[Congressional Record (Bound Edition), Volume 155 (2009), Part 20]
[Senate]
[Pages 27602-27605]
[From the U.S. Government Publishing Office, www.gpo.gov]


  Mr. CARDIN. Madam President, I would like to address the concerns 
stated by the Senator from Oklahoma, Mr. Coburn, and the Senator from 
Alabama, Mr. Sessions, about Judge Davis's record when it comes to 
criminal cases. His concerns seem primarily rooted in six criminal case 
reversals that appear in Judge Davis's record. As a Federal judge over 
the past 14 years, Judge Davis has presided over approximately 5,300 
cases. Of that number, Judge Davis has presided over approximately 
4,300 cases that went to verdict or judgment based on a trial or 
decision he made. My colleagues are focusing on just a handful of cases 
to argue that Judge Davis should not be elevated to the Fourth Circuit.
  While the number of reversals on criminal evidentiary matters 
appearing in Judge Davis's record that my colleague has mentioned is 
small, Judge Davis has directly addressed Senators' questions related 
to each of these reversals, expressing his commitment to applying the 
law to the facts impartially and fairly, while respecting the role of 
the appellate courts in our judicial system and their decisions in all 
cases. Following his confirmation hearing in the Judiciary Committee in 
April, which I chaired, our committee reported him out favorably with a 
strong bipartisan vote of 16 to 3. This overwhelming, bipartisan 
approval indicates that Judge Davis is well-qualified to be a U.S. 
Circuit Judge for the Fourth Circuit. Out of the 5,300 cases over which 
Judge Davis has presided, these six cases are hardly cause for the 
concern my colleagues have expressed. Later I want to also mention some 
criminal cases in which Judge Davis's stiff criminal sentences were 
upheld by the Fourth Circuit, along with convictions obtained after 
jury trials. However, to make the record clear, I will review in detail 
Judge Davis's responses to some of the half a dozen cases noted by my 
colleagues.
  In US v. Bradley, Judge Davis accepted several plea agreements with 
the defendants, who ultimately pleaded guilty but later, on appeal, 
argued that their pleas were not voluntary because the court 
impermissibly participated in pleas negotiations. The Fourth Circuit 
did ``not suggest that [Judge Davis] improperly intended to coerce 
involuntary guilty pleas,'' but found plain error and remanded the case 
for assignment to a different district judge. Upon questioning by the 
committee, Judge Davis said that he became involved with--but did not 
interfere with the plea process--at the invitation and encouragement of 
defense counsel. He ultimately concluded that he shouldn't have gotten 
involved with the process at all. He said he believed, with the benefit 
of hindsight, that his involvement in facilitating the guilty pleas in 
this case was inappropriate and that the Fourth Circuit was correct to 
say so.
  In US v. Custis, Judge Davis granted the defendant's motion to 
suppress evidence discovered in a residential search on the grounds 
that the warrant was defective and insufficient. The Fourth Circuit 
reversed, holding that probable cause supported the warrant. While 
Judge Davis told the committee he does believe he read the affidavit in 
a common sense manner, he fully accepts the appellate court's ruling in 
this case.
  In US v. Kimbrough, Judge Davis said he accepts the appellate court's 
ruling rejecting his legal conclusion that the police permitted the 
defendant's mother to question him under circumstances which the police 
couldn't have done so without first administering customary warnings. 
He agrees that warnings are required only when official interrogation 
takes place, but not when private interrogation takes place.
  In US v. McNeill, Judge Davis granted a motion to suppress the 
defendant's confession on the grounds of an unlawful arrest. Judge 
Davis explained to the committee that the principal issue before him 
was whether, for a warrantless misdemeanor arrest, the fourth amendment 
required that the misdemeanor be committed in the officer's presence. 
He concluded that the answer was ``yes'' in this case, and that no 
misdemeanor had been committed in the officer's presence as of the 
moment of arrest. While Judge Davis explained that the Fourth Circuit's 
holding presented an argument and precedent that had not been presented 
to him, he fully accepted the appellate court's ultimate ruling in this 
case.
  In US v. Dickey-Bey, Judge Davis also suppressed evidence arising out 
of the interception of cocaine by police for lack of probable cause to 
arrest the defendant. He has told us that he fully accepts the 
appellate court's rejection of his legal conclusion that the evidence 
presented at the hearing on the motion to suppress was insufficient, 
and remains committed to adhering to the fourth amendment requirement 
to make commonsense assessments of objective facts, taking into account 
the totality of the circumstances.
  I found Judge Davis's responses to the Judiciary Committee's 
questions about these six criminal cases to be candid, honest, and 
forthright. Judging by the overwhelming bipartisan support for his 
approval in the Judiciary Committee, so did many of my colleagues, on 
both sides of the aisle. Judge Davis has told us that in every case 
that has ever come before him, and there have been over 5,300 of them, 
he has done his best to determine the facts and to apply the law to the 
facts impartially and fairly.
  Indeed, among the 5,300 cases that Judge Davis has presided over, he 
has a clear record of using a moderate and fair approach to criminal 
cases. He has presided over numerous important criminal trials that 
have resulted in convictions affirmed by the Fourth Circuit, and he has 
also granted motions to suppress evidence obtained in violation of the 
rights of the accused. So let's look at his record more broadly to get 
a clearer picture of his many years on the bench.
  For example, in US v. Ulrich, Judge Davis handed down convictions for 
four defendants for mail fraud in connection

[[Page 27603]]

with a real estate flipping scheme, a ruling that was affirmed by the 
Fourth Circuit in June 2007. In 2001, in US v. Montgomery, the Fourth 
Circuit affirmed his convictions related to a 10-week, multidefendant 
trial in a narcotics conspiracy prosecution. In 1998, the Fourth 
Circuit affirmed his conviction handed down in a murder prosecution in 
US v. Gray.
  As a Fourth Circuit Judge, Judge Davis has expressed that he will 
follow the precedents of the Supreme Court and the circuit, and will 
continue to apply the law to the facts of each case impartially and 
fairly. His record as a district judge clearly bears out this 
commitment.
  I thank my colleagues for supporting this nomination.
  Mr. LEAHY. I yield back the remainder of my time and ask for the yeas 
and nays.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. I will use some leader time here to explain to everyone 
where we are.
  At 10 o'clock in the morning when we come into session, there will be 
a moment of silence in honor of the soldiers and the civilians who were 
killed at Fort Hood.
  I am working now with the Republicans to see if we can come up with 
an agreement to finish Military Construction. I would like to finish it 
tomorrow. It appears that it may not be doable, but we are going to 
have votes tomorrow unless we can work something out to complete the 
legislation on Monday.
  If we can complete the legislation on Monday, the Military 
Construction legislation, part of the agreement has to be something 
with Judge Hamilton. Here is a man who has waited since April. We have 
agreed to give the Republicans all the time they want--if they want 30 
hours to talk about him beforehand or 5 hours before and after--but we 
can't work out anything that satisfies them. So it appears we can only 
do cloture, which is such a shame. But that is fine. We are going to 
have to work something out as an agreement; otherwise, we will have to 
have some votes tomorrow. I know we have on this side a couple of 
Senators who, if there are no votes, would go down to Texas. We have 
Kay Bailey Hutchison, who is the manager of the bill, who will not be 
here, but there are other people on the subcommittee who could do the 
bill. I hope we can work something out, but, as we have learned during 
this Congress, it is very difficult to work things out.
  We are going to have votes Monday, a week from today, in the morning. 
Everyone should understand that. Monday, a week from today, we will 
have votes in the morning. We have to do that. The next week is 
Thanksgiving. We are going to get on health care the week we come back 
before Thanksgiving. We are going to at least give it our utmost to get 
on that bill.
  We have a number of things that are very important. We have to do the 
highway bill. The day after tomorrow is Veterans Day. We have a number 
of veterans bills the Republicans have held up. They are bills dealing 
with homeless veterans, among other things. They are important pieces 
of legislation. Four or five of them are being held up. We put those 
together under rule XIV, and we are going to have a vote on them in the 
future. It is a shame that on Veterans Day we are not legislating for 
the veterans, but we have been held up doing lots of things.
  I hope we can work something out with the Republicans so we can 
complete the Military Construction bill, if not tomorrow, then on 
Monday, but we are not going--this isn't going to go over for many 
hours. I have asked to work something out. I hope we don't have to file 
cloture on this bill.
  I will tell everyone, I quite doubt that I am going to file cloture 
on Military Construction. If the Republicans don't want us to do that 
bill, then we will just do it some other time. It is Military 
Construction, an extremely important piece of legislation. In years 
past, we have done that bill in an hour. I can remember when Dianne 
Feinstein and Kay Bailey Hutchison were managing that bill and we did 
that bill in an hour. Over the years--Senator Leahy is on the floor, a 
longtime member of the Appropriations Committee--this was not something 
to send political messages on. It was a bill to do something to help 
our military, to build new bases, new recreation facilities, to 
renovate and repair facilities around the world.
  So we have the situation here where it doesn't matter what we bring 
up, the Republicans stall it for time. That is why Senator Stabenow has 
been here with her charts indicating the--I think we are up to 87 now, 
or something like that--things they have held up in this Congress.
  So I hope we can work something out so we don't have to have votes 
tomorrow, but I don't need the permission of the Republicans to have 
votes tomorrow. We can have votes on amendments that are offered by 
Democrats.
  We are going to have a moment of silence. Everyone recognizes the 
tragedy of the event, and we want to be as positive as possible.
  I hope we can work something out. I have two Democrats who have 
indicated they want to go, both freshman Senators, which doesn't 
matter--they have a right to go just as do senior Members of the 
Senate--and three Republicans have indicated they would like to go. I 
hope that is possible. They can go, I won't stop them from going, but 
we may have votes.
  Mr. LEAHY. Madam President, would the Senator yield?
  Mr. REID. I will be happy to yield.
  Mr. LEAHY. I agree so much with our leader about the appropriations 
bills. I see the distinguished chairman of the Appropriations 
Committee, Senator Inouye of Hawaii, on the Senate floor. He is the 
only person standing on this floor who has served longer in this Senate 
than I have. I have been on that committee for 35 years. These are 
things that are always done. Whether it is a Republican majority or a 
Democratic majority, they have always been done, almost in a pro forma 
fashion. If somebody wants to vote against it, they can vote against 
it. But with all of the tremendous bipartisan work that is done in the 
Appropriations Committee--nobody has worked harder than the chairman of 
the Appropriations Committee. Nobody has worked harder than he has to 
get a bipartisan bill to the floor. To have it delayed, especially 
Military Construction, especially matters that help our military at a 
time when they desperately need it, to have that held up just makes no 
sense. I share the leader's frustration.
  I want to note for the record that nobody has worked harder to get a 
bipartisan bill on the floor than the chairman of the Senate 
Appropriations Committee. In years past, that would go through in no 
time at all. I cannot understand this kind of partisanship.
  I yield the floor.
  Mr. REID. I say to my friend, the distinguished Senator from Vermont, 
I didn't see the chairman on the floor. Everything my friend from 
Vermont said about the Senator from Hawaii is true, and then multiply 
it by 10. Here is a man who has lived the military--a Medal of Honor 
winner, an amputee. There is not a more bipartisan person in the whole 
body than Senator Inouye from Hawaii.
  In short, everyone here understand: Monday, a week from tomorrow, no 
matter what happens tomorrow, we are going to have votes in the 
morning. We have just a short week until Thanksgiving and we have a lot 
to do, including health care.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The Senator from Alabama is recognized.
  Mr. SESSIONS. Madam President, I also assume we will soon be voting 
on Judge Honeywell for the U.S. district court in Florida. I enjoyed 
the dialog I had with her during the confirmation hearings. I was 
pleased to see good responses to questions for the record. She has 
served as an assistant public defender and an assistant city attorney, 
an associate and partner in a law firm, as well as both a county court 
judge and a State circuit court judge. I will be supporting her 
nomination.
  I wish to note that when I asked her about what role empathy should 
play in deciding cases, she said:


[[Page 27604]]

       Empathy does not play role in my consideration of cases. 
     Presently, I decide cases by applying the law to the facts of 
     the cases pending before me. If confirmed by the Senate to 
     serve as a District Court judge, I will decide cases in the 
     same manner.

  I would expect, as I did for President Clinton, to vote for well over 
90 percent of the nominees who are submitted by the President. I hope 
to be able to do that for President Obama. But I will say, for the 
reasons I gave earlier, I must oppose Judge Davis.
  I ask unanimous consent that an article written by Larry Margasak 
from the Associated Press, dated Monday, November 9, 2009, be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             Democrats Have Short Memory on Judge Nominees

                          (By Larry Margasak)

       Ten months into Barack Obama's presidency, Democrats are 
     accusing Republicans of creating ``a dark mark on the 
     Senate'' by delaying confirmation of his federal court 
     nominees.
       The mark might not be as dark as Democrats make it seem.
       Of the 27 judicial nominations Mr. Obama has made so far, 
     all five brought up for votes in the Senate have won 
     relatively quick confirmations, including new Supreme Court 
     Justice Sonia Sotomayor.
       So what is this ``dark mark'' that Senate Judiciary 
     Committee Chairman Patrick J. Leahy, Vermont Democrat, talks 
     about?
       It's primarily two federal judges--one from Indiana, the 
     other Maryland--who've been waiting five months for Senate 
     Majority Leader Harry Reid, Nevada Democrat, to bring their 
     nominations for appeals court promotions to the Senate floor.
       Republicans contend that the nominees are activist judges, 
     and Mr. Reid hasn't forced the issue--although he said 
     Wednesday that he might do so by Veterans Day for at least 
     one of the nominees.
       One other nominee has been waiting since Sept. 10. But 
     seven others have been waiting from only one to five weeks. 
     That's not a long time for the Senate, which prides itself as 
     a deliberative body, and Republicans say they're ready to 
     vote on most of them.
       Democrats have a record of their own that is far from being 
     a bright light. Just three years ago, they were blocking 
     votes on some of President George W. Bush's more conservative 
     judicial nominees.
       Several of Mr. Bush's nominees waited for years--two years 
     for eventual Supreme Court Chief Justice John G. Roberts Jr. 
     when he was nominated for an appellate court post.
       Priscilla Owen waited through four years of Democratic 
     blocking tactics before she was confirmed for the New 
     Orleans-based federal appeals court. Miguel Estrada withdrew 
     his bid for an appellate seat after a Democratic filibuster 
     lasting more than two years.
       As an institution that lets the minority party use rules to 
     block legislation and nominations, the Senate often acts as a 
     filter for preventing the more politically strident bases of 
     each party from tilting the judicial branch too much one way 
     or the other.
       Although moderate nominees win confirmation easily, both 
     parties use what is essentially the same argument to block or 
     at least delay action on others: The particular nominee would 
     substitute his or her own liberal or conservative philosophy 
     for the law and the Constitution.
       ``It would be wrong for us to be a rubber stamp for each 
     nominee,'' Sen. Jeff Sessions of Alabama, the senior 
     Republican on the Judiciary Committee, said in a recent 
     confirmation dustup in the Senate.
       That sounds familiar.
       After Mr. Estrada gave up, Sen. Edward M. Kennedy, 
     Massachusetts Democrat, said, ``This should serve as a wake-
     up call to the [Bush] White House that it cannot simply 
     expect the Senate to rubber-stamp judicial nominations.''
       The Republican stall at this point is focused on two 
     appellate court judges whose nominations were sent by the 
     Judiciary Committee to the full Senate on June 4:
       David Hamilton of Indiana, a U.S. district judge and nephew 
     of former Democratic Rep. Lee H. Hamilton, chosen for the 
     Chicago-based appeals court.
       Mr. Reid said he wants a vote on Judge Hamilton by Veterans 
     Day. He'll probably need a supermajority of 60 to get one.
       Judge Andre Davis, a district judge in Maryland, nominated 
     for a seat on the appellate court headquartered in Richmond.
       Mr. Sessions made it clear that his party will put up a 
     fight against confirming either. He cited Judge Hamilton's 
     position in the late 1980s as a vice president for litigation 
     and board member of the Indiana chapter of the American Civil 
     Liberties Union. Mr. Sessions also complained about Judge 
     Hamilton's judicial rulings.
       ``Instead of embracing the constitutional standard of 
     jurisprudence, Judge Hamilton has embraced this `empathy' 
     standard, this `feeling' standard. Whatever that is, it is 
     not law. It is not a legal standard,'' Mr. Sessions said.
       In Judge Davis' case, Mr. Sessions made the delay sound 
     like a payback to Democrats, although he denied that was his 
     purpose.
       ``We have had a number of battles over the failure to fill 
     some of the vacancies on that court,'' Mr. Sessions said, 
     referring to stalls of Mr. Bush's nominees for the Richmond-
     based appeals court--once known for its conservatism.
       Mr. Sessions said Republicans have a problem with only one 
     other current nominee before the Senate: Edward Chen, chosen 
     for a U.S. district court seat in California. But Mr. Chen's 
     nomination was only approved by the committee on Oct. 15, 
     hardly enough time to make the case for a stall.
       ``Most of the nominees . . . will go through in an 
     expeditious manner,'' Mr. Sessions said. He said Republicans 
     are ready to support Beverly Martin, nominated for the 
     Atlanta-based appeals court, but Democrats have not scheduled 
     a vote. Her nomination reached the full Senate Sept. 10.
       In the Senate's five judicial confirmation votes this year, 
     only Justice Sotomayor generated significant Republican 
     opposition, and she was approved 68-31.

  Mr. SESSIONS. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Andre M. Davis, of Maryland, to be United 
States circuit judge for the Fourth Circuit?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), the Senator from North Dakota (Mr. Dorgan), the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Florida (Mr. Nelson) 
are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Missouri (Mr. Bond), the Senator from North Carolina (Mr. Burr), 
the Senator from Georgia (Mr. Chambliss), the Senator from Texas (Mr. 
Cornyn), the Senator from New Hampshire (Mr. Gregg), the Senator from 
Texas (Mrs. Hutchison), the Senator from Georgia (Mr. Isakson), and the 
Senator from Idaho (Mr. Risch).
  Further, if present and voting, the Senator from Texas (Mr. Cornyn) 
would have voted ``yea.''
  The PRESIDING OFFICER (Mrs. Shaheen). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 72, nays 16, as follows:

                      [Rollcall Vote No. 342 Ex.]

                                YEAS--72

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Corker
     Dodd
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--16

     Barrasso
     Brownback
     Bunning
     Coburn
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Inhofe
     Johanns
     Roberts
     Sessions
     Shelby
     Thune
     Vitter

                             NOT VOTING--12

     Bond
     Burr
     Byrd
     Chambliss
     Cornyn
     Dorgan
     Gregg
     Hutchison
     Isakson
     Kerry
     Nelson (FL)
     Risch
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is made and laid upon the table.
  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)


                            vote explanation

 Mr. KERRY. Madam President, I was necessarily absent for the 
vote on the confirmation of Andre Davis to the Fourth Circuit. If I 
were able to attend today's session, I would have voted for his 
confirmation.

[[Page 27605]]



                          ____________________