[Congressional Record Volume 157, Number 157 (Wednesday, October 19, 2011)]
[Senate]
[Pages S6713-S6716]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF MARK RAYMOND HORNAK TO BE UNITED STATES DISTRICT JUDGE 
                FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                                 ______
                                 

 NOMINATION OF ROBERT DAVID MARIANI TO BE UNITED STATES DISTRICT JUDGE 
                FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                                 ______
                                 

NOMINATION OF ROBERT N. SCOLA, JR., TO BE UNITED STATES DISTRICT JUDGE 
                  FOR THE SOUTHERN DISTRICT OF FLORIDA

  The ACTING PRESIDENT pro tempore. Under previous order, the Senate 
will proceed to executive session to consider the following 
nominations, which the clerk will report.
  The bill clerk read the nominations of Mark Raymond Hornak, of 
Pennsylvania, to be United States District Judge for the Western 
District of Pennsylvania, Robert David Mariani, of Pennsylvania, to be 
United States District Judge for the Middle District of Pennsylvania, 
and Robert N. Scola, Jr., of Florida, to be United States District 
Judge for the Southern District of Florida.
  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 10 minutes of debate, equally divided in the usual form.
  Who yields time?
  The Senator from Pennsylvania.
  Mr. CASEY. Madam President, I rise to speak on both nominees. I will 
start with Bob Mariani. And I refer to him that way because I have 
known him a long time, but his full name is Robert David Mariani. Bob 
Mariani is someone I know to be a person of not just high intellect and 
ability but also someone with great integrity.
  Bob Mariani was born in Scranton, PA--the same city in which I was 
born. I still live there and so does he. He received his law degree cum 
laude in 1976 from the Syracuse University School of Law and also 
received his college education cum laude from Villanova University, 
graduating within the top 10 percent of his class. He was ranked second 
within his major field of study as an undergraduate.
  Bob Mariani is a well-respected lawyer and advocate in northeastern 
Pennsylvania. He has received the highest rating--well qualified--from 
the American Bar Association. He spent 34 years as a civil litigator in 
Scranton, PA, where he specializes in labor and employment law. Since 
2001, he has been the sole shareholder in the law firm that bears his 
name. He was also the sole proprietor of a similar law office that 
bears his name from 1993 to the year 2001, and a partner as well in an 
earlier iteration of that law firm,

[[Page S6714]]

Mariani & Greco, from 1979 to 1993. Bob has taught labor law at Penn 
State University and been an instructor at Penn State's Union 
Leadership Academy Program, where he taught labor law and collective 
bargaining.
  Bob has received a whole series of commendations and awards that I 
won't list due to the time we have today, but probably the most 
important thing I could say about Bob--and I know I might be a little 
biased because I know him and have great respect for him--is that he is 
a person who will apply the law; who understands when someone comes 
before him, they should be accorded basic fairness no matter who they 
are, no matter what point of view, and no matter where they come from.
  I know integrity and commitment to public service--not just of the 
law but the public service a judge can provide--are the values that 
will guide Bob Mariani as a judge, and so I am very happy we will be 
voting on his nomination.
  Also today, we will be voting on the confirmation of Mark Raymond 
Hornak. I have not known Mark as long as I have known Bob Mariani, but 
I have known him for more than 15 years now. Mark is a native of 
Homestead, PA--southwestern Pennsylvania.
  By way of a quick summary of his educational background, he got his 
law degree summa cum laude--the highest honors--in 1981 from the 
University of Pittsburgh Law School, graduating second in his class. He 
was editor-in-chief of the University of Pittsburgh Law Review. He got 
his college degree from the University of Pittsburgh as well, and was a 
dean's list student and member of the honor society there.
  His career has been varied and significant as a lawyer and advocate. 
He has been a partner in the law firm of Buchanan Ingersoll & Rooney 
since 1982. He has specialized in civil litigation, labor and 
employment law, media defense and governmental representation, and is a 
member of the firm's executive committee.
  He is the solicitor of the Sports & Exhibition Authority of 
Pittsburgh and Allegheny County, and also has been very active in his 
community in Pittsburgh.
  He also represents national television, radio, and publishing clients 
in media litigation, including defamation, first amendment and access 
issues, and in transactional matters.
  Prior to joining the Buchanan Ingersoll & Rooney firm, Mark served as 
law clerk to the Honorable James M. Sprouse of the United States Court 
of Appeals for the Fourth Circuit.
  Mark also has a long list of honors and achievements that I won't 
list today, but, again, he is someone who has great integrity and 
ability and who understands serving on the bench on a Federal district 
court--whether it is in the Middle District of Pennsylvania, as in Bob 
Mariani's case, or the Western District of Pennsylvania, as in Mark 
Hornak's case--is public service, and with it comes the 
responsibilities and obligations of being a public servant. Both of 
these candidates understand that--both Bob Mariani and Mark Hornak--and 
so I am honored to be able to speak today regarding their nominations.
  I would urge a ``yes'' vote on both nominations.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Franken). The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, we have a judge who will be in 
front of the Senate, and it is my understanding it has been worked out 
that there will be a voice vote. I want to thank the leadership of the 
appropriate committee, the Judiciary Committee, for handling this with 
dispatch. In a big-growth State such as Florida, where there is such a 
caseload in the Federal judiciary, when we have a vacancy it needs to 
be attended to right away.
  Fortunately, the two Senators from Florida have tried to take the 
politics out of the selection of judges by letting the interviewing 
process, the selection process be done by a panel of prominent citizens 
called a judicial nominating commission, and they recommended these 
three to the two Senators. The Senators then interviewed them and let 
the White House know, and the White House agreed--much to the credit of 
this White House--that they would select from among those we submitted. 
Those we submitted are the ones who came out of the judicial nominating 
commission. Thus was the selection of Judge Robert Scola, whom we will 
confirm today, and who was nominated in May of this year.
  Judge Scola received his bachelor's from Brown University, went to 
Boston College for law school, and graduated cum laude. He practiced 
law as a criminal defense attorney representing individuals and 
corporations in both State and Federal courts and then he spent 6 years 
working as a prosecutor in the Miami-Dade County State Attorney's 
office. He was then appointed back in 1995 by the Governor to the 
Eleventh Judicial Circuit Court bench, where he has sat as a State 
court judge all the way up until today. He received his well-qualified 
rating from the American Bar Association.
  Certainly Senator Rubio and I told the White House when we submitted 
the names from the judicial nominating commission that we agreed with 
all of these nominees. So with this strong tradition of bipartisan 
support for our judicial nominees, I bring to the Senate's attention 
for confirmation Judge Robert Scola.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I rise for literally 30 seconds, because I 
failed, when talking about both the Mariani and Hornak nominations, to 
thank Senator Toomey, my colleague from Pennsylvania. We worked 
together on both these nominees to arrive at a consensus position, and 
so I am grateful for Senator Toomey's help, and grateful for the work 
of his staff as well.
  I yield the floor.
  Mr. LEAHY. Mr. President, the Senate will vote today on 3 of the 26 
judicial nominations reported favorably by the Judiciary Committee and 
still awaiting a Senate vote. All three of these nominations, two to 
Federal district courts in Pennsylvania and one to the Southern 
District of Florida, were reported unanimously by the Judiciary 
Committee before the August recess. All three have the support of both 
Democratic and Republican home State Senators. Two of them are to fill 
judicial emergency vacancies. Senate Democrats were prepared to have 
votes on all three nominations 3 months ago when they were first 
reported to the Senate. I have heard no reason or explanation for why 
the Republican leadership refused until now to consent to votes on 
these nominations.
  There is also no good reason or explanation for the Republican 
leadership's continued refusal to vote on the more than two dozen 
nominations stalled before the Senate. With Republican agreement, we 
could vote on all of them. Like the three nominations the Senate 
considers today, 21 of the other judicial nominations pending on the 
calendar and still being delayed were reported unanimously by the 
Judiciary Committee. At a time when vacancies on Federal courts 
throughout the country remain near 90, with over 10 percent Federal 
judgeships vacant, the delays in considering and confirming these 
consensus judicial nominees is inexcusable.
  The American people need functioning Federal courts with judges, not 
vacancies. In his recent letters to the Senate majority leader and 
Republican leader, Bill Robinson, the president of the American Bar 
Association, highlighted the serious problems created by these 
excessive vacancies, writing:

       Across the nation, federal courts with high caseloads and 
     longstanding or multiple vacancies have no choice but to 
     delay or temporarily suspend their civil dockets due to 
     Speedy Trial Act requirements. This deprives our federal 
     courts of the capacity to deliver timely justice in civil 
     matters and has real consequences for the financial well-
     being of businesses and for individual litigants whose lives 
     are put on hold pending resolution of their disputes.

  Mr. Robinson is not alone. We recently heard from Justice Scalia, who 
testified before the Senate Judiciary Committee that the extensive 
delays in the confirmation process are already having a chilling effect 
on the ability to attract talented nominees to the Federal bench. Chief 
Justice Roberts has also described the ``persistent problem of judicial 
vacancies in critically overworked districts.'' Justice Kennedy has 
spoken about the threat to the quality of American justice. This is not 
a partisan issue, but an issue affecting hardworking Americans who are 
denied justice when their cases are delayed by overburdened courts.

[[Page S6715]]

  Though it is within the Senate's power to take significant steps to 
address this problem, refusal by Senate Republicans to consent to 
voting even on consensus judicial nominations has kept judicial 
vacancies high for years. The number of judicial vacancies has been 
near or above 90 for well over 2 years. A recent report by the 
nonpartisan Congressional Research Service found that we are in the 
longest period of historically high vacancy rates in the last 35 years. 
These needless delays do nothing to help solve this serious problem and 
are damaging to the Federal courts and the American people who depend 
on them.
  More than half of all Americans--almost 170 million--live in 
districts or circuits that have a judicial vacancy that could be filled 
today if the Senate Republicans just agreed to vote on the nominations 
now pending on the Senate calendar. As many as 25 States are served by 
Federal courts with vacancies that would be filled by these 
nominations. Millions of Americans across the country are harmed by 
delays in overburdened courts. The Republican leadership should explain 
why they will not consent to vote on the qualified consensus candidates 
nominated to fill these extended judicial vacancies.
  Senator Grassley and I have worked together to ensure that each of 
the 26 nominations on the Senate calendar was fully considered by the 
Judiciary Committee after a thorough but fair process, including 
completing our extensive questionnaire and questioning at a hearing. In 
fact, all the nominations reported by the committee have not only gone 
through vetting by the committee, but were vetted by the 
administration. The White House has worked with the home State 
Senators, Republicans and Democrats, and each of the judicial nominees 
being delayed from a Senate vote is supported by both home State 
Senators. The FBI has conducted a thorough background review of each 
nominee. The ABA's Standing Committee on the Federal Judiciary has 
conducted a peer review of their professional qualifications. When the 
nominations are then reported unanimously by the Judiciary Committee, 
there is no reason for months and months of further delay before they 
can start serving the American people.
  Despite the damaging high vacancies that have persisted throughout 
President Obama's term, some Republican Senators have tried to excuse 
their delay in taking up nominations by suggesting that the Senate is 
doing better than we did during the first 3 years of President Bush's 
administration. It is true that President Obama is doing better in that 
he has worked more closely with home State Senators of both parties. As 
I have noted, all of the judicial nominees pending and being stalled on 
the Senate Executive Calendar have the support of both home State 
Senators in every case. That was not true of President Bush and led to 
many problems.
  I have continued the practices I followed as chairman when President 
Bush was in office. In fact, when the Kansas Senators reversed 
themselves and opposed a judicial nominee that they had once approved, 
I honored their change of position and did not proceed to a vote in 
committee on that nominee.
  But it is wrong to suggest that the Senate has achieved better 
results than we did in 2001 through 2003. As I have pointed out, in the 
17 months I chaired the Judiciary Committee in 2001 and 2002, the 
Senate confirmed 100 of President Bush's Federal circuit and district 
court nominees. By contrast, after the first 2 years of President 
Obama's administration, the Senate was only allowed to proceed to 
confirm 60 of his Federal circuit and district court nominees. Indeed, 
as 2010 was drawing to a close, Senate Republicans refused to proceed 
on 19 judicial nominees that had been considered and reported by the 
Judiciary Committee and forced them to be returned to the President. It 
has taken the Senate nearly twice as long to confirm the 100th Federal 
circuit and district court judge nominated by President Obama as we had 
when President Bush was in the White House.
  During the third year of President Bush's administration, the Senate 
confirmed 68 of his Federal circuit and district court nominees. 
Indeed, by mid-October 2003, 63 judges had been confirmed. In contrast, 
this year the Senate has yet to confirm 50 of President Obama's 
judicial nominees--despite the fact that 26 have been ready for final 
consideration and approval and remain stalled from confirmation by the 
Senate.
  For those who contend percentages are significant, I note that the 
Washington Post reported this week that a lower percentage of President 
Obama's nominees have been confirmed than President Bush's, with only 
68 percent of President Obama's Federal circuit and district court 
nominees confirmed compared to 81 percent of President Bush's.
  I think confirmations and vacancy numbers better reflect the reality 
in our Federal courts and for the American people. It is hard to see 
how the Senate is supposed to be doing better when it remains so far 
behind the pace we set in those years. During President Bush's first 4 
years, the Senate confirmed a total of 205 Federal circuit and district 
court judges. As of today, we have almost 100 confirmations of 
President Obama's circuit and district court nominations to go in order 
to match that total during the next 12 months. At this juncture in 
President Bush's administration the Senate had confirmed 163 Federal 
circuit and district court judges, and the vacancy rate was down to 5 
percent, with 46 vacancies. By contrast confirmations of President 
Obama's Federal circuit and district court nominees total only 109, and 
judicial vacancies are now nearly twice as high with a vacancy rate of 
over 10 percent.
  This is not the way to make real progress. No resort to percentages 
of nominees ``processed'' or ``positive action'' by the committee can 
excuse the lack of real progress by the Senate. In the past, we were 
able to confirm consensus nominees more promptly, often within days of 
being reported to the full Senate. They were not forced to languish for 
months. The American people should not have to wait weeks and months 
for the Senate to fulfill its constitutional duty and ensure the 
ability of our Federal courts to provide justice to Americans around 
the country.
  All three of the nominations the Senate will vote on today were 
reported unanimously by the committee in July. President Obama first 
nominated Robert Mariani in December 2010 to fill a judicial emergency 
vacancy in the Middle District of Pennsylvania. Mr. Mariani has been a 
litigator in private practice for 35 years. For almost 20 years, he has 
managed his own law firm as a solo practitioner. Mr. Mariani has the 
bipartisan support of his home State Senators, a Democrat and a 
Republican. The ABA's Standing Committee on the Federal Judiciary 
unanimously rated him ``well qualified'' to serve, its highest possible 
rating.
  Mark Hornak is nominated to fill a vacancy in the U.S. District Court 
for the Western District of Pennsylvania. As with Mr. Mariani, both of 
Pennsylvania's Senators support Mr. Hornak's nomination, which received 
the highest possible rating from the ABA's Standing Committee on the 
Federal Judiciary, unanimously ``well qualified.'' Mr. Hornak has 
worked in private practice for 30 years in the Pittsburgh office of 
Buchanan, Ingersoll & Rooney, where he is a member of the firm's 
executive committee. He has served as a court-approved mediator and 
special master in the Western District of Pennsylvania, the district to 
which he is nominated. Following his law school graduation, he served 
as a law clerk to Judge James Sprouse of the U.S. Court of Appeals for 
the Fourth Circuit.
  We will also vote on the nomination of Judge Robert Scola to fill a 
judicial emergency vacancy in the Southern District of Florida. For the 
past 16 years, Judge Scola has served as a State judge in the Eleventh 
Judicial Circuit of Florida. He has been reelected to that position 
three times. Judge Scola previously spent 9 years in private practice 
as a criminal defense attorney, and 6 years as a State prosecutor in 
Miami-Dade County. The ABA's Standing Committee on the Federal 
Judiciary unanimously rated Judge Scola ``well qualified'' to serve, 
its highest rating. Judge Scola has the bipartisan support of his home 
State Senators, a Democrat and a Republican. The Chief Judge for the 
Southern District of Florida, Judge Federico Moreno, a President George 
H.W. Bush

[[Page S6716]]

appointee, wrote months ago to the Senate to urge the speedy 
confirmation of Judge Scola to address his court's overburdened 
schedule. I am glad we are finally able to consider his nomination 
today.
  I hope that in the weeks ahead we can build on today's progress by 
considering more of the nearly two dozen well-qualified nominees still 
awaiting a Senate vote. This is an area where the Senate must come 
together to address the serious judicial vacancies crisis on Federal 
courts around the country that has persisted for well over 2 years. We 
can and must do better for the nearly 170 million Americans being made 
to suffer by these unnecessary Senate delays.
  Mr. GRASSLEY. Mr. President, today the Senate will vote on three more 
judicial nominations. With these votes, we will have confirmed 14 
nominees this month and 52 nominees this year. We continue to achieve 
great progress in committee as well. Eighty-four percent of the 
judicial nominees submitted this Congress have been afforded hearings. 
Only 78 percent of President Bush's nominees had hearings for the 
comparable time period during his Presidency. We have reported 76 
percent of the judicial nominees, compared to only 71 percent of 
President Bush's nominees. In total, the committee has taken positive 
action on 83 of the 99 nominees submitted this Congress, or 84 percent. 
Overall, we have confirmed over 70 percent of President Obama's 
judicial nominees since he took office.
  I will support the confirmation of each of the nominees today. I have 
a few words to say about each nominee.
  Mark Raymond Hornak is nominated to be U.S. district judge for the 
Western District of Pennsylvania. Mr. Hornak graduated with a B.A. from 
the University of Pittsburgh in 1978, and with a J.D. from the 
University of Pittsburgh School of Law in 1981. He began his legal 
career as a clerk for Judge Sprouse on the Fourth Circuit. Since his 
clerkship, the nominee has spent his entire career at Buchanan 
Ingersoll & Rooney where he practices labor and employment law, 
representing primarily employers and public agencies.
  Mr. Hornak received a unanimous ``well qualified'' rating from the 
American Bar Association Standing Committee on the Federal Judiciary.
  Robert David Mariani is nominated to be U.S. district judge for the 
Middle District of Pennsylvania, a seat deemed to be a judicial 
emergency. He received his A.B., cum laude, from Villanova University 
in 1972, and his J.D. from Syracuse University College of Law in 1976. 
Mr. Mariani began his legal career by practicing labor, employment, 
commercial, real estate, civil, and criminal law. During this time, Mr. 
Mariani also served as the Solicitor to the Scranton-Dumore Sewer 
Authority.
  Beginning in 1980, Mr. Mariani dedicated himself to the exclusive 
practice of labor and employment law. His expertise includes collective 
bargaining, labor arbitration, and employee pension and benefits law 
under ERISA and the Internal Revenue Code. Mr. Mariani has practiced 
before Federal and State courts, the NLRB, the EEOC, and the 
Pennsylvania Human Rights Campaign. He also serves as counsel to the 
Northeast Pennsylvania School District Health Trust and the Berks 
County School District Health Trust. In addition to his practice, Mr. 
Mariani also serves as an arbitrator, where he resolves complex labor 
disputes through negotiation.
  Mr. Mariani received a unanimous ``well qualified'' rating from the 
American Bar Association Standing Committee on the Federal Judiciary.
  I had some initial concerns regarding Mr. Mariani's nomination. Mr. 
Mariani has expressed labor policy preferences against at-will 
employment and in favor of card check for union employees. I asked him 
about these statements at his hearing and in followup questions. Based 
on his responses, I am willing to give him the benefit of the doubt 
that he will be able to be fair and impartial as a judge.
  Robert N. Scola is nominated to be U.S. district judge for the 
Southern District of Florida, another seat deemed to be a judicial 
emergency. Judge Scola earned his B.A. in 1973 from Stanford University 
and his J.D. from Boston College of Law in 1980. From 1980 to 1986, 
Judge Scola served as a prosecutor in State court. He began with 
misdemeanor cases and finished with prosecuting first degree murder and 
death penalty cases.
  From 1986 to 1995, Judge Scola served as a criminal defense attorney. 
He practiced solo for most of this time. From 1992 to 1993, he joined 
two other attorneys in criminal defense. Judge Scola specialized in 
criminal defense in both State and Federal court.
  Governor Lawton Chiles appointed Judge Scola to his current position 
as a circuit judge for the Eleventh Judicial Circuit of Florida in and 
for Miami-Dade County in 1995. Since then, the circuit has elected and 
reelected him without opposition in 1996, 2002, and 2008. He has served 
in the family division, civil division, and has also served as an 
appellate judge for county court and administrative law cases.
  Judge Scola received a unanimous ``well qualified'' rating from the 
American Bar Association Standing Committee on the Federal Judiciary.
  The PRESIDING OFFICER. Under the previous order, the Hornak and Scola 
nominations are confirmed.
  The question is, Will the Senate advise and consent to the nomination 
of Robert David Mariani, of Pennsylvania, to be United States District 
Judge for the Middle District of Pennsylvania?
  Mr. CASEY. Mr. President, 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 bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Wisconsin (Mr. Kohl) is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 82, nays 17, as follows:

                      [Rollcall Vote No. 169 Ex.]

                                YEAS--82

     Akaka
     Alexander
     Ayotte
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     Durbin
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Kerry
     Kirk
     Klobuchar
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--17

     Barrasso
     Blunt
     Boozman
     Burr
     Coburn
     DeMint
     Enzi
     Hutchison
     Inhofe
     Johnson (WI)
     Lee
     McConnell
     Paul
     Risch
     Roberts
     Shelby
     Vitter

                             NOT VOTING--1

       
     Kohl
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table and the 
President will be immediately notified of the Senate's action.

                          ____________________