[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
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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.
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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.
____________________