack Obama's presidency, Democrats are 
     accusing Republicans of creating ``a dark mark on the 
     Senate'' by delaying confirmation of his federal court 
     nominees.
       The mark might not be as dark as Democrats make it seem.
       Of the 27 judicial nominations Mr. Obama has made so far, 
     all five brought up for votes in the Senate have won 
     relatively quick confirmations, including new Supreme Court 
     Justice Sonia Sotomayor.
       So what is this ``dark mark'' that Senate Judiciary 
     Committee Chairman Patrick J. Leahy, Vermont Democrat, talks 
     about?
       It's primarily two federal judges--one from Indiana, the 
     other Maryland--who've been waiting five months for Senate 
     Majority Leader Harry Reid, Nevada Democrat, to bring their 
     nominations for appeals court promotions to the Senate floor.
       Republicans contend that the nominees are activist judges, 
     and Mr. Reid hasn't forced the issue--although he said 
     Wednesday that he might do so by Veterans Day for at least 
     one of the nominees.
       One other nominee has been waiting since Sept. 10. But 
     seven others have been waiting from only one to five weeks. 
     That's not a long time for the Senate, which prides itself as 
     a deliberative body, and Republicans say they're ready to 
     vote on most of them.
       Democrats have a record of their own that is far from being 
     a bright light. Just three years ago, they were blocking 
     votes on some of President George W. Bush's more conservative 
     judicial nominees.
       Several of Mr. Bush's nominees waited for years--two years 
     for eventual Supreme Court Chief Justice John G. Roberts Jr. 
     when he was nominated for an appellate court post.
       Priscilla Owen waited through four years of Democratic 
     blocking tactics before she was confirmed for the New 
     Orleans-based federal appeals court. Miguel Estrada withdrew 
     his bid for an appellate seat after a Democratic filibuster 
     lasting more than two years.
       As an institution that lets the minority party use rules to 
     block legislation and nominations, the Senate often acts as a 
     filter for preventing the more politically strident bases of 
     each party from tilting the judicial branch too much one way 
     or the other.
       Although moderate nominees win confirmation easily, both 
     parties use what is essentially the same argument to block or 
     at

[[Page S11282]]

     least delay action on others: The particular nominee would 
     substitute his or her own liberal or conservative philosophy 
     for the law and the Constitution.
       ``It would be wrong for us to be a rubber stamp for each 
     nominee,'' Sen. Jeff Sessions of Alabama, the senior 
     Republican on the Judiciary Committee, said in a recent 
     confirmation dustup in the Senate.
       That sounds familiar.
       After Mr. Estrada gave up, Sen. Edward M. Kennedy, 
     Massachusetts Democrat, said, ``This should serve as a wake-
     up call to the [Bush] White House that it cannot simply 
     expect the Senate to rubber-stamp judicial nominations.''
       The Republican stall at this point is focused on two 
     appellate court judges whose nominations were sent by the 
     Judiciary Committee to the full Senate on June 4:
       David Hamilton of Indiana, a U.S. district judge and nephew 
     of former Democratic Rep. Lee H. Hamilton, chosen for the 
     Chicago-based appeals court.
       Mr. Reid said he wants a vote on Judge Hamilton by Veterans 
     Day. He'll probably need a supermajority of 60 to get one.
       Judge Andre Davis, a district judge in Maryland, nominated 
     for a seat on the appellate court headquartered in Richmond.
       Mr. Sessions made it clear that his party will put up a 
     fight against confirming either. He cited Judge Hamilton's 
     position in the late 1980s as a vice president for litigation 
     and board member of the Indiana chapter of the American Civil 
     Liberties Union. Mr. Sessions also complained about Judge 
     Hamilton's judicial rulings.
       ``Instead of embracing the constitutional standard of 
     jurisprudence, Judge Hamilton has embraced this `empathy' 
     standard, this `feeling' standard. Whatever that is, it is 
     not law. It is not a legal standard,'' Mr. Sessions said.
       In Judge Davis' case, Mr. Sessions made the delay sound 
     like a payback to Democrats, although he denied that was his 
     purpose.
       ``We have had a number of battles over the failure to fill 
     some of the vacancies on that court,'' Mr. Sessions said, 
     referring to stalls of Mr. Bush's nominees for the Richmond-
     based appeals court--once known for its conservatism.
       Mr. Sessions said Republicans have a problem with only one 
     other current nominee before the Senate: Edward Chen, chosen 
     for a U.S. district court seat in California. But Mr. Chen's 
     nomination was only approved by the committee on Oct. 15, 
     hardly enough time to make the case for a stall.
       ``Most of the nominees . . . will go through in an 
     expeditious manner,'' Mr. Sessions said. He said Republicans 
     are ready to support Beverly Martin, nominated for the 
     Atlanta-based appeals court, but Democrats have not scheduled 
     a vote. Her nomination reached the full Senate Sept. 10.
       In the Senate's five judicial confirmation votes this year, 
     only Justice Sotomayor generated significant Republican 
     opposition, and she was approved 68-31.

  Mr. SESSIONS. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Andre M. Davis, of Maryland, to be United 
States circuit judge for the Fourth Circuit?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), the Senator from North Dakota (Mr. Dorgan), the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Florida (Mr. Nelson) 
are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Missouri (Mr. Bond), the Senator from North Carolina (Mr. Burr), 
the Senator from Georgia (Mr. Chambliss), the Senator from Texas (Mr. 
Cornyn), the Senator from New Hampshire (Mr. Gregg), the Senator from 
Texas (Mrs. Hutchison), the Senator from Georgia (Mr. Isakson), and the 
Senator from Idaho (Mr. Risch).
  Further, if present and voting, the Senator from Texas (Mr. Cornyn) 
would have voted ``yea.''
  The PRESIDING OFFICER (Mrs. Shaheen). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 72, nays 16, as follows:

                      [Rollcall Vote No. 342 Ex.]

                                YEAS--72

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Corker
     Dodd
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--16

     Barrasso
     Brownback
     Bunning
     Coburn
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Inhofe
     Johanns
     Roberts
     Sessions
     Shelby
     Thune
     Vitter

                             NOT VOTING--12

     Bond
     Burr
     Byrd
     Chambliss
     Cornyn
     Dorgan
     Gregg
     Hutchison
     Isakson
     Kerry
     Nelson (FL)
     Risch
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is made and laid upon the table.
  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)


                            vote explanation

 Mr. KERRY. Madam President, I was necessarily absent for the 
vote on the confirmation of Andre Davis to the Fourth Circuit. If I 
were able to attend today's session, I would have voted for his 
confirmation.

                          ____________________