[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.
____________________