[Congressional Record (Bound Edition), Volume 154 (2008), Part 9]
[Senate]
[Pages 11920-11924]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF MARK STEVEN DAVIS TO BE UNITED STATES DISTRICT JUDGE FOR 
                    THE EASTERN DISTRICT OF VIRGINIA

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The legislative clerk read the nomination of Mark Steven Davis, of 
Virginia, to be United States district judge for the Eastern District 
of Virginia.
  The ACTING PRESIDENT pro tempore. We now have 10 minutes of debate 
equally divided between the chairman and the ranking member. Who yields 
time?
  If no one yields time, time will be charged equally to both sides.
  The Senator from Missouri.
  Mr. BOND. Mr. President, may I ask for 1 minute from the ranking 
member.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BOND. Mr. President, my thanks to the committee leaders for 
bringing forward the nominations to the Senate of Judge Greg Kays and 
Stephen Limbaugh to be Federal district court judges for the Western 
and Eastern District Courts of Missouri. Both Judge Kays and Judge 
Limbaugh are outstanding nominees for the Federal bench. They share 
bipartisan support, have fine legal minds, long records of public 
service, and represent the values and character of my Missouri 
constituents.
  Both men's modesty matches the modest size of their Midwestern 
hometowns. But as we have seen so many times in our history, great men, 
men of learning, men of intellect and excellence, come from modest 
places.
  One should not doubt this to be the case. Values of fairness, 
service, kindness, community, learning, self-reliance, and personal 
responsibility are those that we value in our constituents, in our 
small-town communities, and we should value in our judges. I think this 
confirmation process has succeeded in producing two such men.
  I thank the Chair, I thank my ranking member, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. Mr. President, I have spoken to the chairman of the 
Judiciary Committee and to the Republican leader. We will enter a 
formal unanimous consent for the Record at a subsequent time, but it 
appears at this time we will have a vote on one of the remaining two 
judges at 3:30, and the Judiciary Committee chair, Senator Leahy, has 
agreed we will not have to vote on the second one. So there will be one 
vote on or about 3:30 this afternoon.
  Mr. LEAHY. Mr. President, will the Senator yield on the leader's 
time?
  I wanted to have a rollcall on this one, and do the other two at 
whatever time the leader prefers by voice vote.
  Mr. REID. I thank the Senator very much. That is wonderful. We can do 
those before lunch, then.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent to have printed 
in the Record the resumes of these three candidates. They were voted 
out unanimously by voice vote of the committee, and I think their 
confirmation is assured.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Mark Steven Davis


   United States District Judge for the Eastern District of Virginia

       Birth: 1962, Portsmouth, Virginia.
       Legal Residence: Portsmouth, Virginia.
       Education: Longwood University, 1980-1982; no degree; 
     University of Virginia, 1982-1984; B.A., May 1984; Washington 
     and Lee University School of Law; J.D., May 1988.
       Primary Employment:
       Staff Assistant, U.S. Senator John W. Warner, 1984-1985.
       Law Clerk to Hon. John A. MacKenzie, U.S. District Court, 
     Eastern District of Virginia, 1988-1989.
       Law Firm of McGuire Woods LLP: Associate, 1989-1996; 
     Partner, 1996-1998.
       Partner, Law Firm of Carr & Porter LLC (no longer in 
     existence), 1998-2003.
       Judge, Third Judicial Circuit of Virginia (Portsmouth 
     Circuit Court), 2003-Present; Chief Judge, July 2006-Present.
       Selected Activities:
       Virginia State Bar, 1988-Present: Litigation Section Young 
     Lawyers Committee, 1992-1996.
       Board of Visitors, Regent University School of Law, 2004-
     Present.
       American Bar Association, 1989-1993.
       Federal Bar Association, 1990-1998.
       Virginia Bar Association, 1989-Present.
       James Kent American Inn of Court, 2005-Present: Pupilage 
     Team Leader, 2007.
       Chesapeake Bay Bridge and Tunnel Commission: Commissioner, 
     1999-2003; Secretary/Treasurer, 2000-2003.
       Virginia International Terminals, Inc.: Board of Directors, 
     2000-2003; Secretary and Executive Committee, 2002-2003; 
     Audit Committee, 2000-2003.
       Recipient, Top 40 Under 40, Dolan's Virginia Business 
     Observer Newspaper, 2001.
       Recipient, Legal Elite Listing, Virginia Business Magazine, 
     2002.
       ABA Rating: Unanimous ``Well Qualified.''

                           David Gregory Kays


   United States District Judge for the Western District of Missouri

       Birth: 1962, Kansas City, Missouri.
       Legal Residence: Missouri.
       Education: No degree, Drury University, 1981-1982; B.S., 
     Southwest Missouri State University, 1985; J.D., University 
     of Arkansas School of Law, 1988.
       Primary Employment: Attorney, Miller and Hutson Law Firm, 
     1988-1989. Assistant Public Defender, Office of the Special 
     Public Defender, 8/1989-12/1989. Prosecutor, Laclede County 
     Prosecuting Attorney's Office: Assistant Prosecuting 
     Attorney, 1988-1989; Chief Assistant Prosecuting Attorney, 
     1989-1991; Prosecuting Attorney, 1991-1995. City Attorney, 
     Lebanon, Missouri, 1992-1994. Judge, State of Missouri: 
     Associate Circuit Judge, Laclede County Circuit Court, 1995-
     2004; Presiding Circuit Court Judge, 26th Judicial District, 
     2005-present.
       Selected Activities: Board Chairman, First Christian 
     Church, 2007-present; Member, Missouri Task Force on 
     Alternative Sentencing, 2006-2007; Certificate Recipient, 
     National Judicial College, 2007; Recipient, Supreme Court of 
     Missouri Permancy Awards, 2006 and 2007; Adjunct Instructor, 
     Drury University, 1992-2004; Member, Laclede County Bar 
     Association: President, 1992; Member, Missouri Bar 
     Association.
       ABA Rating: Substantial majority ``Qualified''/ Minority 
     ``Not Qualified.''

                    Stephen Nathaniel Limbaugh, Jr.


   united states district judge for the eastern district of missouri

       Birth: 1952; Cape Girardeau, Missouri.
       Legal Residence: Cape Girardeau, Missouri.
       Education: B.A., Southern Methodist University, December 
     1973; J.D., Southern Methodist University School of Law, 
     December 1976; Masters of Law in the Judicial Process, 
     University of Virginia School of Law, May 1998.
       Primary Employment: Associate, Limbaugh, Limbaugh & 
     Russell, 1977-1978; Assistant Prosecuting Attorney, Office of 
     Prosecuting Attorney, Jackson, Missouri, 1978; Prosecuting 
     Attorney, Office of Prosecuting Attorney, Jackson, Missouri, 
     1979-1982; Shareholder/Partner, Limbaugh, Limbaugh, Russell & 
     Syler, P.C., 1983-1987; Circuit Judge, 32nd Judicial Circuit 
     of Missouri, 1987-1992; Supreme Court Judge, Supreme Court of 
     Missouri, 1992-Present: Chief Justice, 2001-2003.
       Selected Activities: Missouri Bar, 1977-Present: Fellow, 
     Missouri Bar Foundation, 1997-Present (Board member, 2001-
     2003). American Bar Association, 1977-Present: Life Fellow, 
     American Bar Foundation; Litigation Section, 1985-Present; 
     Judicial Administration Division, 1987-Present. The 
     Federalist Society, 1993-Present. Judicial Conference of 
     Missouri, 1987-Present: Legislative Steering Committee, 1989-
     1991; Executive Council, 1999-2003; Presiding Officer, 2001-
     2003. Supreme Court of Missouri Committees: Chair, Commission 
     on Judicial Dept. Education, 1999-2001, 2005-Present. 
     Appellate Judicial Commission for the Missouri Nonpartisan 
     Court Plan: Chair, 2001-2003. State Historical Society of 
     Missouri: Board of Trustees, 2005-Present; First Vice 
     President, 2007-Present. Life Regent, National Eagle Scout 
     Association. Political Advocacy and Legislative Achievement 
     Award, Adoption and Foster Care Coalition of Missouri, 2001. 
     Distinguished Alumnus Award for Judicial Service, SMU Dedman 
     School of Law, 2007.

[[Page 11921]]

       ABA Rating: Unanimous ``Well Qualified.''

  Mr. WARNER. Mr. President, I rise today in support of an outstanding 
Virginian, the Honorable Mark S. Davis, who has been nominated by the 
President to serve as an article III judge on the U.S. District Court 
for the Eastern District of Virginia. I am pleased to note that Judge 
Davis also enjoys the strong support of my colleague, Senator Webb.
  Judge Davis has been nominated to fill the seat that was vacated by 
Judge T. S. Ellis, III, who has served as an active judge in the 
Eastern District of Virginia for more than 19 years.
  I have had the privilege of knowing Mark Davis for more than two 
decades. He worked as an intern in my office while attending the 
University of Virginia, and then later, in 1984, he began his 
professional career as a staff assistant in my office before he went to 
law school. After earning his J. D. from the Washington & Lee 
University School of Law in 1988, he served as a law clerk for the 
Honorable John MacKenzie on the U.S. District Court for the Eastern 
District of Virginia.
  Subsequent to his clerkship, he entered private legal practice, as a 
litigation attorney on cases before both Federal and State courts in 
several areas, including tort, maritime, and municipal and employment 
law. In 2003, the Virginia General Assembly unanimously confirmed him 
to serve as a judge on the Third Judicial Circuit of Virginia in 
Portsmouth, VA; today, he serves as chief judge of this five-judge 
circuit.
  In my view, Judge Davis is eminently qualified to serve on the U.S. 
District Court for the Eastern District of Virginia. In addition to 
having the support of his home state Senators, he also received the 
highest recommendation of the Virginia State bar and the American Bar 
Association.
  I thank the Judiciary Committee for favorably reporting this 
exemplary nominee to the full Senate, and I urge my colleagues to vote 
to confirm him.
  Mr. WEBB. Mr. President, today it is my distinct pleasure to offer my 
support along with my colleague Senator Warner for the nomination of 
Judge Mark Davis to be a judge on the U.S. District Court for the 
Eastern District of Virginia.
  The career of this nominee is impressive. Judge Davis is regarded as 
a patient, thoughtful individual who exhibits the highest degree of 
ethical conduct and professionalism. After graduating law school, Judge 
Davis began his legal career as a law clerk to Judge John A. MacKenzie 
who served as judge on the U.S. District Court for the Eastern District 
of Virginia, 1988-1989. In 1989, Judge Davis joined McGuire Woods, LLP, 
where he worked as a partner from 1996 until 1998. Judge Davis has also 
worked as partner at Carr & Porter LLC, 1998-2003. Since 2003, Judge 
Davis has served on the Third Judicial Circuit of Virginia, and has 
been the chief judge since 2006.
  The Virginia Bar Association rated Judge Davis as ``highly 
qualified.'' Judge Davis's written opinions reflect his keen intellect, 
and the extent to which he values communicating his reasoning to 
counsel and litigants. Further, Judge Davis is active in myriad 
community and civic organizations. Judge Davis received his B.A. in 
government from the University of Virginia in 1984, and his J.D. from 
Washington and Lee University School of Law in 1988.
  The Constitution assigns a critically important role to the Senate in 
the advice and consent process related to nominations for the Federal 
judiciary. These judgeships are lifetime appointments, and Virginians 
expect me and Senator Warner to take very seriously our constitutional 
duties. It is essential that the nominee be respectful of the 
Constitution, impartial, and balanced toward those appearing before him 
or her.
  In light of these criteria, Senator Warner and I undertook a careful 
and deliberative process to find the most qualified judicial nominees. 
Our collaboration involved a thorough records review and rigorous 
interviews. We are of the opinion that Judge Davis meets these high 
standards. He was on the joint list of recommended judicial nominees 
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, Mr. President, for the opportunity to make these 
remarks about this outstanding Virginian. In particular, I want to 
express my gratitude for the expeditious way the Senate has moved the 
nomination of Judge Davis through the process during the 110th 
Congress. Again, it is with pride that I join Senator Warner in 
commending Judge Mark Davis to each of my colleagues in the Senate; and 
I ask my fellow Senators to vote to confirm his nomination to the U.S. 
District Court for the Eastern District of Virginia.
  Mr. SPECTER. Mr. President, I wish to use the balance of my time to 
talk about the procedures on the Energy bill.
  I spoke yesterday about the problem created by the so-called 
procedure of filling the tree. It is my hope that we will return to the 
Energy bill and we will have an opportunity to offer amendments on the 
bill--the global warming bill, I should specify. Last week, I filed a 
series of amendments, and I hope we will return to the bill and will 
not have the procedure of filling the tree thwart the opportunity for 
Senators to offer amendments.
  As I spoke at some length yesterday, we have devolved in this body 
into a procedure where the trademark of the Senate--that is, where a 
Senator is able to offer virtually any amendment on any matter at any 
time--has been undercut. This has been a practice which has been 
growing but was used not at all in bygone years. Senator Mitchell then 
used it 9 times, Senator Lott matched him with 9, Senator Frist matched 
him with 9, and Senator Reid has now used it 12 times.
  Regrettably, when the tree is filled--an arcane practice not 
understood very broadly--and then cloture is not invoked, people think 
that Republicans are opposed to considering global warming. The fact is 
that some 32 Republicans voted for cloture on the motion to proceed. So 
it is my hope we will have an opportunity to debate this very important 
subject and that there will be procedural steps taken so amendments can 
be offered. The tradition of the Senate in the past has been to have 
legislation offered, to debate, and if people are opposed, to 
filibuster, and to have the issues considered. But we have found in 
modern days that bills involving very important matters, such as the 
Ledbetter Fair Pay Act, Senate bill 1843, got very short shrift indeed. 
So it is my hope we will change the procedures.
  I filed a resolution with the Rules Committee in February of 2007 to 
have a change in the rules, but in the interim I hope we can alter our 
procedures to take up these very important amendments.
  I thank the Chair, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays on the 
nomination.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be.
  The yeas and nays are ordered.
  Mr. LEAHY. Mr. President, today the Senate will confirm three more 
nominations for lifetime appointments to the Federal bench.
  The first nomination we consider is that of Mark Davis of Virginia to 
fill a vacancy in the Eastern District of Virginia, and I commend the 
Virginia Senators on this nomination. After years of controversial 
nominations, Senators Warner and Webb have worked successfully with the 
White House on a series of recent nominations for district and circuit 
court seats, including that of Judge G. Steven Agee of Virginia, who 
was confirmed to a seat on the Fourth Circuit last month.
  I was pleased to accommodate Senator Bond's request that we proceed 
promptly in committee to consider the nominations of David Kays and 
Stephen Limbaugh to vacancies in the Western and Eastern Districts of 
Missouri. Both nominees have the support of Senator McCaskill. I wish 
Justice Ronnie White, who went on to become Missouri's first African-
American chief

[[Page 11922]]

justice, had received similar consideration when President Clinton 
nominated him to the Eastern District of Missouri. Instead, more than 2 
years after he was nominated, and 2\1/2\ months after he was reported 
out of the Judiciary Committee for a second time, his nomination was 
voted down on a party line vote, not a single Republican Senator voting 
to confirm him. I also recall many of President Clinton's judicial 
nominees who were stalled because of anonymous Republican objections to 
their politics or their practice area. One of the two nominees from 
Missouri that we consider today is Rush Limbaugh's cousin. A similar 
lineage would have resulted in a pocket filibuster when the Senate was 
controlled by a Republican majority during the Clinton administration. 
So today, in contrast to the treatment of President Clinton's nominees, 
we proceed to consider these two nominations.
  I noted last week the sudden concern of the minority leader for 
district court nominations. Perhaps he did not have a chance to see my 
statement from earlier in the week in which I noted that with 
Republican cooperation, we have the opportunity this work period 
confirm five nominees already reported favorably by the Judiciary 
Committee? Of course, today we would have more than those five 
nominations on the Senate's Executive Calendar had Republicans not 
stalled this President's nominations of Judge Helene White and Ray 
Kethledge to the Sixth Circuit, and the nomination of Stephen Murphy to 
the Eastern District of Michigan. As I said last week, with cooperation 
from across the aisle, the Senate is poised to have confirmed four 
circuit court judges and 11 district court judges before the Fourth of 
July recess, confirming a total of 15 lifetime appointments.
  I recall Senator Specter's frustration when he was chairman with a 
Republican majority at the end of the last Congress, and Republican 
holds prevented the confirmation of 14 district court nominations. 
Democrats on the Judiciary Committee had worked hard to expedite the 
nominations at the end of the last Congress. Many of them were for 
vacancies deemed judicial emergencies, including three in one Federal 
district in Michigan where several judges of senior status--one over 90 
years old--continued to carry heavy caseloads to ensure that justice 
was administered in that district. Now, after the successful efforts of 
the Senators from Michigan in conjunction with the White House, I hope 
Republicans will not object to filling three more judicial emergency 
vacancies in Michigan.
  The complaints by the minority leader and his party about district 
court nominations ring as hollow as their complaints that Senate 
Democrats did not make best efforts to meet the goal he and the 
majority leader set of moving three circuit court nominations by 
Memorial Day. As at the end of the last Congress with those 14 district 
court nominations, Republicans resisted expediting the committee's 
consideration of the Michigan nominations before Memorial Day. They 
badgered the nominees, and sent scores of written follow up questions. 
At the May 7 hearing, the Republicans chose to complain that the 
committee was moving too fast, before the committee had received 
updated ABA ratings on the nominations. They pressed Judge White with 
scores of questions, failing to pose those same questions to Mr. 
Kethledge, a candidate for the same circuit. They demanded an extremely 
rare closed hearing to further question Judge White. Given their 
actions and their resistance to the White House's package of 
nominations--nominations made by this President--they made it 
impossible for the Committee to consider and report the Michigan 
nominations before the Memorial Day recess.
  We have now received the updated ABA rating for Judge White's 
nomination. She received a well qualified rating. That did not come as 
any surprise. She has served ably on the Michigan state appellate 
courts and acquired additional experience in the decade since she was 
nominated by President Clinton and the Republican Senate majority 
refused to consider her nomination.
  Ultimately, the Republican-led Senate left open five vacancies on the 
Fourth Circuit and four on the Sixth Circuit. With the Agee 
confirmation last month, we have already reduced vacancies on the 
Fourth Circuit to less than there were at the end of the Clinton 
administration, when a Republican-controlled Senate had refused to 
consider any nominees to that circuit during the last 2 years of the 
Clinton Presidency. If Republicans cooperate in considering the 
Michigan nominees, we will have filled every vacancy in the Sixth 
Circuit. Overall, when Republicans ran the Senate and were stalling 
consideration of President Clinton's nominees, circuit vacancies rose 
from 11 to 26, and it reached 32 during the transition to President 
Bush. We are in position to reduce circuit vacancies by three-quarters, 
to an historic low.
  In contrast to the Republican Senate majority that used the Clinton 
years to more than double circuit court vacancies around the country, 
the Senate has already reduced circuit court vacancies by almost two-
thirds, We are poised to complete Senate consideration of the two Sixth 
Circuit nominations. If the Republican minority allows that progress, 
yet another circuit will be without any vacancies. In fact, we would 
reduce the total number of circuit court vacancies across the Nation to 
single digits for the first time in decades.
  If instead we focus on the controversial nominations as the 
Republicans want, we run the risk of embroiling the committee and the 
Senate in months of debate, foreclosing the opportunity to make 
progress where we can. We saw what happened with our last contentious 
nomination--that of Leslie Southwick. It took 5\1/2\ months from the 
time of the hearing to his confirmation.
  The minority leader and the Wall Street Journal continue to point to 
the confirmation of 15 circuit judges in 1999 and 2000. Sometimes, the 
number is 17. Of course, their mythical ``statistical average'' of 
selected years ignores the crises the Republicans had created by not 
considering circuit nominees in 1996, 1997 and 1998, the fact that they 
refused to confirm a single circuit nominee during the entire 1996 
session, the fact that they returned 17 circuit court nominees without 
action to the White House in 2000, the public criticism of Chief 
Justice Rehnquist that helped moderate their stalling and the fact that 
they more than doubled circuit court vacancies while pocket 
filibustering Clinton nominees.
  The minority leader only reaches this mythical statistical by taking 
advantage of the high confirmation numbers of Democratic-led Senates 
confirming the nominees of President Reagan and the first President 
Bush. They ignore their own record of doubling vacancies during the 
Clinton administration. They do not like to recall that during the 1996 
session, when a Republican majority controlled the Senate during a 
Presidential election year, they refused to confirm any circuit court 
judges at all--not one. Their practice of pocket filibustering 
President Clinton's judicial nominees led Chief Justice Rehnquist, 
hardly a Democratic partisan, to criticize them publicly. Even he was 
appalled by the actions of the Republican Senate majority. In his 1996 
Year-End Report on the Federal Judiciary, he wrote:

       Because the number of judges confirmed in 1996 was low in 
     comparison to the number confirmed in preceding years, the 
     vacancy rate is beginning to climb. When the 104th Congress 
     adjourned in 1996, 17 new judges had been appointed and 28 
     nominations had not been acted upon. Fortunately, a 
     dependable corps of senior judges contributes significantly 
     to easing the impact of unfilled judgeships. It is hoped that 
     the Administration and Congress will continue to recognize 
     that filling judicial vacancies is crucial to the fair and 
     effective administration of justice.

  When that shot across the bow did not lead the Republican Senate 
majority to reverse course, Chief Justice Rehnquist spoke up, again, in 
his 1997 Year-End Report on the Federal Judiciary. It was a salvo from 
a Republican Chief Justice critical of the Republican Senate 
leadership:

       Currently, 82 of the 846 Article III judicial offices in 
     the Federal Judiciary--almost one out of every ten--are 
     vacant. Twenty-six of the vacancies have been in existence 
     for 18 months or longer and on that basis constitute what are 
     called ``judicial emergencies.'' In the Court of Appeals for 
     the

[[Page 11923]]

     Ninth Circuit, the percentage of vacancies is particularly 
     troubling, with over one-third of its seats empty.
       Judicial vacancies can contribute to a backlog of cases, 
     undue delays in civil cases, and stopgap measures to shift 
     judicial personnel where they are most needed. Vacancies 
     cannot remain at such high levels indefinitely without 
     eroding the quality of justice that traditionally has been 
     associated with the Federal Judiciary. Fortunately for the 
     Judiciary, a dependable corps of senior judges has 
     contributed significantly to easing the impact of unfilled 
     judgeships.

  It was only after the scorching criticism by a Republican Chief 
Justice that the Republican Senate majority modified its approach in 
order to allow some of the nominations that had been held back for 
years to finally proceed. Having built up scores of vacancies, some 
were allowed to be filled while the Republican Senate majority 
carefully kept vacant circuit court positions to be filled by President 
Clinton's successor. It is in that context that Republican claims of 
magnanimity must be seen for what it was. It is in that context that 
the eight circuit confirmations in 2000 must be evaluated while the 
Republican Senate majority returned 17 circuit nominations to President 
Clinton at the end of that session without action.
  In stark contrast, the Democratic Senate majority has worked steadily 
and steadfastly to lower vacancies and make progress, and we have.
  I have placed the two Michigan Sixth Circuit nominations on the 
agenda for the committee's business meeting this week. With cooperation 
from the Republicans, we can consider and vote on these nominations at 
that time. That should provide the Senate with the opportunity to 
consider them before the Fourth of July recess, bringing to four the 
number of circuit court nominees confirmed this year. Four would meet 
the Republican average for 1996 and 2000, and beat their total in the 
1996 session by four.
  The history is clear. On June 1, 2000, when a Republican Senate 
majority was considering the judicial nominees of a Democratic 
President in a Presidential election year, there were 66 judicial 
vacancies. Twenty were circuit court vacancies, and 46 were district 
court vacancies. Those vacancies were the result of years of Republican 
pocket filibusters of judicial nominations. This year, by comparison 
there are just 47 total vacancies with only 11 circuit vacancies and 36 
district court vacancies. After today, there will be just 44 total 
vacancies. If we can continue to make progress this month, the current 
vacancies could be reduced to fewer than 40, with only 9 circuit court 
vacancies and 30 district court vacancies.
  When Republicans were busy pocket filibustering Clinton nominees, 
Federal judicial vacancies grew to more than 100, with more than 30 
circuit vacancies.
  When I became Chairman in the summer of 2001, we quickly--and 
dramatically--lowered vacancies. The 100 nominations we confirmed in 
only 17 months, while working with a most uncooperative White House, 
reduced vacancies by 45 percent.
  After the four intervening years of a Republican Senate majority, 
vacancies remained about level.
  It is the Democratic Senate majority that has again worked hard to 
lower them in this Congress. We have gone from more than 110 vacancies 
to less than 50 and are heading to less than 40. With respect to 
Federal circuit court vacancies, we have reversed course from the days 
during which the Republican Senate majority more than doubled circuit 
vacancies. It bears repeating--circuit vacancies have been reduced by 
almost two-thirds and have not been this low since 1996, when the 
Republican tactics to slow judicial confirmations began in earnest.
  Consider for a moment the numbers: After another productive month, 
just 9 of the 178 authorized circuit court judgeships will remain 
vacant--just 9--a vacancy rate down from 18 percent to just 5 percent. 
With 168 active appellate judges and 104 senior status judges serving 
on the Federal Courts of Appeals, there are 272 circuit court judges. I 
expect that is the most in our history.
  The President has not nominated anyone to 16 of the current judicial 
vacancies. He has refused since 2004 to work with the California 
Senators on a successor to Judge Trott on the Ninth Circuit. The 
district court vacancies without nominees span from those that arose in 
Mississippi and Michigan in 2006, to several from 2007 in Pennsylvania, 
Michigan, Indiana and the District of Columbia, to others that arose 
earlier this year in Kansas, Virginia, Washington, and several in 
Colorado and Pennsylvania.
  Disputes over a handful of controversial judicial nominations have 
wasted valuable time that could be spent on the real priorities of 
every American. I have sought, instead, to make progress where we can. 
The result is the significant reduction in judicial vacancies.
  In fact, our work has led to a reduction in vacancies in nearly ever 
circuit. Both the Second and Fifth Circuits had circuit-wide 
emergencies due to the multiple simultaneous vacancies during the 
Clinton years with Republicans in control of the Senate. Both the 
Second Circuit and the Fifth Circuit now are without a single vacancy. 
We have already succeeded in lowering vacancies in the Second Circuit, 
the Fourth Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth 
Circuit, the Ninth Circuit, the Tenth Circuit, the Eleventh Circuit, 
the DC Circuit, and the Federal Circuit. Circuits with no current 
vacancies include the Seventh Circuit, the Eighth Circuit, the Tenth 
Circuit, the Eleventh Circuit and the Federal Circuit. When we are 
allowed to proceed with President Bush's nominations of Judge White and 
Ray Kethledge to the Sixth Circuit, it will join that list of Federal 
circuits without a single vacancy.
  My approach has been consistent throughout my chairmanships during 
the Bush Presidency. The results have been positive. Last year, the 
Judiciary Committee favorably reported 40 judicial nominations to the 
Senate and all 40 were confirmed. That was more than had been confirmed 
in any of the three preceding years when a Republican chairman and 
Republican Senate majority managed the process.
  Despite this progress, of course, some partisans seem determined to 
provoke an election year fight over nominations. The press accounts are 
filled with threats of Republican reprisals. The May 14 issue of Roll 
Call boasted the following headline: ``GOP Itching for Fight Over 
Judges; Reid's Pledge to Move Three Before Recess Fails to Appease 
Minority.'' Then in a recent article in The Washington Times, we read 
that the Republican fixation on judges is part of an effort to bolster 
Senator McCain's standing among conservatives. There seem to be no 
steps we could take to satisfy Senate Republicans on nominations, 
because they are using it as a partisan issue to rev up their partisan 
political base.
  The Republican effort to create an issue over judicial confirmations 
is sorely misplaced. Last month we experienced the greatest rise in 
unemployment in a single month in over two decades, bringing the total 
job losses for the first 5 consecutive months of this year to over 
325,000. Americans are now facing increasing burdens from the soaring 
price of gas, high food prices, rising unemployment and a home mortgage 
foreclosure and credit crisis.
  This year we have seen the worst plunge in new homes sales in two 
decades. The press reported that new home sales fell 8.5 percent in 
March, the slowest sales pace since October 1991, and the median price 
of a home sold dropped 13.3 percent compared to the previous year. That 
was the biggest year-over-year price decline in four decades. You would 
have to go back to July 1970 to find a larger decline.
  Unfortunately, this bad economic news for hard-working Americans is 
nothing new under the Bush administration. During the Bush 
administration, unemployment is up more than 20 percent and trillions 
of dollars in budget surplus have been turned into trillions of dollars 
of debt, with an annual budget deficit of hundreds of millions of 
dollars. Last week, the price of oil soared to nearly $139 a barrel, 
nearly twice what it was at this time last year. When President Bush 
took office, the price of gas was $1.42 a gallon. Today, it is at an 
all-time high of over $4.00 a gallon.

[[Page 11924]]

  According to a recent poll, 81 percent of Americans today believe 
that our country is headed in the wrong direction. It costs more than 
$1 billion a day--$1 billion a day--just to pay down the interest on 
the national debt and the massive costs generated by the disastrous war 
in Iraq. That's $365 billion this year that would be better spent on 
priorities like health care for all Americans, better schools, fighting 
crime, and treating diseases at home and abroad.
  In contrast, one of the few numbers actually going down as the 
President winds down his tenure is that of judicial vacancies. Senate 
Democrats have worked hard to make progress on judicial nominations, 
lowering circuit court vacancies by almost two-thirds from the level to 
which the Republican Senate majority had built them. Any effort to turn 
attention from the real issues facing Americans to win political points 
with judicial nominations is neither prudent, nor productive.
  Today we confirm three nominations for lifetime appointments. The 
first, Mark S. Davis, currently serves as Chief Judge of the Portsmouth 
Circuit Court, Third Judicial Circuit of Virginia. Prior to his 
appointment to the bench in 2003, Judge Davis worked in private 
practice at several Virginia law firms.
  David Gregory Kays currently serves as the presiding circuit court 
judge for the Twenty-Sixth Judicial Circuit for the State of Missouri, 
where he has served since his first election in 2005. Previously, Judge 
Kays served as an associate circuit judge for Laclede County Circuit 
Court in Missouri and as chief assistant prosecuting attorney in 
Laclede County.
  Stephen N. Limbaugh is a supreme court judge and former chief justice 
on the Supreme Court of Missouri. Previously, Judge Limbaugh was 
appointed and then elected Circuit Judge for the 32nd Judicial Circuit 
of Missouri. Before his career on the State bench, Judge Limbaugh was 
an elected prosecuting attorney and also worked in private practice.
  So today we make progress, and the Senate is likely to confirm three 
additional lifetime appointments to the Federal bench. I congratulate 
the nominees and their families on their confirmation today.
  Mr. President, how much time remains on either side?
  The ACTING PRESIDENT pro tempore. Two minutes twenty seconds for the 
Senator from Virginia, and 33 seconds to the Senator from Pennsylvania.
  Mr. LEAHY. Mr. President, I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent to yield 1 minute 
to the Senator from Virginia.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. WARNER. Mr. President, I was very privileged to submit the name 
of Mr. Davis to the President of the United States, and I am greatly 
appreciative to the Senate to now come to the question of his 
confirmation. But I think it would be interesting if I were to point 
out to all those following it that this individual was a former member 
of my staff.
  I think it shows the incentive of those many staff persons all 
throughout our system who contribute so much to the work of our 
individual Senators that they too can, through their service, lay the 
foundation to someday achieve this recognition by the Senate in which 
they worked.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Virginia.
  Mr. LEAHY. I yield to Senator Webb on my time, Mr. President.
  Mr. WEBB. Mr. President, I very quickly wish to associate myself with 
the remarks of the senior Senator from Virginia and to emphasize that 
we jointly examined a whole array of nominees for this position. This 
individual, perhaps because of and perhaps in spite of the fact he 
worked for the senior Senator from Virginia, is considered highly 
qualified by Members on this side of the aisle.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I would commend one more time the two 
Senators from Virginia, both dear friends of mine, for the fact we 
worked as one Democrat, one Republican with the White House to get us 
past this impasse. And I commend President Bush for withdrawing 
controversial nominees and working toward consensus nominees. That is 
why this nominee will go through, I suspect unanimously, in this body.
  I also commend the two Senators from Missouri, Senators Bond and 
McCaskill, for working together.
  Has all time been yielded back?
  The ACTING PRESIDENT pro tempore. Yes, it has.
  The question is, Will the Senate advise and consent to the nomination 
of Mark Steven Davis, of Virginia, to be a United States district judge 
for the Eastern District of Virginia?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), 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 Senators are necessarily absent: the Senator 
from South Carolina (Mr. Graham) and the Senator from Arizona (Mr. 
McCain).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 94, nays 0, as follows:

                      [Rollcall Vote No. 148 Leg.]

                                YEAS--94

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     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--6

     Byrd
     Clinton
     Graham
     Kennedy
     McCain
     Obama
  The nomination was confirmed.

                          ____________________