[Congressional Record Volume 159, Number 182 (Friday, December 20, 2013)]
[Senate]
[Pages S9072-S9080]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                      Nomination of Brian J. Davis

  Mr. GRASSLEY. Madam President, today we consider the nomination of 
Brian Davis to be a District Court Judge for the Middle District of 
Florida. I will vote for him today (although there has been some 
controversy surrounding his nomination). I wish to take a minute to 
discuss the nomination.
  Judge Davis made a number of controversial remarks a few years ago. 
During his hearing last Congress, Judge Davis was asked to provide some 
clarification regarding those comments. After carefully reviewing his 
answers from the hearing, many of us concluded that they didn't provide 
the clarity that we had hoped he would provide. For that reason, 
following his hearing, I asked Judge Davis some follow-up questions for 
the Record, hoping to get the clarity, in writing, that I didn't hear 
him provide during his hearing.
  Unfortunately, after reviewing his written answers, I concluded that 
Judge Davis didn't fully appreciate why many found his comments so 
troubling. For instance, when I asked him about these statements he 
wrote that a ``number of my statements could be misunderstood'', but he 
neither apologized for them nor said anything to demonstrate that he 
fully appreciated why his comments were so problematic.
  As a result, in the last Congress I reluctantly opposed his 
nomination.
  Judge Davis, of course, was renominated this Congress. On September 
12th, he submitted a letter to the Florida Senators.
  In that letter, Judge Davis apologized for his comments--without 
qualification.
  He wrote, ``I believe that several of the statements I made in the 
past were inappropriate and improper.'' He went on to write, ``I 
apologize for any inappropriate statements and deeply recognize the 
harm that they could cause if they gave the misimpression that I am 
anything other than impartial or that I maintain any bias or 
prejudice.''
  As I wrote to Judge Davis in a follow-up letter on September 25th, 
unlike the last Congress, I believe the apology Judge Davis transmitted 
on September 12 for those comments was without qualification. 
Therefore, in my view, it demonstrated both courage and humility.
  In my letter to Judge Davis, I asked him simply to confirm that he 
was apologizing for his comments regarding Dr. Henry Foster, Dr. 
Joycelyn Elders, and Justice Thomas.
  In a follow-up letter he wrote to me on September 26, he confirmed 
those were the ``inappropriate comments'' he referenced in his letter 
to the Florida Senators.
  I ask consent that both my letter to Judge Davis, and his response, 
be made part of the Record.
  I have given this nomination a great deal of consideration. I believe 
Judge Davis has taken steps this Congress that, in my view, he didn't 
appear willing to take last Congress. Taking this into consideration, 
together with the fact that he enjoys the support of his home State 
Senators, I am willing to give Judge Davis the benefit of the doubt and 
will support his nomination today.
  I yield the floor.

                               Washington, DC, September 25, 2013.
     Judge Brian J. Davis,
     Nassau County Courthouse,
     Fernandina Beach, FL.
       Dear Judge Davis: I write to follow up on your September 
     12th letter to Senators Nelson and Rubio, copying me and 
     Chairman Leahy, regarding concerns with your record Members 
     of the Senate Judiciary Committee, including me, raised last 
     Congress.
       As you alluded in your letter, during your hearing last 
     Congress, Senator Lee asked you a number of questions 
     regarding various remarks and speeches you made throughout 
     your career. After carefully reviewing the answers you gave 
     during the hearing, I concluded your responses lacked the 
     breadth and clarity I had hoped you would provide when 
     afforded the opportunity. For instance, you conceded that 
     some comments were ``inappropriate,'' but then stated ``they 
     were inappropriate for the reason that an impression could be 
     gotten from them that somehow the court maintained a racial 
     prejudice.'' That response troubled me because it did not 
     appear to fully recognize the reason some find those comments 
     concerning. Specifically, the comments appeared quite plainly 
     to assign a racial motivation to those who opposed particular 
     nominees on purely policy grounds.
       Consequently, following your hearing I sent you a number of 
     follow up questions for the record. Again, I was hopeful to 
     receive some clarity regarding those comments. But after 
     carefully reviewing your responses, I reluctantly reached the 
     conclusion that you still did not fully appreciate why some 
     viewed your comments as inappropriate. For instance, I asked 
     about your comments regarding President Clinton's nomination 
     of Dr. Henry Foster's nomination to be surgeon general. But 
     rather than concede what appears to be apparent by the words 
     you used, you answered instead that the comments were 
     inappropriate because they ``could be interpreted'' in a 
     particular way, and therefore that you lacked impartiality. 
     In my view, your answers to several other questions lacked 
     clarity in a similar fashion. For these reasons, among 
     several others, reluctantly I opposed your nomination last 
     Congress.
       With this background, I received your letter of September 
     12th, 2013. In your letter you wrote, without qualification, 
     ``I believe that several of the statements I made in the past 
     were inappropriate and improper.'' You went on to write, ``I 
     apologize for any inappropriate statements and deeply 
     recognize the harm that they could cause if they gave the 
     misimpression that I am anything other than impartial or that 
     I maintain any bias or prejudice.'' I note that these two 
     statements represent a step that you did not appear willing 
     to take last Congress. In my view, this demonstrates both 
     courage and humility. Thank you for that letter.
       As your nomination is now again pending before the 
     Committee, I write to seek one further clarification. As I 
     noted, you wrote in your recent letter that you apologize for 
     ``any inappropriate statements,'' but you did not specify the 
     statements to which you referred. I want to confirm that you 
     are referring to your comments regarding Dr. Henry

[[Page S9080]]

     Foster, Dr. Joycelyn Elders, and Justice Thomas.
       Thank you in advance for your prompt reply.
           Sincerely.

                                          Charles E. Grassley,

                                                   Ranking Member,
     U.S. Senate Committee on the Judiciary.
                                  ____

                                                    Circuit Court,


                                               Fourth Judicial

                                           Circuit of Florida,

                         Fernandina Beach, FL, September 26, 2013.
     Senator Charles E. Grassley,
     Ranking Member, U.S. Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Senator Grassley: Thank you for your letter of 
     September 25, 2013, and the opportunity to further clarify my 
     views.
       I understand your concerns, and please know that my 
     appreciation of the inappropriateness of statements I have 
     made in speeches include those referenced in your letter 
     regarding Dr. Foster, Dr. Elders and Justice Thomas.
       Thank you for your continued consideration of my 
     nomination.
           Sincerely,
                                                   Brian J. Davis.