[Congressional Record (Bound Edition), Volume 156 (2010), Part 2]
[Senate]
[Pages 2244-2249]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF BARBARA MILANO KEENAN TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE FOURTH CIRCUIT

  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 Barbara Milano Keenan, 
of Virginia, to be United States Circuit Judge for the Fourth Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 12:15 will be equally divided and controlled between the Senator 
from Vermont, Mr. Leahy, and the Senator from Alabama, Mr. Sessions.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, the nomination of Justice Barbara Keenan 
of Virginia to the Fourth Circuit should be noncontroversial; her 
nomination should have been confirmed long ago. She has the support of 
her home State Senators. She has the support of Virginians from both 
parties, and many others. She was approved unanimously by the Senate 
Judiciary Committee over 4 months ago.
  I suspect that like the confirmations of Judge Viken, Judge Lange, 
Judge Berger, Judge Honeywell, Judge Reiss, Judge Kallon, Judge Nguyen, 
Judge Seeborg, Judge Gee, Judge Peterson, Judge Martin and Judge 
Greenaway, this nomination could well be approved unanimously. Instead, 
in what has become a sorry and unacceptable attitude on the part of 
Republicans, she has been filibustered. This nomination should have 
been approved unanimously. We will now have to vote to bring cloture on 
something that would normally have been done on a voice vote. I am 
willing to predict she will get an overwhelming vote when they finally 
allow us to vote on her.
  Because of what has happened with these filibusters, the Senate is 
far behind where we should be in filling judicial vacancies, vacancies 
that skyrocketed to be more than 100 and more have been announced. We 
need to do better. The American people deserve better.
  Here it is, March 2. On March 2 of President Bush's first term the 
Senate had confirmed 39 Federal circuit and district court nominations. 
We, the Democrats, were in the majority. We moved very hard to get 
those 39 through. That included the period of the 9/11 attacks and the 
anthrax attack upon the Senate. In spite of all the obstacles, by March 
2, Senate Democrats had moved forward to help confirm 39 of President 
Bush's judicial nominees.
  Although the Senate Judiciary Committee has favorably reported 29 of 
President Obama's Federal circuit and district court nominees to the 
Senate for final consideration, because of Republican obstruction, the 
Senate has confirmed only 15 Federal circuit and district court 
nominees. So, by March 2 of the second year of President Bush's first 
term, 39; by March 2 of the second year of President Obama's 
Presidency, 15. That is more than 60 percent fewer. This is despite the 
fact that President Obama began sending judicial nominations to the 
Senate 2 months earlier than President Bush, after President Obama's 13 
months in office the Senate is has confirmed only 15 Federal circuit 
and district court judges.
  The judiciary is supposed to be out of partisan politics. This is 
really unacceptable. In fact, I note that during 17 months of President 
Bush's first term when the Democrats were in charge, we confirmed 100 
of his judges. During 31 months with the Republicans in charge, they 
confirmed approximately 100. We worked very hard to help President Bush 
though.
  The return, instead, is that the Republicans have filibustered 
nominees, judicial nominees who, when they finally get a vote, get a 
unanimous vote. This has created a real crisis in the judiciary. Last 
year's total was the fewest judicial nominees confirmed in the first 
year of a Presidency in more than 50 years. Those 12 Federal circuit 
and district court confirmations were even below the 17 the Senate 
Republican majority allowed to be confirmed in the 1996 session. After 
that Presidential election year, Chief Justice Rehnquist began 
criticizing the pace of judicial confirmations and the partisan 
Republican tactics. I hope the Chief

[[Page 2245]]

Justice would do what Chief Justice Rehnquist, another Republican did 
when Republicans were slowing up judicial nominations, and speak to the 
need to do this.
  I have spoken repeatedly to Senate leaders on both sides of the aisle 
and I made the following proposal: Agree to immediate votes on those 
judicial nominees who have been reported by the Senate Judiciary 
Committee without dissent and agree to time agreements to debate and 
vote on the others.
  We are making a mockery of the Federal judiciary by bringing in such 
needless partisan politics. This is my 36th year and I have been here 
with both Republicans and Democrats in the majority, with both 
Republican and Democratic Presidents. I have never seen anything like 
this in 36 years. It involves the judiciary in partisan politics in a 
way that is unprecedented, but it also shames the Senate. The American 
people are right to ask why they are doing this. It makes no sense.
  Among the frustrations is that Senate Republicans have delayed and 
obstructed nominees chosen after consultation with Republican home 
state Senators. Despite President Obama's efforts, Senate Republicans 
have treated his nominees much, much worse.
  I noted when the Senate considered the nominations of Judge Christina 
Reiss of Vermont and Mr. Abdul Kallon of Alabama relatively promptly 
that they should serve as the model for Senate action. Sadly, they are 
the exception rather than the model. They show what the Senate could 
do, but does not. Time and again, noncontroversial nominees are 
delayed. When the Senate does finally consider them, they are confirmed 
overwhelmingly. Of the 15 Federal circuit and district court judges 
confirmed, 12 have been confirmed unanimously.
  That is right. Republicans have only voted against 3 of President 
Obama's nominees to the Federal circuit and district courts. One of 
those, Judge Gerry Lynch of the Second Circuit, garnered only three 
negative votes and 94 votes in favor. Judge Andre Davis of Maryland was 
stalled for months and then confirmed with 72 votes in favor and only 
16 against. Judge David Hamilton was filibustered in a failed effort to 
prevent an up-or-down vote.
  The obstruction and delay is part of a partisan pattern. Even when 
they cannot say ``no,'' Republicans nonetheless demand that the Senate 
go slow. The practice is continuing. This is the 17th filibuster of 
President Obama's nominees. That does not count the many other nominees 
who were delayed or are being denied up-or-down votes by Senate 
Republicans refusing to agree to time agreements to consider even 
noncontroversial nominees.
  Senate Republicans unsuccessfully filibustered the nomination of 
Judge David Hamilton of Indiana to the Seventh Circuit, despite support 
for his nomination from the senior Republican in the Senate, Dick Lugar 
of Indiana. Republicans delayed for months Senate consideration of 
Judge Beverly Martin of Georgia to the Eleventh Circuit, despite her 
endorsement from both her Republican home State Senators. When 
Republicans finally agreed to her consideration on January 20, she was 
confirmed unanimously. Whether Jeffrey Viken or Roberto Lange of South 
Dakota, who were supported by Senator Thune, or Charlene Edwards 
Honeywell of Florida, who was supported by Senators Martinez and 
LeMieux, virtually all of President Obama's nominees have been 
prevented prompt Senate action by Republican objections.
  But instead of making progress by promptly considering Justice 
Keenan's noncontroversial nomination, we are now facing yet another 
Republican filibuster. There is no explanation for these delays, nor 
could there be. Justice Keenan is currently a justice on the Supreme 
Court of Virginia; she has an impressive judicial background. She has 
been a judge for the last 29 years--half of her life--and has served on 
each of the four levels of the Virginia State courts. If confirmed, 
Justice Keenan would be the first woman from Virginia to serve on the 
Fourth Circuit. She was also the first female general district court 
judge in Virginia, the first female circuit court judge in that State, 
the first woman named to the Virginia Court of Appeals, and the second 
female justice on the Virginia Supreme Court.
  The American Bar Association's Standing Committee on the Federal 
Judiciary has unanimously rated her ``well qualified''--its highest 
rating--to sit on the Fourth Circuit. The Virginia State Bar rated her 
``highly qualified'' by unanimous vote, and bar associations throughout 
the State gave her their highest recommendation. Many of the lawyers 
who make up those associations have practiced before Justice Keenan, so 
their strong support of her nomination is telling.
  Republican Senators should act as we acted when we worked together to 
reduce vacancies during the Bush administration. In fact, our work led 
to a reduction in vacancies in nearly every circuit. When President 
Bush left office, we had reduced vacancies in 9 of the 13 circuits from 
when President Clinton left office. One of the circuits where we 
succeeded in reducing vacancies was the Fourth Circuit, the circuit to 
which Justice Keenan has been nominated.
  Like the nomination of Steven Agee of Virginia to the Fourth Circuit, 
confirmed in President Bush's last year in office by a Senate with a 
Democratic majority, Justice Keenan's nomination should be able to be 
confirmed without further obstruction and delay. The Senate proceeded 
quickly to consider the Agee nomination, even though it was a 
Presidential election year, because President Bush had cooperated with 
the home State Senators to withdraw the controversial nomination of 
Duncan Getchell and instead nominate Judge Agee. Mr. Getchell had been 
nominated over the objection of both Virginia Senators, a Republican 
and a Democratic, and his nomination was finally withdrawn after many 
wasted months. The Agee nomination also followed years of 
contentiousness, as President Bush insisted on nominations like those 
of Jim Haynes and Claude Allen. When a President from either party 
works with home State senators to identify noncontroversial, well-
qualified nominees, the Senate should move quickly to consider them.
  Regrettably, it has taken the Senate twice as long to consider 
Justice Keenan's nomination as it did Judge Agee's for a seat on the 
same Court. The Senate can and must do better for the American people 
and the rule of law.
  There is an easy place to start. The Senate can virtually double its 
total by considering the 14 judicial nominees currently on the Senate 
Executive Calendar without additional delay. In December, I made 
several statements in this Chamber about the need for progress on the 
nominees reported by the Senate Judiciary Committee. I also spoke 
repeatedly to Senate leaders on both sides of the aisle and made the 
following proposal: Agree to immediate votes on those judicial nominees 
that are reported by the Senate Judiciary Committee without dissent, 
and agree to time agreements to debate and vote on the others.
  At the time there were six judicial nominees on the Senate Executive 
Calendar that no Republican member of the Judiciary Committee had 
opposed. Republicans refused. We have considered just three of those 
nominations in the last 3 months. They were each confirmed unanimously, 
without a single Republican Senator voting or speaking against them. It 
should not have taken 3 months to confirm three nominees unanimously. 
It has become the Republican strategy of delay--delay even those 
nominees they support. They delayed confirmation of Judge Beverly 
Martin of Georgia to the Eleventh Circuit until this year. They delayed 
confirmation of Judge Joseph Greenaway of New Jersey to the Third 
Circuit until last month. Still, three of the nominees who were 
reported unanimously last year are still stalled on the Senate 
Executive Calendar awaiting Republican agreement to vote on them.
  I renew my proposal. There are now eight judicial nominations on the 
Senate Executive Calendar that were reported from the Senate Judiciary 
Committee without a single dissenting vote, including Barbara Keenan. 
When Republicans allow the Senate to consider them, they will all be 
approved

[[Page 2246]]

overwhelmingly, if not unanimously. I urge Republicans to agree to 
consider and confirm them today.
  I further call upon Republicans to agree to time agreements on each 
of the other six judicial nominees ready for final Senate action. Only 
one Republican Senator in the Judiciary Committee voted against Judge 
Wynn of North Carolina; only three voted against Judge Vanaskie of 
Pennsylvania; only four voted against Ms. Stranch of Tennessee, who is 
supported by the senior Senator from Tennessee, a Republican and a 
member of the Senate Republican leadership. Senate Republicans should 
identify the time they require to debate the nominations of Justice 
Butler of Wisconsin, Judge Chen of California and Judge Pearson of 
Ohio, who are all well-qualified nominees for district court vacancies, 
which are typically considered and confirmed without lengthy debate.
  During the debate on Judge Martin's nomination earlier this year, 
several misstatements were made on the floor of the Senate. I corrected 
the record on January 25. More recently, during Senate consideration of 
Judge Greenaway's nomination, additional misstatements were made here. 
It may be that some Republicans were unaware of the efforts by me, the 
Senators from New Jersey, and the Democratic leadership to consider 
Judge Greenaway's nomination earlier. Republicans were repeatedly asked 
to agree to consider both the Martin and Greenaway nominations. The 
majority leader stated so on January 22, as did I on January 25. Those 
efforts began long before January 22. Perhaps those Republicans who say 
it only took 2 weeks to schedule the Greenaway vote did not know of 
those discussions. But it still does not answer the question of why it 
took 2 weeks for Republicans to agree hold a vote that was unanimous.
  In addition, the record should be clear that the New Jersey Senators 
had indicated their support for the Greenaway nomination since it was 
first announced, and were in no way a source of delay. Neither Senator 
``refused'' or ``failed'' to send in their consent to proceed. To the 
contrary, the hearing on the Greenaway nomination was in September, 
because I honored Republicans' request that committee not to proceed 
with additional hearings in the summer, while a Supreme Court 
nomination was being considered. The fact is that during those months, 
it was Senate Republicans who were unprepared to proceed to a hearing 
on the Greenaway nomination. There is no cause to blame the Senators 
from New Jersey for delays in considering that nomination. Republicans' 
suggestion that Democrats are delaying in their consent to advance 
these nominations is also more than ironic since they have never 
acknowledged, nor accepted, responsibility for pocket filibustering 
more than 60 of President Clinton's judicial nominees. In fact, when I 
became chairman of the Judiciary Committee, I made Senators' consent 
forms, or blue slips, public for the first time. I am still waiting for 
Republicans to agree to make public their blue slips from 1993 through 
2000. Because of the change I made, the anonymous holds that obstructed 
so many of President Clinton's nominees did not continue under 
President Bush. Regrettably, unlike President Obama, his predecessor 
did not work with Senators of the other party on nominations. It is no 
secret that the reason the committee did not proceed on President 
Bush's nominee to the vacancy on the Third Circuit from New Jersey was 
because the New Jersey Senators did not consent.
  So when Senator Sessions says that he respects me for consulting with 
home State Senators, and in the same statement criticizes me for 
consulting with home State Senators, it is a bit disturbing. When he 
asks me not to hold hearings and then criticizes me for supposedly 
delaying hearings, it is not fair. When the Republicans are not ready 
to proceed on a nomination and then attribute the delays to others, it 
is wrong. Maybe the lesson is that I should not accommodate Republican 
requests but press the schedule more quickly, because otherwise I risk 
being accused of going too slowly.
  We have seen unprecedented obstruction by Senate Republicans on issue 
after issue--over 100 filibusters last year alone, which affected 70 
percent of all Senate action. Instead of time agreements and the will 
of the majority, the Senate is faced with a requirement to find 60 
Senators to overcome a filibuster on issue after issue. The Senate was 
not allowed to complete action on short extensions of unemployment 
insurance benefits, the Satellite Home Viewer Act, and other needed 
measures last week because of Republican objection. Unfortunately, we 
have seen the repeated abuse of filibusters, and delay and obstruction 
have become the norm for Senate Republicans.
  Just as Senate Republicans reversed themselves when it came time to 
vote on the deficit reduction commission that they had sponsored; just 
as Senate Republicans who voted for the USA PATRIOT Act Sunset 
Extension Act, S. 169, which was reported by the Senate Judiciary 
Committee last October, have reversed themselves and abandoned it; so, 
too, have Senate Republicans reversed themselves on filibusters against 
nominations. Those who just a short time ago said that a majority vote 
is all that should be needed to confirm a nomination, and that 
filibusters of nominations are unconstitutional, have reversed 
themselves and now employ any delaying tactic they can. They have 
ratcheted up their partisanship to delay and obstruct the President's 
nominees--once the American people elected a Democratic President.
  The Republican practice of making supermajorities the new standard to 
proceed to consider many noncontroversial and well-qualified 
nominations for important posts in the executive branch, and to fill 
vacancies on the Federal courts, is having a debilitating effect on our 
government's ability to serve the American people. Hard-working 
Americans who seek justice in our overburdened Federal courts are the 
ones who will pay the price for Republicans' obstruction and delay. 
They deserve better.
  Even after years of Republican pocket filibusters that led to 
skyrocketing judicial vacancies, Democrats did not practice this kind 
of obstruction and delay in considering President Bush's nominations. 
We worked hard to reverse the Republican obstructionism. In the second 
half of 2001, the Democratic majority in the Senate proceeded to 
confirm 28 judges. During just the second year of President Bush's 
first term, the Democratic Senate majority confirmed 72 judicial 
nominations and helped reduce the vacancies left by Republican 
obstructionism of President Clinton's judicial nominees from over 110 
to 59 by the end of 2002. Overall, as I have noted, in the 17 months 
that I chaired the Senate Judiciary Committee during President Bush's 
first term, the Senate confirmed 100 of his judicial nominees. By 
comparison, the total number of Federal circuit and district court 
judges confirmed during the 13 months President Obama has been in 
office is barely 15 percent of that total.
  Senate Democrats continued to work to reduce vacancies even during 
President Bush's last year in office. With Senate Democrats again in 
the majority, we reduced judicial vacancies to as low as 34, even 
though it was a presidential election year. When President Bush left 
office, we had reduced vacancies in 9 of the 13 Federal circuits.
  As matters stand today, judicial vacancies have spiked again, as they 
did due to Republican obstruction in the 1990s. These vacancies are 
again being left unfilled. We started 2010 with the highest number of 
vacancies on article III courts since 1994, when the vacancies created 
by the last comprehensive judgeship bill were still being filled. While 
it has been nearly 20 years since we enacted a Federal judgeship bill, 
judicial vacancies are nearing record levels, with 104 current 
vacancies and another 22 already announced. If we had proceeded on the 
judgeship bill recommended by the Judicial Conference to address the 
growing burden on our Federal judiciary, as we did in 1984 and 1990, in 
order to provide the resources the courts need, current vacancies would 
stand over 160 today and would be headed toward 180. That is the true 
measure of how far behind we have fallen.

[[Page 2247]]

  Republican Senators insisted on stalling confirmation of the 
nomination of Judge Gerard Lynch, who was confirmed with more than 90 
votes. They insisted on stalling the nomination of Judge Andre Davis, 
who was confirmed with more than 70 votes. They unsuccessfully 
filibustered the nomination of Judge David Hamilton last November, 
having delayed its consideration for months. They stalled Judge Beverly 
Martin's nomination for at least 2 months because they would not agree 
to consider it before January 20. They stalled for 3 additional weeks 
on Judge Greenaway's nomination before he was confirmed unanimously. We 
have wasted weeks and months having to seek time agreements in order to 
consider nominations that were reported by the Senate Judiciary 
Committee unanimously and who are then confirmed overwhelmingly by the 
Senate once they are finally allowed to be considered.
  I, again, urge Senate Republicans to reconsider their strategy and 
allow prompt consideration of all 14 judicial nominees awaiting Senate 
consideration, not just Barbara Keenan of Virginia, but also the 
following nominees: Jane Stranch of Tennessee, nominated to the Sixth 
Circuit; Judge Thomas Vanaskie of Pennsylvania, nominated to the Third 
Circuit; Judge Denny Chin of New York, nominated to the Second Circuit; 
Judge William Conley, nominated to the Western District of Wisconsin; 
Justice Rogeriee Thompson of Rhode Island, nominated to the First 
Circuit; Judge James Wynn of North Carolina, nominated to the Fourth 
Circuit; Judge Albert Diaz of North Carolina, nominated to the Fourth 
Circuit; Judge Edward Chen, nominated to the Northern District of 
California; and Justice Louis Butler, nominated to the Western District 
of Wisconsin; Nancy Freudenthal, nominated to the District of Wyoming; 
Denzil Marshall, nominated to the Eastern District of Arkansas; Benita 
Pearson, nominated to the Northern District of Ohio and Timothy Black, 
nominated to the Southern District of Ohio.
  (The remarks of Mr. Leahy and Mr. Sessions are printed in today's 
Record under ``Morning Business.'')
  The PRESIDING OFFICER (Mr. Casey). The Senator from Vermont.
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WEBB. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). Without objection, 
it is so ordered.
  Mr. WEBB. Mr. President, I rise again to speak on behalf of Justice 
Barbara M. Keenan, the nominee to serve on the Fourth Circuit. I would 
like to point out this is the third time I have had the pleasure of 
outlining her qualifications and also would like to express my regret 
that the Senate is again being forced to waste valuable time that could 
be used toward solving greater problems in our country in order to go 
through these repeated delays on votes that are going to be, if not 
unanimous, certainly well above 90 of our body in favor of this type of 
nomination.
  The American people are commenting about how the Congress is not 
addressing the true problems of the country. I think this is an example 
that perhaps all those who are interested in our political system can 
comprehend rather quickly, of obstructionism and of the unnecessary 
delay of the appointment of individuals who are vitally needed as we 
look at the state of our judicial system today.
  Justice Keenan was voted out of committee in October of last year by 
a unanimous voice vote. Her nomination is noncontroversial. She has 
been a dedicated public servant, a fair and balanced jurist. Her 
nomination has broad bipartisan support not only in this body but also 
in the Commonwealth of Virginia. So I again believe it is critical we 
move forward as quickly as possible to confirm this nomination.
  There are currently four vacancies on the Fourth Circuit--more than 
any other circuit in our country. This seat that Justice Keenan would 
fill has been vacant now for more than 2 years. She is an extraordinary 
choice to fill this vacancy.
  She has been a State supreme court justice since 1991. She has been a 
trailblazer for women in the law throughout her career. At the age of 
29, she was the first female general district court judge in Virginia, 
when she was selected for the Fairfax County bench in 1980. She became 
the first female circuit court judge when she was promoted to that 
court in 1982. In 1985, she was 1 of 10 judges named to the first 
Virginia Court of Appeals and was the only woman on that court when it 
was first created. She was selected for the State supreme court, the 
second female justice ever to serve there, in 1991. She was, in fact, 
the first judge to serve on all four levels of Virginia's courts.
  As I pointed out in my previous floor remarks, I think it is very 
important for the understanding of this body to point out that when 
Governor McDonnell was recently sworn into office, he specifically 
requested that Justice Keenan deliver him that oath of office. In fact, 
Governor McDonnell has released a statement where he said:

       Virginia Supreme Court Justice Barbara Keenan is one of the 
     foremost legal minds in our Commonwealth. . . .Her nomination 
     by the President for the United States Court of Appeals for 
     the Fourth Circuit is one that should be viewed favorably and 
     acted upon expeditiously. Justice Keenan has dedicated her 
     career to public service . . . I look forward to her service 
     on the Fourth Circuit bench.

  This is from Governor McDonnell, who is from the Republican Party, 
and I think it is a clear indication of the broad respect this 
individual has within the Commonwealth.
  I am mindful of the Senate's constitutional role in confirming 
executive nominations. This is vitally important. We have a robust 
vetting process. Debate is important and appropriate. We have 
conducted, inside the Virginia delegation, that kind of vetting process 
which resulted in Justice Keenan's name being moved forward.
  Again, in the name of pragmatic bipartisanship and in the spirit of 
good governance in the way we should be spending valuable time on the 
Senate floor, with so many issues affecting this country, we need to 
move past these artificial barriers. We need to stop putting delays in 
front of the types of issues we should be confronting. Let's get on 
with the business of governing.
  Again, as I pointed out in my previous statement, of the 876 Federal 
judgeships, there are currently 100 vacancies. These vacancies delay 
the administration of justice, they delay the resolution of disputes, 
and they diminish our citizens' right to a speedy trial. They affect 
the respect for our whole governmental process.
  In light of the fact that my prediction is Justice Keenan will get, 
if not 100 votes in this body--I doubt she will get 1 or 2 negative 
votes in this whole body--there is no need for us to go through hours 
and hours of debate and delay in order to get her where she needs to 
be; that is, on the Fourth Circuit. So I am asking my colleagues across 
the aisle if we might not move this nomination forward in a timely way.
  With that, I yield the floor.
  Mr. CARDIN. Mr. President, I rise today to urge the Senate to invoke 
cloture on the nomination of Barbara Milano Keenan of Virginia to be a 
United States circuit judge for the Fourth Circuit.
  I had the privilege to chair Justice Keenan's confirmation hearing on 
October 7 of last year. The Judiciary Committee reported out her 
nomination by voice vote on October 29 of last year. And here we are 
today over 4 months later, just now debating the nomination.
  I take a special interest in the fourth Circuit, as it includes my 
home State of Maryland. In May 2008 I chaired the confirmation hearing 
for Justice Steven Agee, who also served on the Virginia Supreme Court 
and was confirmed to be a U.S. circuit judge for the Fourth Circuit. In 
April 2009 I chaired

[[Page 2248]]

the confirmation hearing for Judge Andre Davis of Maryland, who was 
overwhelmingly confirmed by the Senate by a 72 to 16 vote in November.
  I mention these nominations by way of background for my colleagues, 
because the Fourth Circuit has one of the highest vacancy rates in the 
country today. Out of the 15 seats authorized by Congress, 4 are 
vacant, which means over one-quarter of the court's seats are now 
vacant. Our circuit courts of appeals are the final word for most of 
our civil and criminal litigants, as the Supreme Court only accepts a 
handful of cases. I had hoped that the Senate will move more quickly to 
nominate and confirm qualified candidates for these seats. I also look 
forward to increasing the diversity of the judges of the Fourth 
Circuit.
  So I don't understand why the Senate has been moving so slowly on 
nominations, most of which are not controversial. Of the 15 Federal 
circuit and district court judges confirmed during President Obama's 
tenure, 12 have been confirmed unanimously. Republicans have only voted 
against three of President Obama's nominees to the Federal circuit and 
district courts. I expect that when Justice Keenan comes to a vote, she 
will be overwhelmingly confirmed, if not unanimously confirmed. So why 
is the Senate waiting more than 4 months to act on her nomination after 
it has been reported by the Judiciary Committee by a voice vote?
  We started 2010 with the highest number of vacancies on article III 
courts since 1994, when the vacancies created by the last comprehensive 
judgeship bill were still being filled. Judicial vacancies are nearing 
record levels, with 102 current vacancies and another 23 already 
announced.
  Justice Keenan comes to the Senate with an impressive amount of 
experience. She has served on each of the four levels of the Virginia 
State courts: General District Court, Circuit Court, Court of Appeals, 
and Supreme Court. She was admitted to the State Bar of Virginia in 
1974. She first took the bench at the age of 29, and fittingly has 
served for a judge for the last 29 years. Before serving as a judge, 
she worked as an attorney in private practice and as a local 
prosecutor.
  Justice Keenan has presided over an impressive amount of cases. She 
presided over several thousand cases of to judgment as a judge of the 
General District Court of Fairfax County, VA, which includes 
misdemeanors and smaller civil cases. As a circuit court judge, she 
presided over 600 cases that proceeded to verdict or judgment, and 
handled a wide range of criminal and civil cases, including both jury 
trials and bench trials. Finally, Justice Kennan now serves on the 
Virginia Supreme Court, a position she has held since 1991. I 
understand that under Virginia law, Supreme Court Justices serve 12 
year-terms, and then must seek reappointment by the State general 
assembly. Justice Keenan was unanimously reappointed by the general 
assembly.
  If confirmed, Justice Keenan would be the first woman from Virginia 
to serve on the Fourth Circuit.
  Justice Keenan earned her B.A. from Cornell University, her J.D. from 
the George Washington University Law School, and her L.L.M. from the 
University Of Virginia School Of Law.
  She received a unanimous rating of ``well qualified'' by the American 
Bar Association's Standing Committee on the Federal Judiciary, which is 
their highest rating.
  So I am pleased to join Senators Webb and Warner today on the floor 
in support of her nomination. I commend the Senators on the process 
they used to make recommendations to the White House for the Virginia 
vacancy.
  I hope the Senate will invoke cloture on this nomination today, and 
then take final action to confirm this nomination without any further 
delay.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, I ask unanimous consent that I be allowed 
to speak for up to 5 minutes, using part of the Republican time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, I rise to speak in support of the 
nomination of Justice Barbara Keenan to serve on the U.S. Court of 
Appeals for the Fourth Circuit.
  In the summer of 2009, my colleague and friend, Senator Webb, and I 
had the honor of interviewing a number of potential candidates to serve 
on the U.S. Court of Appeals for the Fourth Circuit. We were enormously 
impressed by the quality of all the candidates being considered. But 
one candidate rose to the top of the list because of her extensive 
experience, her judicial temperament, and her commitment to the law. 
That candidate was Justice Barbara Keenan.
  President Obama nominated Justice Keenan last September, and in late 
October the members of the Senate Judiciary Committee reported her 
nomination by unanimous consent.
  Justice Keenan's nomination has been on the Senate Calendar for 4 
months now. I believe it is time for this Chamber to consider the 
nomination and give Justice Keenan an up-or-down vote.
  Justice Keenan has served with distinction at every level of State 
court in Virginia. She has served as a justice on the Virginia Supreme 
Court since 1991. She also served on the Fairfax County General 
District Court, the Circuit Court of Fairfax County, and the Court of 
Appeals of Virginia. Every one of Virginia's bars, including the State 
bar and the State Bar Judicial Nominations Committee, have all 
recognized Justice Keenan and recommended her with their highest 
approval rating--either ``highly qualified'' or ``highly recommended.''
  I might also mention in passing that Justice Keenan was the first 
woman appointed to the bench in Virginia and was one of the original 10 
appointees to the Virginia Court of Appeals during its creation in 
1985. Lest any of my colleagues on either side of the aisle think this 
falls on the partisan divide that so often I think stymies this body, 
Justice Keenan not only has the support of Senator Webb and myself, but 
she has the support of our new Republican Governor, Governor McDonnell. 
Justice Keenan actually administered the oath of office to Governor 
McDonnell just 6 weeks ago.
  I am a new Member of this body, and perhaps I sometimes don't always 
understand the rules and process. However, it does seem strange to me 
that a justice who is as highly regarded and recommended as Justice 
Keenan--someone whom the President nominated months and months ago and 
someone who has received unanimous support in the Senate Judiciary 
Committee and someone who has the support not only of both Senators 
from Virginia but our Republican Governor--has had to wait so long to 
get a vote.
  So I am hopeful the Senate will act on this nomination. I look 
forward to casting my vote in support of Justice Barbara Keenan's 
nomination, and I encourage my colleagues on both sides of the aisle to 
vote for cloture so we can move to that very important vote and fill 
one more of these vacancies on a very important court in the Fourth 
Circuit.
  Mr. President, I thank you for the time. I yield the floor, and I 
note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that all 
remaining time be yielded back.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order and pursuant to rule 
XXII, the Chair lays before the Senate

[[Page 2249]]

the pending cloture motion, which the clerk will state.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Barbara Milano Keenan, of Virginia, to be a United States 
     Circuit Judge for the Fourth Circuit.
         Harry Reid, Herb Kohl, Sheldon Whitehouse, Richard J. 
           Durbin, Benjamin L. Cardin, Patty Murray, Mark Begich, 
           Kirsten E. Gillibrand, Mark R. Warner, Russell D. 
           Feingold, Al Franken, Roland W. Burris, Dianne 
           Feinstein, Patrick J. Leahy, Barbara Boxer, Charles E. 
           Schumer, Edward E. Kaufman.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Barbara Milano Keenan, of Virginia, to be a United States 
Circuit Judge for the Fourth Circuit shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Texas (Mrs. Hutchison).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 99, nays 0, as follows:

                       [Rollcall Vote No. 29 Ex.]

                                YEAS--99

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown (MA)
     Brown (OH)
     Brownback
     Bunning
     Burr
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--1

       
     Hutchison
       
  The PRESIDING OFFICER. On this vote, the yeas are 99, the nays are 0. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the vote on 
the confirmation of the nominee occur at 2:15 p.m. and that postcloture 
time be considered expired at that time; that upon confirmation, the 
motion to reconsider be considered made and laid upon the table, the 
President be immediately notified of the Senate's action, and the 
Senate then resume legislative session; further, after this unanimous 
consent request is granted, the Senate then stand in recess until 2:15 
p.m.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________