[Congressional Record (Bound Edition), Volume 148 (2002), Part 3]
[Senate]
[Pages 3328-3330]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF DAVID C. BURY, OF ARIZONA, TO BE UNITED STATES DISTRICT 
                   JUDGE FOR THE DISTRICT OF ARIZONA

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now go into executive session and proceed to the 
consideration of Executive Calendar No. 704. The clerk will state the 
nomination.
  The legislative clerk read the nomination of David C. Bury, of 
Arizona, to be United States District Judge.
  Mr. LEAHY. Mr. President, today, the Senate is voting on the 41st 
judicial nominee to be confirmed since last July when the Senate 
Judiciary Committee reorganized after the Democrats became the majority 
party in the Senate. With the confirmation of David C. Bury to the U.S. 
District Court for the District of Arizona, the Senate will have 
resolved 6 judicial emergencies since we returned to session just a few 
short weeks ago and 11 since I became chairman this past summer. As of 
this week, the Senate has confirmed more judges in the last 9 months 
than were confirmed in 4 out of 6 years under Republican leadership. 
The number of judicial confirmations over these past 9 months--41--
exceeds the number of judicial nominees confirmed during all 12 months 
of 2000, 1999, 1997, and 1996.
  During the preceding 6\1/2\ years in which a Republican majority most 
recently controlled the pace of judicial confirmations in the Senate, 
248 judges were confirmed. The larger number, the total judges 
confirmed during President Clinton's two terms, includes 2 years in 
which a Democratic majority proceeded to confirm 129 additional judges 
in 1993 and 1994. During the 6\1/2\ years of Republican control of the 
Senate, judicial confirmations averaged 38 per year--a pace of 
consideration and confirmation that has already been exceeded under 
Democratic leadership over these past 9 months. The Republican majority 
did not proceed on any of the judicial nominations resent to the Senate 
in January by President Clinton or those initially sent to the Senate 
in May by President Bush.
  In the past 9 months, we have had more hearings, for more nominees, 
and had more confirmations than the Republican leadership did for 
President Clinton's nominees during the first 9 months of 1995. In each 
area--hearings, number of nominees given hearings, and number of 
nominees confirmed--the Judiciary Committee has exceeded the comparable 
period when Republicans were in power. And 1995 was one of their most 
productive years. Beginning in 1996, the Republican majority really 
began stalling the judicial confirmation process. In the 1996 session, 
only 17 judges were confirmed all year. Judge Bury will be the 13th 
judge confirmed since January 24 this year, and it is only March.
  Under Democratic leadership, we have reformed the process and 
practices used in the past to deny Committee consideration of judicial 
nominees. Almost 60 judicial nominees never received a hearing by the 
Senate Judiciary Committee or received a hearing but were never voted 
on by the Committee. We are holding more hearings for more nominees 
than in the recent past. We have moved away from the anonymous holds 
that so dominated the process from 1996 through 2000. We have made home 
State Senators' blue slips public for the first time.
  I do not mean by my comments to appear critical of Senator Hatch. 
Many times during the 6\1/2\ years he chaired the Judiciary Committee, 
I observed that were the matter left up to us, we would have made more 
progress on more judicial nominees. I thanked him during those years 
for his efforts. I

[[Page 3329]]

know that he would have liked to have been able to do more and not have 
to leave so many vacancies and so many nominees without action.
  The speedy confirmation of David Bury to the District Court for 
Arizona illustrates the effect of the reforms to the process that the 
Democratic leadership has spearheaded, despite the poor treatment of 
too many Democratic nominees through the practice of anonymous holds 
and other obstructionist tactics employed by some in the preceding 6 
years.
  David Bury will be filling a judicial emergency vacancy seat that has 
been vacant since 2000, when the new position was created by public law 
to handle the greater number of criminal and immigration cases in the 
courts along our Southwest Border. I have worked with the Senators from 
Arizona, Texas and other Senators from the Southwestern Border States 
to fill these new judgeships. It is a shame, however, that the Congress 
did not see fit to create the judgeships needed so desperately in the 
Southern District of California. Perhaps Senator Feinstein will succeed 
in doing that this year. I know that I am supporting her efforts and 
will be trying to help her finally achieve that goal.
  David Bury is the second Federal judge confirmed from Arizona in a 
little more than a month and the third since the change in majority. On 
February 26th, the Senate confirmed by a vote of 98 to zero Judge Cindy 
Jorgenson and last December we confirmed Judge Frederick Martone.
  There are some who insist that circuit court nominees are being 
treated unfairly. Nothing could be farther from the truth. By having 
fair hearings and voting on nominees, up or down, the Judiciary 
Committee is proceeding as it should. Unlike the many judicial nominees 
who did not get hearings or were accorded a hearing but were never 
allowed to be considered by the Committee, we are trying to accord 
nominees both a hearing and a fair up or down vote.
  Until Judge Edith Clement received a hearing on her nomination to the 
5th Circuit last year, there had been no hearings on 5th Circuit 
nominees since 1994 and no confirmations since 1995. Last year we were 
able to confirm the first new judge to the 5th Circuit in 6 years and 
help end the Circuit emergency that had been declared in 1999 by the 
Chief Judge.
  Jorge Rangel was nominated to the 5th Circuit in 1997 and never 
received a hearing on his nomination or a vote by the Committee. His 
nomination to a Texas seat on the Fifth Circuit languished without 
action for 15 months.
  Enrique Moreno was first nominated to the 5th Circuit in 1999 and 
never received a hearing on his nomination or a vote by the Committee. 
His nomination to a Texas seat on the Fifth Circuit also languished 
without action for 17 months.
  H. Alston Johnson was also first nominated to the 5th Circuit in 1999 
and never received a hearing on his nomination or a vote by the 
Committee in 1999, 2000, or the beginning of 2001. His nomination to a 
Louisiana seat on the Fifth Circuit also languished without action for 
23 months.
  In contrast, under the Democrat-led Senate, President Bush's nominees 
to the 5th Circuit, Judge Edith Brown Clement and Judge Charles 
Pickering, were treated fairly. Both received hearings less than 6 
months after their nominations. In fact, Judge Clement was the first 
Fifth Circuit nominee to receive a hearing since 1994, when Senator 
Biden chaired the Senate Judiciary Committee. She is the first person 
to be confirmed to that Circuit since 1995.
  In contrast to recent, past practices, we are moving expeditiously to 
consider and confirm David Bury, who was nominated in September, 
received his ABA peer review in November, participated in a hearing in 
February, was reported by the Committee in March and is today being 
confirmed.
  This nominee has the support of both Senators from his home State and 
appears to be the type of qualified, consensus nominee that the Senate 
has been confirming to help fill the vacancies on our federal courts. I 
congratulate Mr. Bury and his family on his confirmation today.
  Mr. HATCH. Mr. President, I rise to support the confirmation of David 
C. Bury to be U.S. District Judge for the District of Arizona.
  I have had the pleasure of reviewing Mr. Bury's distinguished legal 
career, and I have come to the opinion that he is a fine lawyer who 
will add a great deal to the Federal bench in Arizona.
  David Bury was born and raised in Tulsa, OK. After graduating from 
Oklahoma State University in 1964, he attended the University of 
Arizona College of Law, earning his Juris Doctorate in 1967.
  Mr. Bury has been a trial lawyer in private practice for over 34 
years, and he has experience in almost every area of civil trial 
practice--primarily in the area of insurance defense. His clients have 
included private citizens, large corporation, lawyers, doctors, 
insurance companies, Pima County, and the State of Arizona. Mr. Bury 
has defended medical and legal malpractice cases, products liability 
and construction site cases, governmental entities in false arrest 
cases, assault and battery cases, United States Code section 1983 
actions, and road design and construction cases. He has defended school 
teachers and school districts. Additionally, he has represented 
individuals in personal injury and employment cases.
  Mr. Bury is a Fellow of the American College of Trial Lawyers and an 
Advocate in the American Board of Trial Advocates. He is also listed in 
the ``Best Lawyers in America.'' He has served as a lawyer 
representative to the Ninth Circuit Judicial Conference, on the 
Commission on Trial Court Appointments for Pima County, and on the 
disciplinary committee for the State Bar of Arizona. In addition, Mr. 
Bury often serves as an arbitrator and has been a guest lecturer for 
legal and medical organizations throughout his career.
  I have every confidence that David Bury will serve with distinction 
on the Federal District Court for the District of Arizona.
  Thank you, Mr. President.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The question is, Will the Senate 
advise and consent to the nomination of David C. Bury, of Arizona, to 
be United States District Judge for the District of Arizona? On this 
question, the yeas and nays have been ordered. The clerk will call the 
roll.
  The bill clerk called the roll.
  Mr. REID. I announce that the Senator from Arkansas (Mrs. Lincoln) 
and the Senator from Georgia (Mr. Miller) are necessarily absent.
  Mr. NICKLES. I announce that the Senator from Kansas (Mr. Brownback), 
the Senator from Montana (Mr. Burns), the Senator from Idaho (Mr. 
Craig), the Senator from Tennessee (Mr. Frist), the Senator from North 
Carolina (Mr. Helms), the Senator from Arizona (Mr. McCain), the 
Senator from Kentucky (Mr. McConnell), and the Senator from Texas (Mrs. 
Hutchison) are necessarily absent.
  I further announce that if present and voting the Senator from 
Montana (Mr. Burns) would vote ``yea''.
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 90, nays 0, as follows:

                       [Rollcall Vote No. 51 Ex.]

                                YEAS--90

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Bunning
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchinson
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow

[[Page 3330]]


     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--10

     Brownback
     Burns
     Craig
     Frist
     Helms
     Hutchison
     Lincoln
     McCain
     McConnell
     Miller
  The nomination was confirmed.
  Mr. REID. Madam President, I move to reconsider the vote and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.
 Mr. McCAIN. Madam President, due to my absence, I was unable 
to vote today on the confirmation of David C. Bury as a judge for the 
United States District Court for the District of Arizona, Tucson 
Division.
  Had I been present today, I would have voted ``yea'' on Mr. Bury's 
nomination with whole-hearted enthusiasm for a man of outstanding 
character and tremendous legal talent.
  Without question, Mr. Bury is well-qualified for this position. His 
reputation precedes him. In the State of Arizona, he has always been a 
well-respected and highly competent trial attorney. His unblemished 34 
years in the practice of law have proven his commitment to the legal 
profession. Not only does he bring to the Federal bench extensive 
experience in civil litigation, he will bring to the bench the 
requisite qualities of patience, fairness and the highest ethical 
standards. In short, Mr. Bury will be an outstanding Federal judge for 
our great state of Arizona.
  I congratulate him, his wife Debby and his three children on his 
nomination to the Federal court. They are undoubtedly proud of him not 
only for this high honor, but also for the rest of his professional 
accomplishments and his personal commitment to them.
  I am very confident that Mr. Bury will be a top-notch public servant 
who will bring to the Federal judiciary the highest level of 
professionalism, leadership and dedication. He will make the people in 
Arizona proud. And for his public service, I thank him.

                          ____________________