[Congressional Record Volume 157, Number 42 (Monday, March 28, 2011)]
[Senate]
[Pages S1888-S1891]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF MAE A. D'AGOSTINO TO BE U.S. DISTRICT JUDGE FOR THE 
                     NORTHERN DISTRICT OF NEW YORK

  The PRESIDING OFFICER. 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 Mae A. D'Agostino, of 
New York, to be United States District Judge for the Northern District 
of New York.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
of debate equally divided in the usual form.
  Mr. LEAHY. Mr. President, I thank the majority leader for scheduling 
this confirmation vote today. Mae D'Agostino has the distinction of 
being the first newly considered judicial nominee this year. Every 
judicial confirmation thus far this year was of a nominee who had been 
unanimously reported by the Judiciary Committee last year. Each of 
those nominations could, and in my view should, have been considered 
and confirmed last year before the Senate adjourned in December. Ms. 
D'Agostino appeared at a hearing in February, and her nomination to 
fill a judicial emergency vacancy on the Northern District of New York 
was reported unanimously earlier this month. Now she is being 
considered by the Senate. This is an example of what we can do. It 
should not take weeks and months for the Senate to consider nominees 
reported by the Judiciary Committee, particularly those who are 
consensus nominees.
  Ms. D'Agostino is a native of Albany, New York, and has spent her 
career in private practice in the Albany area. In addition to her legal 
practice, Ms. D'Agostino has taught at Albany Law School and the Junior 
College of Albany. Once confirmed, Ms. D'Agostino will be the only 
woman currently serving, and only the second woman ever to serve, on 
the Northern District of New York Federal bench. I thank Senator 
Schumer and Senator Gillibrand for working with the President on this 
nomination. They have worked hard throughout the process. In addition 
to Ms. D'Agostino, there remain nine other judicial nominees awaiting 
final Senate consideration after having been

[[Page S1889]]

reviewed by the Judiciary Committee. Two of those nominations have 
twice been considered by the Judiciary Committee and twice reported 
with strong bipartisan support, first last year and again in February. 
They are Susan Carney of Connecticut to fill a vacancy on the U.S. 
Court of Appeals for the Second Circuit and Michael Simon to fill a 
vacancy on the district court in Oregon. Another has been reported 
favorably four times Judge Edward Chen of the Northern District of 
California. So in addition to the D'Agostino nomination to fill a 
judicial emergency vacancy in New York, there are nominees ready to be 
confirmed to fill two judicial emergency vacancies in California, 
another judicial emergency vacancy in New York, a judicial emergency 
vacancy on the Second Circuit, vacancies on the Federal and DC Circuit, 
a vacancy in Oregon, and two vacancies in Virginia. I expect the 
Judiciary Committee will consider and report additional judicial 
nominations this week, adding to the number of judicial nominees ready 
for final Senate action.
  Recently the Judicial Conference of the United States reaffirmed its 
recommendation that two additional judgeships be added to the U.S. 
Court of Appeals for the Second Circuit given its workload. That is in 
addition to the two existing vacancies. Regrettably, the unnecessary 
delays in considering Susan Carney's nomination to fill one of those 
vacancies has left that court and the people it serves without much-
needed resources. It has also given right-wing pressure groups the 
chance to launch unfounded attacks on Ms. Carney full of false 
accusations and innuendo. This is a nominee who had the support of a 
majority of the Republicans on the committee, and who should have been 
considered and confirmed last year. The Senate should take up her 
nomination, debate it and vote on it rather than allowing her record to 
be smeared. That would be the fair thing to do and the right thing to 
do. I hope we will do so soon.
  Federal judicial vacancies around the country still number too many, 
and they have persisted for too long. Nearly one out of every nine 
Federal judgeships remains vacant. This puts at serious risk the 
ability of all Americans to have a fair hearing in court. The real 
price being paid for these unnecessary delays in filling vacancies is 
that the judges that remain are overburdened and the American people 
who depend on them are being denied hearings and justice in a timely 
fashion.
  Regrettably, rather than reduce vacancies dramatically as we did 
during the Bush administration, the Senate has reversed course in the 
first 26 months of the Obama administration, with the slow pace of 
confirmations keeping judicial vacancies at crisis levels. Over the 8 
years of the Bush administration, from 2001 to 2009, we reduced 
judicial vacancies from 110 to a low of 34. That has now been reversed, 
with vacancies first topping 90 in August 2009 and staying above that 
level since. The vacancy rate we reduced from 10 percent at the end of 
President Clinton's term to less than 4 percent in 2008 has now risen 
back to over 10 percent.
  In contrast to the sharp reduction in vacancies we made during 
President Bush's first 2 years, when the Democratically controlled 
Senate confirmed 100 of his judicial nominations, only 60 of President 
Obama's judicial nominations were allowed to be considered and 
confirmed during his first 2 years. Whereas the Democratic majority in 
the Senate reduced vacancies from 110 to 60 in President Bush's first 2 
years, today judicial vacancies still number 96. By now, judicial 
vacancies should have been cut in half, but they have not been. We have 
not even kept up with the rate of attrition, putting at risk the 
ability of Americans to have a fair hearing in court.
  The Senate must do better. The Nation cannot afford further delays by 
the Senate in taking action on the nominations pending before it. 
Judicial vacancies on courts throughout the country hinder the Federal 
judiciary's ability to fulfill its constitutional role. They create a 
backlog of cases that prevent people from having their day in court. 
This is unacceptable. That is why Chief Justice Roberts, Attorney 
General Holder, White House Counsel Bob Bauer and many others--
including the President of the United States--have spoken out and urged 
the Senate to act.
  We can consider and confirm this President's nominations to the 
Federal bench in a timely manner as the nomination before us today 
demonstrates. President Obama has worked with the New York home State 
Senators to identify this nominee, just as he has worked with Senators 
from both sides of the aisle to identify superbly qualified nominees in 
districts with vacancies. All the nominations on the Executive Calendar 
have the support of their home State Senators, Republicans and 
Democrats. All have a strong commitment to the rule of law and a 
demonstrated faithfulness to the Constitution.
  During President Bush's first term, we proceeded to confirm 205 of 
his judicial nominations. We confirmed 100 of those during the 17 
months I was chairman during President Bush's first 2 years in office 
and by this date in President Bush's third year had confirmed 112. So 
far in President Obama's third year in office, the Senate has only been 
allowed to consider 74 of his Federal circuit and district court 
nominees. We remain well short of the benchmark we set during the Bush 
administration. When we approach it we can reduce vacancies from the 
historically high levels at which they have remained throughout these 
first 3 years of the Obama administration to the historically low level 
we reached toward the end of the Bush administration.
  I have thanked the ranking Republican on the Judiciary Committee, 
Senator Grassley, for his cooperation this year. I see him taking 
credit for what he called ``our rapid pace.'' I am encouraged by his 
commitment to ``continue to move consensus nominees through the 
confirmation process.'' I am glad to see him echo my call to turn the 
page and end the days of tit for tat on judicial nominations. That is 
what I did from the first days of the Bush administration in spite of 
how President Clinton's nominees had been treated.
  The committee's ranking Republican often points to the vacancies for 
which there are not nominees. Of course, some of that is attributable 
to a lack of cooperation with the White House by some home State 
Senators. Nonetheless, I agree with the Senator from Iowa that we can 
do little about confirming nominations we do not have before us. What 
we can do is proceed expeditiously with the qualified nominations the 
President has sent to the Senate.
  I hope that it is a sign of progress that we are today proceeding to 
confirm a judicial nominee considered this year and reported earlier 
this month and hope that we can continue to work to restore regular 
order in considering judicial nominations. However, I would observe 
that it is nearly April and every judge confirmed so far this year 
could and should have been confirmed last year. Every one of them was 
unanimously reported last year and would have been confirmed had 
Republicans not objected and created a new rule of obstruction after 
midterm elections. We have long had the ``Thurmond rule'' to describe 
how Senator Thurmond shut down the confirmation process in advance of 
the 1980 Presidential election. Last year's shutdown was something new. 
I cannot remember a time when so many consensus nominees were left 
without Senate action at the midterm point of a Presidency. That new 
level of obstruction has contributed to our being so far behind and 
judicial vacancies having been perpetuated at so high a level for too 
long. I hope we can join together to make real progress.
  I congratulate Mae D'Agostino and her family on her confirmation 
today.
  Mr. GRASSLEY. Mr. President, I rise to speak on another of President 
Obama's judicial nominees. Tonight's vote to confirm Ms. Mae D'Agostino 
will be the 14th judicial nominee confirmed this Congress. It is the 
10th judicial emergency filled this year.
  Even though I gave an update to my colleagues just 11 days ago, when 
we had our last judicial nomination vote, I will give a short report on 
the status of judicial nominations. To date, we have taken positive 
action on 33 of the 60 judicial nominees submitted this Congress, or 55 
percent. We continue to have nominations hearings every 2 weeks, and 
have favorably reported nominees out of committee at every weekly 
markup session.

[[Page S1890]]

  Furthermore, nominees in committee continue to be processed much 
faster than those nominated by President Bush. On average, President 
Obama's district court nominees have only had to wait 66 days from 
nomination to their hearing. For President Bush's nominees, the wait 
time was nearly double, at 120 days. President Bush's circuit court 
nominees waited, on average, 247 days for a hearing. President Obama's 
nominees are receiving their hearing, on average, within 72 days.
  Even with our rapid pace, the Federal courts still hold a vacancy 
rate of almost 11 percent. Yet 54 percent of the vacancies do not have 
nominees. While we are processing consensus nominees in a fair and 
thorough manner, we cannot lower the vacancy rate if no nominee exists.
  The seat to which Ms. D'Agostino has been nominated, vacant since 
March of 2006, is categorized as a judicial emergency. This vacancy 
should never have been deemed an emergency. President Bush nominated 
not one, but two nominees to this vacancy during the 109th and 110th 
Congresses. First, Mary Donohue, who had served as New York State's 
Lieutenant Governor, was nominated in June 2006, 3 months after the 
vacancy occurred. Ms. Donohue's nomination languished in committee 
without a hearing or a committee vote for 435 days. Her nomination was 
withdrawn in September 2007. President Bush then nominated Thomas 
Marcelle to the seat. He waited 155 days in the Judiciary Committee and 
never received a hearing. The nomination was returned at the end of the 
110th Congress. In sum, the seat had a nominee for 590 days, with no 
action. This is justice delayed. I would note that both candidates had 
a rating from the ABA of ``Well Qualified.''
  It took President Obama over 20 months to finally nominate an 
individual to this vacancy. While I am disappointed this seat has been 
needlessly vacant for so long, I am pleased to support the nominee 
before us today.
  Mae Avila D'Agostino received her B.A., magna cum laude, from Siena 
College and her J.D. in 1980 from Syracuse University College of Law. 
Ms. D'Agostino began her legal career in 1981 as an associate attorney 
at Maynard, O'Connor & Smith. In 1985, she was made a partner. In 1997, 
Ms. D'Agostino left Maynard, O'Connor & Smith to start her own firm 
D'Agostino, Krackeler, Maguire & Cardona, P.C., where she currently 
practices. Throughout her career, Ms. D'Agostino has primarily 
practiced in the area of defense litigation with a concentration on 
medical malpractice.
  In addition to her legal practice, Ms. D'Agostino has also taught 
legal courses at the Junior College of Albany and Albany Law School. 
The ABA Standing Committee on the Federal Judiciary gave Ms. D'Agostino 
a unanimous ``Well-Qualified'' rating. Her nomination was reported by 
the Judiciary Committee by voice vote just 25 days ago.
  I congratulate the nominee and wish her well in her public service as 
a U.S. district judge.
  Mr. LEAHY. Mr. President, I congratulate Senator Schumer and Senator 
Gillibrand for their work.
  The distinguished senior Senator from New York is on the floor. I am 
delighted to see him, and I would ask, when he is finished, if he asks 
for a quorum call, if he might ask to have it charged against both 
sides equally.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. I thank the chairman, and thank you, Mr. President.
  First, I express my gratitude and thanks to the chairman of our 
Judiciary Committee, Senator Leahy. Senator Leahy has conducted his 
chairmanship, as head of the Judiciary Committee, with fairness and 
strength and honor, and he has tried to bend over backwards to get our 
colleagues on the other side of the aisle fair hearings and equality in 
a certain sense.
  I regret that too many of our colleagues on the other side of the 
aisle are blocking judges. It is not fair and it is not right. I hope 
they would heed Senator Leahy's call to avoid tit for tat and bring 
more judges to the bench.
  (Mr. LEAHY assumed the chair.)
  Mr. SCHUMER. As I said, I have not seen a chairman--now he is the 
Presiding Officer of the Senate for the moment--I have not seen a 
chairman try to be fairer and with more patience and more honor as 
chair of the Judiciary Committee than Senator Leahy. I hope my 
colleagues will heed his call because he is trying to be as fair and 
down the middle as possible at a time when we have a record number of 
vacancies in too many of our circuits.
  I rise today to express my full support for Mae D'Agostino, the 
nominee for the United States District Court for the Northern District 
of New York. I am very hopeful we will confirm her with overwhelming 
support tonight, and I agree wholeheartedly with Chairman Leahy that we 
should proceed quickly to confirm the other nominees for the many long 
vacant seats across the country.
  Mae D'Agostino's entire career is a tribute to her skill, her 
intelligence, and her pioneering spirit. When she is confirmed today, 
she will be the only woman sitting on the Federal bench in upstate New 
York, and only the second in the history of the region.
  Mae D'Agostino has earned the distinction of being one of the most 
well respected and revered trial attorneys in the State of New York. 
When I suggested her name to President Obama, I was amazed--I knew she 
had a good reputation and, of course, I had interviewed her--I was 
amazed at the acclaim throughout the entire Northern District that 
nomination received. Mae D'Agostino's reputation as a fair-minded, 
honorable, practical lawyer is incredible. I am so glad she is here 
before us tonight, and I believe, should we confirm her, she will be an 
outstanding judge. The capital region and the central New York area, as 
well as the north country, are sort of exultant. That is the word I use 
to describe Mae's possible ascension to the bench tonight.
  She was born in Albany, NY, and graduated summa cum laude from one of 
the capital region's great institutions, Siena College, and then from 
Syracuse University School of Law. I would say to the Orange, we did 
not get into the Sweet Sixteen, but at least Mae D'Agostino is getting 
on the bench tonight. Right from the get-go, Mae established herself in 
private practice as a gifted and hard-working trial lawyer, taking 
cases ranging from medical malpractice to negligence to labor disputes.
  She formed her own firm, D'Agostino, Krackeler, Maguire & Cardona in 
1997, and has remained at the pinnacle of our State's legal profession 
ever since.
  Along the way, she was inducted into the prestigious American College 
of Trial Lawyers, and she has won awards that are too numerous to list 
in full for her service to her alma maters, the community, and for her 
position as a role model for other women in the profession.
  In 1992, Mae D'Agostino helped to organize an experimental program in 
which the Albany County court instructed parties in 420 cases to reach 
a settlement agreement or prepare for trial. The program resulted in 50 
negotiators settling over 150 pending cases. This is exactly the kind 
of dedication and creativity we need from our judges.
  I have always said that my three criteria in choosing people to 
recommend for judgeships are excellence, moderation, and diversity, and 
Mae fits all three of those to a T.
  It is particularly fitting that Mae D'Agostino, a groundbreaking 
nominee of such impeccable judgment and intelligence, is the first of 
President Obama's new nominees to receive a confirmation vote this 
Congress. I hope and expect that as the Judiciary Committee moves 
through nominees under the leadership of Chairman Leahy and Ranking 
Member Grassley, we will be able to approve many more of them quickly.
  We have the best and fairest judicial system in the world, but it 
depends on good judges to populate the bench. Especially when one in 
nine spots is vacant--let me repeat that: one in nine spots is now 
vacant--nominees with bipartisan support should not languish on the 
floor of the Senate.
  Mae D'Agostino's confirmation is a big step in the right direction, 
and we all must work to make sure there are many more to follow.
  This is a great day for Mae and her family, for the State of New 
York, and for our great Nation.
  Thank you. Before suggesting the absence of a quorum, I ask unanimous 
consent that the time be equally divided between both sides of the 
aisle.

[[Page S1891]]

  The PRESIDING OFFICER (Mr. Coons). Without objection, it is so 
ordered.
  Mr. SCHUMER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. CANTWELL. Mr. President, I yield back all remaining time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the nomination 
of Mae A. D'Agostino, of New York, to be United States District Judge 
for the Northern District of New York?
  Ms. CANTWELL. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Inouye), the 
Senator from New Jersey (Mr. Menendez), the Senator from Nebraska (Mr. 
Nelson), and the Senator from West Virginia (Mr. Rockefeller) are 
necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Utah (Mr. Hatch), the Senator from Missouri (Mr. Blunt), the 
Senator from Mississippi (Mr. Cochran), the Senator from North Dakota 
(Mr. Hoeven), the Senator from Illinois (Mr. Kirk), the Senator from 
Idaho (Mr. Risch), the Senator from Louisiana (Mr. Vitter), and the 
Senator from Mississippi (Mr. Wicker).
  Further, if present and voting, the Senator from Utah (Mr. Hatch) 
would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 88, nays 0, as follows:

                       [Rollcall Vote No. 46 Ex.]

                                YEAS--88

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Ensign
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Roberts
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--12

     Blunt
     Cochran
     Hatch
     Hoeven
     Inouye
     Kirk
     Menendez
     Nelson (NE)
     Risch
     Rockefeller
     Vitter
     Wicker
  The nomination was confirmed.
  The PRESIDING OFFICER (Mr. Manchin). Under the previous order, the 
motion to reconsider is considered made and laid upon the table. The 
President will be immediately notified of the Senate's action.

                          ____________________