[Congressional Record Volume 156, Number 104 (Wednesday, July 14, 2010)]
[Senate]
[Pages S5835-S5837]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             UNANIMOUS CONSENT REQUEST--EXECUTIVE CALENDAR

  Mrs. HAGAN. Mr. President, I come to the Senate floor this afternoon 
to

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discuss two nominees for the Fourth Circuit Court of Appeals--Judges 
Jim Wynn and Albert Diaz.
  When I came to the Senate, I had high hopes of increasing the number 
of North Carolinians on the court. North Carolina is the fastest 
growing and largest State served by the Fourth Circuit. Yet only 1 of 
the 15 seats is filled by the abundant talent from our State, and over 
the past century North Carolina has had fewer total judges on the court 
than any other State.
  Furthermore, there have been inexcusable vacancies on this court 
throughout history. Given that the U.S. Supreme Court only reviews 1 
percent of the cases it receives, the Fourth Circuit is the last stop 
for almost all Federal cases in the region. We must bring this court 
back to its full strength. Since 1990, when this court was granted 15 
seats, it has never had 15 active judges.
  Judge Wynn brings decades of judicial experience to the bench. He has 
served on the North Carolina Court of Appeals since 1990 and had a 
brief tenure on the State supreme court. He has been the chair of the 
bar association's Judges Advisory Committee on Ethics.
  Additionally, Judge Wynn has served on Active and Reserve Duty in the 
Navy for 30 years and was a certified military trial judge. He has been 
honored for his extraordinary service several times, including three 
Meritorious Service Medals.
  Judge Diaz has served since 2005 as one of North Carolina's three 
business court judges. Prior to that, Judge Diaz was a judge on the 
State superior court for nearly 4 years.
  As a business court judge, Judge Diaz has handled complex business 
cases. He started as a lawyer in the U.S. Marine Corps, was an 
appellate counsel in the Navy's Office of the Judge Advocate General 
and has been a judge in the Marine Corps Reserves.
  Judge Diaz also has extensive experience in business litigation and 
has served on the State Judicial Council which advises the State 
supreme court's chief justice on ways to improve the courts. He is a 
graduate of New York University Law School, with a graduate degree in 
business from Boston University and undergraduate degree in business 
from the University of Pennsylvania.
  I note that both judges have received unanimous ratings of well 
qualified from the American Bar Association.
  Additionally, both men's confirmation to this Federal bench will be 
historically significant, as Judge Diaz will be the first Latin 
American on the Fourth Circuit and Judge Wynn will be the fourth 
African American to ever serve on this bench.
  These fine men have the support of both myself and my colleague from 
North Carolina, Senator Burr. Editorials and newspapers throughout 
North Carolina have praised these nominations and have urged their 
swift confirmation. The Charlotte Observer said Judges Wynn and Diaz 
are ``widely regarded as intelligent, ethical judges who have won 
respect for their judicial and military careers. They are the kind of 
judges the federal bench needs . . . Their quality is so unquestioned 
that only partisanship could stall their nominations.''
  Unfortunately, I worry that is what is happening. Both Judge Wynn and 
Judge Diaz were approved by the Senate Judiciary Committee on January 
28--Judge Diaz unanimously and Judge Wynn with only one dissenting 
vote. But for over 5 months now, the nominations have languished on the 
calendar. It is past time that these two fine judges be confirmed to 
the Fourth Circuit.
  Mr. President, as in executive session, I ask unanimous consent that 
at a time to be determined by the majority leader, following 
consultation with the Republican leader, the Senate proceed to 
executive session and consider en bloc the following nominations on the 
Executive Calendar: Calendar No. 656, Albert Diaz, to be a U.S. Circuit 
Judge for the Fourth Circuit, and Calendar No. 657, James Wynn, to be a 
U.S. Circuit Judge for the Fourth Circuit; that the nominations be 
debated concurrently for up to 3 hours, with the time equally divided 
and controlled between Senators Leahy and Sessions or their designees; 
that upon the use or yielding back of time, the Senate proceed to vote 
on confirmation of the nominations in the order listed; that upon 
confirmation, the motions to reconsider be considered made and laid 
upon the table en bloc, the President be immediately notified of the 
Senate's action, and the Senate resume legislative session.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object, and I 
will be objecting.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. Mr. President, I appreciate the perspective of the 
junior Senator from North Carolina, but my perspective on the Fourth 
Circuit covers a little longer period of time.
  I advise my friend that for the last Congress of the Bush 
administration, the Democratic majority only confirmed one nominee to 
the Fourth Circuit. As a result, the circuit was fully one-third vacant 
with five vacancies when President Bush left office.
  These vacancies were not due to President Bush's failure to nominate 
several qualified candidates. As a result, my Democratic friends had to 
resort to creative reasons to justify keeping these seats open.
  To give an example, the Fourth Circuit seat from Maryland was kept 
vacant for the entirety of the Bush administration--8 years. The last 
nominee for that seat the Democrats objected to was a fellow named Rod 
Rosenstein. Nobody could reasonably contest his credentials, so my 
Democratic colleagues turned his virtues into a vice, saying he was 
doing too good a job as U.S. attorney in Maryland to be promoted to the 
circuit court.
  Despite the unfair treatment that Mr. Rosenstein received, many 
Senate Republicans in this Congress, including myself, supported 
President Obama's nominee to this seat, Andre Davis.
  Also in this Congress, Republicans, including myself, supported the 
confirmation of Barbara Keenen of Virginia to the Fourth Circuit. With 
her confirmation, the Senate has confirmed twice as many nominees to 
the Fourth Circuit as occurred during the entire last Congress of the 
Bush administration when Democrats controlled the Senate.
  With respect to the vacancies from North Carolina, President Bush put 
up a nominee who satisfied all of Chairman Leahy's criteria for 
confirmation--Judge Robert Conrad. Judge Conrad had the strong support 
of his home State Senators. He received the blessing of the ABA, the 
Democrat's so-called gold standard, and he would fill a judicial 
emergency. Yet Judge Conrad could not even get so much as a hearing.
  In fact, the Senate has been processing President Obama's judicial 
nominees, both district and circuit court nominees, faster than it 
processed President Bush's judicial nominees.
  How has the President responded to our efforts to work in good faith? 
He recess appointed Donald Berwick before the Finance Committee could 
even schedule a hearing on him, and despite the fact that Republicans 
on that committee requested that a hearing be scheduled on his 
nomination.
  Let me give my colleagues a brief timeline of the nomination of 
Donald Berwick.
  On April 19, 2010, the President nominated Dr. Berwick to serve as 
Administrator of the Centers for Medicare and Medicaid Services. Less 
than 3 months later, and without a Senate Finance Committee hearing 
taking place, the President recess appointed Dr. Berwick. The reason 
offered was that the Republicans were blocking this vital appointment, 
so they could wait no longer to follow the constitutional process of 
Senate confirmation. Yet this position was vacant for the first 16 
months of the Obama administration and has not had a confirmed 
Administrator since 2006, since my friends on the other side of the 
aisle were blocking the Bush administration nominee.
  Democrats did not schedule so much as a committee hearing for Donald 
Berwick. The mere possibility of allowing the American people the 
opportunity to hear what he intends to do with their health care was 
reason enough for this administration to sneak him through without 
public scrutiny.
  Given the President has been so dismissive of the Senate's right to 
provide advice and consent under the Constitution, I am not inclined at 
this

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point to consent to the request proposed by my friend from North 
Carolina. Therefore, Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from North Carolina.
  Mrs. HAGAN. Mr. President, it is disappointing that we cannot get 
consent for these judges. Senator Richard Burr and I together 
introduced these two individuals at the Judiciary Committee hearing. I 
will say that I remain committed to working with my colleagues on both 
sides of the aisle, as well as any Senator who has concerns over either 
judge, to working toward a reasonable solution that would allow an up-
or-down vote on Judges Wynn and Diaz.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. FRANKEN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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