[Congressional Record Volume 157, Number 57 (Monday, May 2, 2011)]
[Senate]
[Pages S2569-S2572]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF ROY BALE DALTON, JR., TO BE U.S. DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF FLORIDA
______
NOMINATION OF KEVIN HUNTER SHARP TO BE U.S. DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF TENNESSEE
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nominations,
which the clerk will report.
The legislative clerk read the nominations of Roy Bale Dalton, Jr.,
of Florida, to be U.S. District Judge for the Middle District of
Florida, and Kevin Hunter Sharp, of Tennessee, to be United States
District Judge for the Middle District of Tennessee.
The PRESIDING OFFICER. Under the previous order, there will be 1 hour
of debate, equally divided and controlled between the two leaders or
their designees.
The Senator from Vermont.
Mr. LEAHY. Mr. President, as we return from Easter recess, judicial
vacancies around the country remain at historically alarming levels, as
they have for the last 3 years. With 1 out of every 9 Federal
judgeships still vacant, and judicial vacancies around the country
remaining at 95, we have serious work to do.
I thank the majority leader for scheduling votes on two more
nominations to fill judicial emergency vacancies. Roy Bale Dalton, Jr.,
has been nominated to fill a judgeship in the Middle District of
Florida and Kevin Hunter Sharp has been nominated to fill a judgeship
in the Middle District of Tennessee. Each nomination was reported
unanimously by the Judiciary Committee more than a month ago. They both
could be confirmed unanimously.
With cooperation from both sides of the aisle, the Senate could
consider the additional 13 judicial nominees ready for final Senate
action. I had hoped that the Senate would have considered a number of
them before taking its Easter recess 2 weeks ago. Among those nominees
are another five to fill additional judicial emergency vacancies, three
of them reported by the Judiciary Committee with bipartisan support,
including one which was reported unanimously but remains stalled on the
calendar awaiting final action.
We should certainly have proceeded with the judicial nominees for
whom there is no opposition and no reason for delay. That would have
allowed us to confirm another seven nominees. They have all been
thoroughly reviewed by the members of the Judiciary Committee in a
hearing and have all been recommended to the Senate unanimously. They
are Arenda L. Wright Allen to fill a vacancy in the Eastern District of
Virginia; Michael Francis Urbanski, to fill a vacancy in the Western
District of Virginia; Clair C. Cecchi to fill a vacancy in New Jersey;
Esther Salas to fill another vacancy in New Jersey; Paul Oetken and
Paul Engelmayer to fill vacancies in the Southern District of New York;
and Ramona Manglona to fill a vacancy in the Mariana Islands. The
Virginia nominees have been waiting for final consideration longer than
those nominees who are being allowed to be considered today.
Two of the nominees currently awaiting a Senate vote have twice been
considered by the Judiciary Committee and have twice been reported with
[[Page S2570]]
strong bipartisan support, first last year and again in February. They
are Susan Carney of Connecticut to fill a judicial emergency vacancy on
the United States Court of Appeals for the Second Circuit, and Michael
Simon to fill a judicial emergency vacancy on the District Court in
Oregon. Two of the nominations have been reported favorably by the
Committee three times--that of Goodwin Liu to fill a judicial emergency
vacancy on the Ninth Circuit and that of Jack McConnell, reported with
bipartisan support to fill a vacancy for the District of Rhode Island.
Another currently pending nomination has been reported favorably four
times, that of Judge Edward Chen to a judicial emergency vacancy on the
Northern District of California. All of these nominations have long
been ready for a Senate vote. So is the nomination of Caitlin Halligan
to fill a judicial vacancy on the DC Circuit.
All 15 of the pending nominees have a strong commitment to the rule
of law and a demonstrated faithfulness to the Constitution. All should
have an up-or-down vote after being considered by the Judiciary
Committee, and without weeks and months of needless delay.
If we join together, we can make real progress by considering all of
the judicial nominations now on the Senate's Executive Calendar. If the
Senate were to take favorable action on the 15 judicial nominations
currently pending and awaiting final Senate consideration, we could
reduce vacancies to below 90. In fact, we would be able to reduce them
to 80 for the first time since July 2009.
Federal judicial vacancies around the country still number too many,
and they have persisted for too long. Whereas the Democratic majority
in the Senate reduced vacancies from 110 to 60 in President Bush's
first 2 years, judicial vacancies still number 95 more than 26 months
into President Obama's term. By now, judicial vacancies should have
been cut in half, but we have barely kept up with attrition.
Regrettably, the Senate has not reduced vacancies dramatically as we
did during the Bush administration. In fact, the Senate has reversed
course during 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 staying above 90 since August 2009. The vacancy rate--
which we reduced from 10 percent at the end of President Clinton's term
to 6 percent by this date in President Bush's third year, and
ultimately to less than 4 percent in 2008--has now swelled to nearly 11
percent.
The two nominations we consider today demonstrate that there is no
reason the Senate cannot consider and confirm the President's
nominations to the Federal bench in a timely manner. Both nominees show
President Obama's commitment to working with home State Senators of
both parties to identify superbly qualified nominees in districts with
vacancies. I thank Senators Nelson, Rubio, Alexander and Corker for
working with President Obama on these nominations and congratulate them
along with the nominees and their families.
I have thanked the Ranking Republican on the Judiciary Committee,
Senator Grassley, for his cooperation this year. 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.
My friend from Iowa often speaks about the positive action we are
taking on nominations. In order to make these statements meaningful,
the Senate needs to consider and confirm the 15 judicial nominations
that are awaiting final consideration and action by the Senate. That
the Senate Judiciary Committee is doing its work is good, but to send
judicial nominations to the Senate is not enough. It means nothing if
they are not considered by the Senate. More than a dozen continue to
languish without positive action by the Senate. Some have been stalled
since last year and one from two years ago. They all are waiting for
what I would call ``positive action.''
I ask unanimous consent that a column by Ashley Belleau, the National
President of the Federal Bar Association be printed in the Record at
the end of my statement, which, in part, says:
The business of America is business, and when business
can't figure out if their patents are good, their contracts
are good, they can't figure out what to do about their tax
situation, things bog down. Businesses need a strong rule of
law and prompt rulings by judges. Vacancies desperately need
to be filled; new judges desperately need to be added. We owe
that to our citizens. We owe that to our Constitution. We owe
that to the rule of law. And we owe it to the cause of
justice.
Prompt and thoughtful justice, not endless delay, is what
the American people expect from their legal system. It is
what we deserve. It is what due process requires. And it is
the most cost-efficient approach to the resolution of
lawsuits in our nation's courts.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. I also ask unanimous consent that an editorial from the
Arizona Range News entitled ``Lack of Federal Judges a Serious Issue''
be printed in the Record at the end of my statement. It mentions a
resolution by the Phoenix Chapter of the Federal Bar Association urging
Arizona's congressional representatives to work to fill the vacancies
plaguing the Arizona courts.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. LEAHY. The Senate must do better. We must work together to ensure
that the Federal judiciary has the judges it needs to provide justice
to Americans in courts throughout the country. Judicial vacancies
throughout the country hinder the Federal judiciary's ability to
fulfill its constitutional role. They create a backlog of cases that
prevents people from having their day in court in a timely fashion.
This is unacceptable. That is why Chief Justice Roberts, Attorney
General Holder, and the President of the United States have spoken out
and urged the Senate to act.
Just before the Senate adjourned for its two-week Easter recess, the
White House Counsel spoke to the American Bar Association about the
need for a sense of greater urgency in filling these judicial
vacancies. I hope that we will follow this advice and make real
progress to ensure that the Federal courts are able to function for all
Americans.
We have a long way to go to do as well as we did during President
Bush's first term, when we confirmed 205 of his judicial nominations,
bringing the vacancy rate down from 10 percent to 4 percent. We
confirmed 100 othose judicial nominations during the 17 months I was
Chairman during President Bush's first 2 years in office. So far, well
into President Obama's third year in office, the Senate has only been
allowed to consider 79 of President Obama's Federal circuit and
district court nominees. We remain well short of the benchmarks we set
during the Bush administration; 79 is well short of 205.
Exhibit 1
[From the Atlanta Journal-Constitution, Apr. 27, 2011]
Business, Defendants Harmed in Cost-Cutting at Federal Courts
(By Ashley L. Belleau)
Just as budgets matter, so does justice. The two are
connected. Making sure we have enough judges in our federal
courts will save dollars, not waste them.
The insufficient number of judges in our federal courts is
costing our country in dollars and protracted litigation.
Manpower and money are foolishly wasted. Record caseloads in
many federal judicial districts cause trials to be delayed,
especially civil cases. This is not good for the state of
justice in our nation.
The fact that we don't have enough judges to decide
promptly the federal civil and criminal lawsuits in our
country owes itself to the Congress and the president. Both
have failed to create enough judgeships in high-caseload
areas of the country, like California and the border courts
in Texas. Both have failed to keep the process moving by
timely providing capable, qualified individuals to fill
judgeships as they open up due to retirement, death or
resignations.
As a result our federal court system is bursting at the
seams. With 12 percent of judgeships vacant, temporary
judgeships expiring, and more courts in emergency mode than
ever, there is an unprecedented crisis in our third branch of
government. The phrase ``justice delayed is justice denied''
describes the dire situation in many federal courthouses.
Judicial vacancies plainly undermine the capacity of our
courts to render justice within a reasonable period of time.
Sadly, few Americans understand the impact these judicial
vacancies have on their lives. Those of us who try federal
cases know
[[Page S2571]]
its impact in the continuance of cases for months, even
years, without decision. Vacancies and delay add greater
costs to already high litigation expenses. For business
clients, these costs get passed on to customers. And when the
United States is a party to the case, it means that the
public is paying that higher tab.
For criminal defendants awaiting trial, it can mean more
detention time, adding even more costs to the taxpayer. Just
last year, the federal cost of pretrial detention alone was
$1.4 billion, according to the Department of Justice.
At a recent forum sponsored by the Federal Bar Association
and the Brookings Institution, Federal District Judge Royal
Furgeson commented on the enormous impact that vacancies on
the federal bench have on the pace of litigation and
ultimately the American economy: The business of America is
business, and when businesses can't figure out if their
patents are good, their contracts are good, they can't figure
out what to do about their tax situation, things bog down.
Businesses need a strong rule of law and prompt rulings by
judges. Vacancies desperately need to be filled; new judges
desperately need to be added. We owe that to our citizens. We
owe that to our Constitution. We owe that to the rule of law.
And we owe it to the cause of justice.
Prompt and thoughtful justice, not endless delay, is what
the American people expect from their legal system. It is
what we deserve. It is what due process requires. And it is
the most cost-efficient approach to the resolution of
lawsuits in our nation's courts.
____
Exhibit 2
[From the Arizona Range News, Apr. 27, 2011]
Lack of Federal Judges a Serious Issue
At the beginning of the year, Judge John Roll, the
presiding federal judge in Arizona, was seeking permission to
delay bringing felons to trial from the usual 70-day
requirement to up to 180 days. That's the same Judge Roll who
was gunned down just days later in Tucson by a deranged
assassin.
Roll termed the problem a ``judicial emergency'' prompted
by the number of cases flooding the judicial docket in
Arizona and the federal court's inability to handle them all
in a speedy fashion.
The problem is and remains a lack of judges and court staff
to handle the caseload.
According to news reports, based on its caseload, the
judicial district of Arizona is eligible for five more
judgeships. The state is authorized for 13, but has three
vacancies, two in the Tucson division.
As a direct result of illegal immigration prosecutions, two
years ago there were 3,023 felony cases filed in federal
court in Arizona. That increased to 4,311 the next year and
5,219 last year. In just Tucson, felony filings went from
1,564 two years ago to 3,289 last year.
The power to appoint more judges lies with Congress, but
our representatives and senators, while reportedly
supportive, have not been proactive.
The problem prompted the Phoenix Chapter of the Federal Bar
Association to issue last month a resolution to congressional
members to get the vacancies filled and to add to the court
staff and its facilities.
In fact, judicial vacancies are a problem across the
nation. According to a CNN report, there are 99 vacancies in
the 857 federal district and appeals court judgeships,
amounting to about 12 percent of the judicial seats. Just 46
names have been put forth by President Obama to fill those
openings. The Administrative Office of the U.S. courts
predicts at least 15 more vacancies this year.
We urge you to contact your congressional members to
champion a solution to the very real needs of the judge and
staff shortages facing the federal courts in Arizona.
And we would ask you to ask them to act not only for our
state's sake, but in memory of Judge Roll who served his
state and country well.
Mr. ALEXANDER. Mr. President, I rise today to support the nomination
of Kevin Sharp to fill a judicial vacancy on the U.S. District Court
for the Middle District of Tennessee. The Senate will be voting on the
President's nomination within a few minutes. Kevin is an outstanding
individual. I am pleased to be able to support his nomination today.
As a Governor, I appointed about 50 judges. I tried to determine in
doing that if he or she had the character and the intelligence and the
temperament to be a judge, whether that person would treat people
before the bench with courtesy, and most important whether they were
determined to be impartial to litigants before the court. I believe
Kevin Sharp meets these qualifications, and I am pleased that he will
bring that character and skill to his service on the bench. I
congratulate the President for nominating him.
Kevin is a native of Tennessee. He is a founding partner of the
national law firm of Drescher and Sharp where he has been an expert in
employee law, employee benefits, and commercial disputes. He is a
graduate of two Tennessee institutions of higher education. He earned
his bachelor of science degree from Christian Brothers College,
graduating summa cum laude. He earned his juris doctorate from
Vanderbilt, where he was a Weldon B. White Scholar, an Associate
Problem Editor on the Moot Court Board, a recipient of the Appellate
Advocacy Award, and a research assistant on issues of constitutional
law and habeas corpus.
As a lawyer, Kevin Sharp has repeatedly earned recognition from his
peers, being named one of the Nashville Business Journal's best of the
bar in 2003, and each year from 2005 to 2009.
Prior to becoming a lawyer, Kevin served in the U.S. Navy as a flight
crew member on the P-3 Orion operating in patrol/reconnaissance, and
the antisubmarine warfare capacities as part of the U.S. Pacific fleet.
Kevin has broad support in Tennessee. Both the White House and my
office and Senator Corker's office have received numerous letters from
Republicans, Democrats, and those who didn't indicate any sort of
partisan leaning, which is the way it ought to be.
Although the President nominated Kevin on November 17 of last year
for the first time, the seat that he has been nominated to fill is
designated as a judicial emergency. It has been vacant for 4 years,
since March 1, 2007. This is the third longest vacancy on the list of
judicial emergencies, and the people of Tennessee deserve to have this
vacancy filled.
I thank the President for the nomination and the Judiciary
Committee's prompt consideration of that nomination. I am grateful for
the opportunity to join in support of the nomination of Kevin Sharp,
and I encourage my colleagues to join me in supporting the nomination
today.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, today, the Senate will confirm two more
of President Obama's judicial nominees. I continue to work with the
chairman of the committee to ensure nominees are afforded a fair but
thorough process and in a timely manner.
Today's vote marks the 19th nominee to be confirmed in just 42 days
the Senate has been in session this Congress. The Judiciary Committee
is holding a nominations hearing on Wednesday. On Thursday we will
report additional judicial and executive nominees to the floor. Thus
far we have taken positive action on 43 of 63 nominees submitted this
Congress, or 68 percent of all nominees.
Let me repeat that, because I am going to say something that makes it
very disgusting to me, some things that are coming out of the White
House. Thus far we have taken positive action on 43 of 63 nominees
submitted to this Congress, or 68 percent of the nominees. With this
progress, I was then surprised at the recent remarks of the White House
Counsel before the American Bar Association members this past April 14.
This counsel addressed the group and complained about the pace of
judicial appointments. He encouraged the group to escalate the general
sense of urgency regarding judicial appointments. Press reports
indicate that he asked them to play a larger role to ``bring home the
impact or the effects of gridlock.''
So, Mr. President, not only do I think these remarks are unjustified,
given the pace of confirmations this year--and that is the 68 percent I
have referred to--but they also reflect a failure on the part of the
White House Counsel to acknowledge where the problem begins. It begins
with the President of the United States and his staff--the White House
Counsel particularly.
This brings me to the point: If we are acting so slowly, why has the
President failed to send to the Senate a nomination for 55 percent of
the current judicial vacancies? This statistic certainly does not
indicate any sense of urgency on the part of the White House, and it
brings further attention to the intellectual dishonesty of the White
House in its speech to the ABA members that we are not acting fast
enough on the Hill.
Well, having said that, I want to say a few words about the two
nominees we are going to be voting on today. Roy Dalton, Jr. is
nominated to be U.S. District Court judge for the Middle District of
Florida. Mr. Dalton received
[[Page S2572]]
his BA with high honors and his JD from the University of Florida.
Following law school, he joined the firm of Dean, Ringers, Morgan &
Lawton as an associate where he later became a principal of the firm.
In 1982, the nominee founded his first law firm, Roy B. Dalton, Jr.,
P.A. He would later form other practices where he would serve as a
principal. In 1999 he began working as ``of counsel'' for the firm
Gray, Harris & Robinson, where his practice area grew to include civil
litigation, government relations, appellate practice, and business
practice for individuals. As a former Senate staffer, Mr. Dalton spent
most of 2005 serving as counsel to his former legal partner and U.S.
Senator, Mel Martinez. Mr. Dalton has also practiced in appellate
matters as ``of counsel'' for the Carlyle appellate law firm, a post he
has held since 2004. The ABA Standing Committee on the Federal
Judiciary gave him the rating of: substantial majority ``Well
Qualified''; minority ``Qualified.'' I am pleased to support Mr. Dalton
today.
I also rise in support of Kevin Sharp to be U.S. District Court Judge
for the Middle District of Tennessee. Mr. Sharp enlisted in the U.S.
Navy following high school and received an honorable discharge in 1986.
The nominee received his B.S. from Christian Brothers College and a
J.D. from Vanderbilt University School of Law. He began his legal
career as an associate with the firm of Stokes & Bartholomew. After a
yearlong stint working as an attorney for the U.S. Congressional Office
of Compliance, Mr. Sharp returned to Stokes, Bartholomew, Evans &
Petree, eventually making partner. Since 2003, he has been a
shareholder and partner at Drescher & Sharp, where he has focused his
legal practice on employment, labor, and disability law. The ABA
Standing Committee on the Federal Judiciary has rated him ``Qualified''
and I urge my colleagues to support this nominee.
I note that the vacancy Mr. Sharp will fill was created by the
retirement of Judge Echols in March of 2007. A few months later, on
June 13, 2007, President Bush nominated Gus Puryear to fill the
vacancy. Mr. Puryear waited 8 months before he had a hearing. That was
the last action the committee took on the nomination. His nomination
languished in committee for another 10 months before being returned to
the President in January 2009, at the end of President Bush's term. It
is both unfortunate and unnecessary that this seat has remained vacant
for so long.
I congratulate each of these men for their achievements and commend
them for the public service they have given and that they will provide
to the people of this country, and particularly to their respective
States in the future.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. I yield back all remaining time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, the Dalton nomination is confirmed.
The question now occurs on the Sharp nomination.
Mrs. BOXER. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Kevin Hunter Sharp, of Tennessee, to be United States District Judge
for the Middle District of Tennessee?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Menendez), the Senator from Florida (Mr. Nelson), the Senator from
Vermont (Mr. Sanders), and the Senator from Colorado (Mr. Udall) are
necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Illinois (Mr. Kirk), the Senator from Kansas (Mr. Moran), the
Senator from Florida (Mr. Rubio), the Senator from Louisiana (Mr.
Vitter), the Senator from Utah (Mr. Hatch), the Senator from Georgia
(Mr. Isakson), and the Senator from Nevada (Mr. Ensign).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted ``yea.''
The PRESIDING OFFICER (Mr. Manchin). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 89, nays 0, as follows:
[Rollcall Vote No. 62 Ex.]
YEAS--89
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hoeven
Hutchison
Inhofe
Inouye
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (NM)
Warner
Webb
Whitehouse
Wicker
Wyden
NOT VOTING--11
Ensign
Hatch
Isakson
Kirk
Menendez
Moran
Nelson (FL)
Rubio
Sanders
Udall (CO)
Vitter
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motions to
reconsider are considered made and laid upon the table. The President
will be immediately notified of the Senate's action, and the Senate
will resume legislative session.
____________________