[Congressional Record (Bound Edition), Volume 154 (2008), Part 7]
[Senate]
[Pages 9730-9732]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF MICHAEL G. McGINN TO BE UNITED STATES MARSHAL FOR THE 
DISTRICT OF MINNESOTA, RALPH E. MARTINEZ TO BE A MEMBER OF THE FOREIGN 
 CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES, AND G. STEVEN AGEE 
  TO BE UNITED STATES CIRCUIT JUDGE FOR THE FOURTH DISTRICT--Continued

  The PRESIDING OFFICER. Under the previous order, there will be 15 
minutes equally divided and controlled between the senior Senator from 
Virginia, Mr. Warner, and the junior Senator from Virginia, Mr. Webb, 
or their designees.
  The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I will take the time allotted on the 
Democratic side to Senator Webb.
  Mr. President, we have heard the sad news about our friend Ted 
Kennedy. Those of us who stood by his side know that there is no better 
ally and no more determined fighter. Now, as Ted Kennedy faces another 
great fight, we know he will bring the same courage and determination 
to the battle. We also know Ted has spent his entire life caring for 
those in need. It is time for those of us who love Ted and his family 
to care for them and join in prayer to give them strength.
  Mr. President, at 2:30 we will consider the nomination of Steven Agee 
of Virginia to serve on the U.S. Court of Appeals for the Fourth 
Circuit. It is a lifetime appointment. He is a consensus nominee. Both 
Senators Warner and Webb support him. Of the 11 appellate court 
nominees pending before the Senate, only 6 can claim the same home 
State Senator support. That is one of the reasons some of them have 
been delayed. If we work more toward bipartisan consensus, more 
nominations would be approved.
  Also, it is difficult to hear criticisms that these nominations have 
been delayed. The Republican minority has delayed so many bills and so 
many matters in this Congress, they have set a new record for 
filibusters and delay. That is a fact.
  The Senate has confirmed 303 judges for lifetime appointments during 
the Bush Presidency. President Bush has had 86 percent of his judicial 
nominees confirmed; President Clinton, only 75 percent. When it comes 
to circuit court nominees, President Bush has even had a higher 
confirmation rate than President Clinton--71 percent to 57 percent. 
There has been no mistreatment here when it comes to the nominees sent 
to us by the Bush White House. Under President Clinton, 61 judicial 
nominees were not even given the courtesy of a hearing and a vote.
  One of the problems that faces the analysis on the Republican side is 
that there have been fewer judicial vacancies. President Clinton had 
377 judges confirmed; President Reagan, 382, but at the present time, 
with the 303 already confirmed, if every vacancy were filled--every one 
of them--then President Bush would have fewer than President Clinton or 
President Reagan had confirmed. In other words, the fact that President 
Bush will have appointed fewer judges than his predecessors is a 
function of math, not political mischief.
  Another complaint we have heard from my Republican colleagues is that 
we are moving on Sixth Circuit nominee Helene White ahead of three 
circuit court nominees whom they would prefer. Senator Leahy, chairman 
of the Judiciary Committee, and the majority leader have already 
addressed this point, but I think the record should be abundantly 
clear. Helene White was originally nominated in January 1997 and was 
pending as a Clinton nominee for 1,532 days--over 4 years--until March 
2001. You can even argue that she has been pending for over 11 years. 
So in terms of a place in line, she certainly deserves consideration 
for her patience.
  I hope these battles will be resolved and resolved soon, but most 
importantly I hope they are resolved with good men and women who come 
to these lifetime appointments with the appropriate background and 
appropriate temperament to serve this Nation well. I hope the Senate 
will join on a bipartisan basis in approving this afternoon's pending 
nomination.
  I reserve the remainder of my time.
  Mr. WEBB. Mr. President, today it is my distinct pleasure to offer my 
support--along with my colleague, Senator Warner--for the nomination of 
Justice G. Steven Agee to be a judge on the U.S. Court of Appeals for 
the Fourth Circuit.
  Justice Agee is regarded as a jurist of superior intellect and 
judicial temperament who exhibits the highest degree of integrity and 
professionalism. After graduating law school, Justice Agee began his 
legal career as an associate with Martin, Hopkins & Lemon, 1977 to 
1979. In 1979, Justice Agee joined Rocovich, Dechow, Parvin & Wilson, 
P.C., where he did additional work as an associate. From 1980 to 2000 
Justice Agee was a shareholder and director with Osterhoudt, Ferguson, 
Natt, Aheron & Agee. In 2001, Justice Agee began serving as a judge on 
the Court of Appeals of Virginia and has been a justice on the Supreme 
Court of Virginia since 2003.
  Justice Agee has unparalleled support from the entire legal community 
in the Commonwealth of Virginia. Justice Agee served for 12 years in 
the Virginia House of Delegates--1982 to 1994--and served as an 
appointed member of the Virginia Criminal Sentencing Commission, 1997 
to 2000. The ABA Standing Committee on the Federal Judiciary has rated 
Justice Agee ``well qualified'' to sit on the U.S. Court of Appeals for 
the Fourth Circuit. He is active in myriad community and civic 
organizations. Justice Agee received his B.A., magna cum laude, from 
Bridgewater College in 1974, his J.D. from the University of Virginia 
School of Law in 1977, and his L.L.M. in Taxation from New York 
University School of Law in 1978. He is married to Nancy Howell Agee, 
the chief operating officer and executive vice president of Carilion 
Clinic, and together they have one child.
  I am acutely aware of the vitally important role that the 
Constitution assigns to the Senate in the advise and consent process 
related to Federal judges. Judgeships on our Nation's Circuit Courts of 
Appeal are critical to the American system of jurisprudence. Senator 
Warner and I undertook a careful and deliberative process to find the 
most qualified nominees. Our collaborative process involved a thorough 
records review and rigorous interviews. We are of the opinion that 
Justice Agee not only met our high standards for selection but exceeded 
them. Justice Agee was on the joint list of recommended nominees that 
we submitted to President Bush last year. We are pleased that President 
Bush has chosen to respect our diligent bipartisan work.
  I want to thank you for the opportunity to make these remarks about 
Justice Agee today and for the expeditious way the Senate has moved his 
nomination through the process during the 110th Congress. Again, it is 
with pride that I join Senator Warner in commending Justice Agee to 
each of my colleagues in the Senate, and I ask my fellow Senators to 
vote to confirm his nomination to the U.S. Court of Appeals for the 
Fourth Circuit.
  The PRESIDING OFFICER. Who seeks recognition? The Senator from 
Vermont is recognized.
  Mr. LEAHY. Mr. President, how much time remains that is controlled by 
the Senator from Vermont?
  The PRESIDING OFFICER. The Senator has 3 minutes 40 seconds 
remaining.
  Mr. LEAHY. Mr. President, I yield myself 30 seconds.
  I would note, in all these numbers, we Democrats have worked very 
hard to erase what was done by the Republicans when there was a 
Democratic President. They pocket filibustered over 60 of President 
Clinton's nominees. They let one go through--actually voted for him in 
committee, one of

[[Page 9731]]

the most distinguished African-American jurists in this country. Then, 
in lockstep, every single Republican voted against him--a humiliation 
for him. He went on to become chief justice of the Missouri Supreme 
Court.
  We have not done that.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. WARNER. Mr. President, I rise to express my strong support for an 
extraordinary nominee to the federal bench. I welcome the opportunity 
today to vote in favor of confirmation for the Honorable G. Steven Agee 
to a seat on the U.S. Court of Appeals for the Fourth Circuit.
  Justice Agee currently serves with distinction on the Supreme Court 
of Virginia. It was my privilege to introduce him to the Senate 
Judiciary Committee on May 1, and, as I expressed to the committee, 
Justice Agee's qualifications to serve on the Fourth Circuit are as 
impressive as any circuit court nominee for whom I have voted in my 30 
years in the Senate.
  Further, I am pleased to note that the American Bar Association 
concurs with my assessment of this nominee. The ABA gave Justice Agee 
its highest recommendation: unanimously well-qualified.
  Justice Agee's nomination is a product of a collaborative process 
between the administration and Virginia's two U.S. Senators. In early 
2007, Senator Webb and I personally, extensively interviewed more than 
a dozen individuals to serve on the Fourth Circuit, and ultimately, in 
June 2007, we submitted to the President a list of five individuals 
that both of us would strongly support for confirmation. Justice Agee 
was one of those five individuals.
  A magna cum laude graduate of Bridgewater College in Virginia, Steve 
Agee subsequently earned his law degree from the University of Virginia 
School of Law and an L.L.M. in Taxation from New York University. For 
the past 30 years, he has been engaged in the Virginia legal community 
as either a practicing lawyer or as a jurist.
  In addition to his remarkable legal career, Justice Agee has been 
actively engaged in public service through the military, elected 
office, the state bench, and other civic and volunteer causes.
  For 11 years during his career in private practice, he served in the 
U.S. Army Reserve, Judge Advocate General Corps, completing his service 
at the rank of major in 1997.
  From 1982 to 1994, Steve Agee was a member of the Virginia House of 
Delegates, representing the city of Salem; the Counties of Craig, 
Montgomery, and Roanoke; and the towns of Christiansburg, New Castle, 
and Vinton to Virginia's General Assembly.
  In 2000, the Virginia General Assembly unanimously confirmed Steve 
Agee to the Virginia Court of Appeals. In January 2003, the General 
Assembly once again unanimously confirmed Judge Agee--this time to one 
of seven seats on the Virginia Supreme Court.
  For many years, he has been a member of the Board of Trustees for 
Bridgewater College; a member of the Board of Directors for the Bradley 
Free Clinic of Roanoke; a member of the Salem Rotary Club; and he has 
also contributed his time to the Western Virginia Foundation for the 
Arts and Sciences and the Governor's Regional Economic Development 
Council for the New Century Region.
  Justice Agee is obviously a very accomplished American. I appreciate 
the Senate Judiciary Committee's prompt consideration of this nominee, 
as the seat to which he has been nominated is designated as a judicial 
emergency by the Administrative Office of the United States Courts.
  I am confident that Justice Steve Agee will serve on the Fourth 
Circuit with distinction, and I urge my colleagues to join me in voting 
in favor of his confirmation today.
  I see my colleague. I would like to add just one more word, if I may.
  We just received the news with regard to a dearly beloved Member of 
this Chamber, Senator Kennedy of Massachusetts. It has been my 
privilege to know the Kennedy family for many years. In 1949, when I 
went to the University of Virginia Law School, his brother Bobby was 
there. I first met Teddy Kennedy in conjunction with the things we did 
in those days at Virginia Law School. We have been very close friends 
all these ensuing years.
  I send forth my prayers for his recovery. You know, as Churchill once 
said in the darkest days of the Battle of Britain: Never, never, never 
give in. Those are the words that I know to be in Ted Kennedy's mind 
now. He will take on this challenge. How many times have we been 
privileged, in this Chamber, to listen to our colleague speak from that 
back row? He really doesn't need the microphone; his voice resonates to 
the rafters in this Chamber. That great strength that propels his voice 
to reverberate throughout the Senate Chamber will be the same strength 
that he will draw upon again in his recovery, for which we all pray.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, just before entering the Chamber, I heard 
the devastating news about Senator Kennedy's diagnosis with a malignant 
brain tumor. I have been there. A few years back, I was diagnosed with 
a malignant brain tumor and given 3 to 6 weeks to live.
  I note in the press release that it says:

       How well patients fare depends on what specific tumor type 
     is determined by further testing.

  The diagnosis for me, for a malignant brain tumor, turned out to be 
incorrect.
  I note Senator Kennedy will be receiving chemotherapy and radiation. 
I know something about chemotherapy myself. I am in the middle of it 
right now for Hodgkin's.
  But Senator Kennedy is a real fighter. We all know that. I am betting 
on Senator Kennedy. He has been such a champion on so many causes--
civil rights, health, education, labor reform, and the judiciary, where 
he served as chairman of the Senate Judiciary Committee with great 
distinction.
  It would be my hope that what has happened today would provide some 
motivation for both parties to find a bipartisan way to cross the aisle 
and to stop the bickering which has characterized the confirmation 
process for so many years. Senator Kennedy has been an example, a 
shining example. He has crossed the aisle and sponsored so many 
legislative enactments. I have had the opportunity to cosponsor the 
Kennedy-Specter bill, for example, on hate crimes and the civil rights 
bill that has been so often cited.
  I have said all I had to say about the current matter. I spoke at 
length yesterday and again today on Justice Agee. There is no doubt he 
is well qualified--the other two nominees are as well.
  When you cite the statistics, you can cite them both ways. You can 
cite them in all directions. When you talk about fault, it is equal; 
the blame is on both sides. The conduct of both parties in this Chamber 
has been disgraceful in the last 20 years--both sides, first one side 
and then the other, and each time it exacerbates.
  I worked very closely with Senator Leahy over the years, and we have 
had some real bipartisan agreements. My hope is that he and I can get 
together again and find a way to solve this partisan morass and to 
establish a timetable that once a nomination comes in, so many days 
later, there is a hearing; so many days later, it comes out of 
committee; and so many days later, it comes to the floor.
  In the middle of the battle over this so-called deal, which I have 
spoken on at length yesterday and today, the news of what has happened 
with Senator Kennedy perhaps will give us some motivation to follow 
Senator Kennedy's lead.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WEBB. Mr. President, I rise principally to associate myself with 
the remarks of Senator Warner, our senior Senator from Virginia, and to 
recommend to this body the qualifications of Steven Agee for this 
position and to emphasize that I believe Senator Warner and I have been 
able to accomplish some things in the last year and a half

[[Page 9732]]

that I hope we can sort of spread out in a broader way to the body 
here. We found the issues on which we can work together in terms of 
governing this country in a responsible way. The judicial nominees are 
one of them. We have worked not only closely together, we worked in the 
same room, interviewing people who would be potential judges, 
recommending them jointly to the White House, and supporting them 
thereafter.
  I highly recommend this candidate.
  I also would like to take a moment and associate myself with the 
remarks of others who expressed their concern about Senator Kennedy. He 
is truly a lion of the Senate.
  Incidentally, I wish to also express my profound respect for the 
senior Senator from Pennsylvania for the way he has addressed his own 
health challenges over the years and the example he has set for all of 
us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, may I say to my distinguished colleague, 
the junior Senator from Virginia, and my partner, I thank him so much 
for the way in which, from the moment he has arrived at the Senate, we 
have worked together on behalf of the interests of our Nation and our 
State. I think this is a very clear manifestation of how two Senators 
of different parties can come together and find that candidate they 
judge to be eminently qualified to serve--not only the State of 
Virginia but the other States served by the Fourth Circuit. As we know, 
circuit court opinions are binding on a wide realm of cases throughout 
the Nation.
  I thank my colleague from Virginia for his participation with me as a 
full partner in bringing this nomination to the floor.
  Mr. WEBB. I thank the Senator. I thank him also for the leadership 
and example he has set for this body over the 30 years.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. One and one half minute remains for Senators 
to speak.
  Mr. LEAHY. Mr. President, I sat here, discussing with the 
distinguished ranking member, Senator Specter, health matters. Senator 
Specter is a longtime friend. He has gone through some terrible health 
issues. We were discussing that. I will not go further into that 
because it was a private conversation, except that he knows how much I 
pray for his well-being and his continued health.
  I would also say I thank Senator Warner and Senator Durbin and 
Senator Specter and others for what they said about Senator Kennedy.
  We in New England especially feel extraordinarily close to Senator 
Kennedy. I have known him for more than a third of a century. We have 
all heard bad news on the Senate floor. This is one of the most 
difficult things I have heard in my 34 years here. I said to the people 
in my office, this is one of the worst days I have spent in the Senate, 
to hear this news.
  Marcella and I will keep not only Senator Kennedy but his wonderful 
family in our prayers and will continue to pray for a full recovery.
  The PRESIDING OFFICER. There is 22 seconds remaining under the 
control of the minority.
  Mr. GREGG. I yield back the time and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.
  The question is, Will the Senate advise and consent to the nomination 
of G. Steven Agee, of Virginia, to be U.S. circuit judge for the Fourth 
Circuit?
  The clerk will call the roll.
  The assistant journal clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Massachusetts (Mr. Kennedy), and the Senator from 
Illinois (Mr. Obama) are necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 96, nays 0, as follows:

                      [Rollcall Vote No. 136 Ex.]

                                YEAS--96

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCaskill
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--4

     Clinton
     Kennedy
     McCain
     Obama
  The nomination was confirmed.


         Nominations of Michael G. McGinn and Ralph E. Martinez

  The PRESIDING OFFICER. Under the previous order, Calendar Nos. 537 
and 538 are confirmed, and the motion to reconsider is considered made 
and laid upon the table.
  Under the previous order, the President will be immediately notified 
of the Senate's action.

                          ____________________