[Congressional Record Volume 155, Number 168 (Tuesday, November 10, 2009)]
[Senate]
[Pages S11338-S11339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NOMINATION OF JUDGE ANDRE M. DAVIS

  Mr. CARDIN. Madam President, I would like to address the concerns 
stated by the Senator from Oklahoma, Mr. Coburn, and the Senator from 
Alabama, Mr. Sessions, about Judge Davis's record when it comes to 
criminal cases. His concerns seem primarily rooted in six criminal case 
reversals that appear in Judge Davis's record. As a Federal judge over 
the past 14 years, Judge Davis has presided over approximately 5,300 
cases. Of that number, Judge Davis has presided over approximately 
4,300 cases that went to verdict or judgment based on a trial or 
decision he made. My colleagues are focusing on just a handful of cases 
to argue that Judge Davis should not be elevated to the Fourth Circuit.
  While the number of reversals on criminal evidentiary matters 
appearing in Judge Davis's record that my colleague has mentioned is 
small, Judge Davis has directly addressed Senators' questions related 
to each of these reversals, expressing his commitment to applying the 
law to the facts impartially and fairly, while respecting the role of 
the appellate courts in our judicial system and their decisions in all 
cases. Following his confirmation hearing in the Judiciary Committee in 
April, which I chaired, our committee reported him out favorably with a 
strong bipartisan vote of 16 to 3. This overwhelming, bipartisan 
approval indicates that Judge Davis is well-qualified to be a U.S. 
Circuit Judge for the Fourth Circuit. Out of the 5,300 cases over which 
Judge Davis has presided, these six cases are hardly cause for the 
concern my colleagues have expressed. Later I want to also mention some 
criminal cases in which Judge Davis's stiff criminal sentences were 
upheld by the Fourth Circuit, along with convictions obtained after 
jury trials. However, to make the record clear, I will review in detail 
Judge Davis's responses to some of the half a dozen cases noted by my 
colleagues.
  In US v. Bradley, Judge Davis accepted several plea agreements with 
the defendants, who ultimately pleaded guilty but later, on appeal, 
argued that their pleas were not voluntary because the court 
impermissibly participated in pleas negotiations. The Fourth Circuit 
did ``not suggest that [Judge Davis] improperly intended to coerce 
involuntary guilty pleas,'' but found plain error and remanded the case 
for assignment to a different district judge. Upon questioning by the 
committee, Judge Davis said that he became involved with--but did not 
interfere with the plea process--at the invitation and encouragement of 
defense counsel. He ultimately concluded that he shouldn't have gotten 
involved with the process at all. He said he believed, with the benefit 
of hindsight, that his involvement in facilitating the guilty pleas in 
this case was inappropriate and that the Fourth Circuit was correct to 
say so.
  In US v. Custis, Judge Davis granted the defendant's motion to 
suppress evidence discovered in a residential search on the grounds 
that the warrant was defective and insufficient. The Fourth Circuit 
reversed, holding that probable cause supported the warrant. While 
Judge Davis told the committee he does believe he read the affidavit in 
a common sense manner, he fully accepts the appellate court's ruling in 
this case.
  In US v. Kimbrough, Judge Davis said he accepts the appellate court's 
ruling rejecting his legal conclusion that the police permitted the 
defendant's mother to question him under circumstances which the police 
couldn't have done so without first administering customary warnings. 
He agrees that warnings are required only when official interrogation 
takes place, but not when private interrogation takes place.
  In US v. McNeill, Judge Davis granted a motion to suppress the 
defendant's confession on the grounds of an unlawful arrest. Judge 
Davis explained to the committee that the principal issue before him 
was whether, for a warrantless misdemeanor arrest, the fourth amendment 
required that the misdemeanor be committed in the officer's presence. 
He concluded that the answer was ``yes'' in this case, and that no 
misdemeanor had been committed in the officer's presence as of the 
moment of arrest. While Judge Davis explained that the Fourth Circuit's 
holding presented an argument and precedent that had not been presented 
to him, he fully accepted the appellate court's ultimate ruling in this 
case.
  In US v. Dickey-Bey, Judge Davis also suppressed evidence arising out 
of the interception of cocaine by police for lack of probable cause to 
arrest the defendant. He has told us that he fully accepts the 
appellate court's rejection of his legal conclusion that the evidence 
presented at the hearing on the motion to suppress was insufficient, 
and remains committed to adhering to the fourth amendment requirement 
to make commonsense assessments of objective facts, taking into account 
the totality of the circumstances.
  I found Judge Davis's responses to the Judiciary Committee's 
questions

[[Page S11339]]

about these six criminal cases to be candid, honest, and forthright. 
Judging by the overwhelming bipartisan support for his approval in the 
Judiciary Committee, so did many of my colleagues, on both sides of the 
aisle. Judge Davis has told us that in every case that has ever come 
before him, and there have been over 5,300 of them, he has done his 
best to determine the facts and to apply the law to the facts 
impartially and fairly.
  Indeed, among the 5,300 cases that Judge Davis has presided over, he 
has a clear record of using a moderate and fair approach to criminal 
cases. He has presided over numerous important criminal trials that 
have resulted in convictions affirmed by the Fourth Circuit, and he has 
also granted motions to suppress evidence obtained in violation of the 
rights of the accused. So let's look at his record more broadly to get 
a clearer picture of his many years on the bench.
  For example, in US v. Ulrich, Judge Davis handed down convictions for 
four defendants for mail fraud in connection with a real estate 
flipping scheme, a ruling that was affirmed by the Fourth Circuit in 
June 2007. In 2001, in US v. Montgomery, the Fourth Circuit affirmed 
his convictions related to a 10-week, multidefendant trial in a 
narcotics conspiracy prosecution. In 1998, the Fourth Circuit affirmed 
his conviction handed down in a murder prosecution in US v. Gray.
  As a Fourth Circuit Judge, Judge Davis has expressed that he will 
follow the precedents of the Supreme Court and the circuit, and will 
continue to apply the law to the facts of each case impartially and 
fairly. His record as a district judge clearly bears out this 
commitment.
  I thank my colleagues for supporting this nomination.

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