[Congressional Record (Bound Edition), Volume 157 (2011), Part 10]
[Senate]
[Pages 13891-13894]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JOHN ANDREW ROSS TO BE UNITED STATES DISTRICT JUDGE FOR 
                    THE EASTERN DISTRICT OF MISSOURI

                                 ______
                                 

 NOMINATION OF TIMOTHY M. CAIN TO BE UNITED STATES DISTRICT JUDGE FOR 
                     THE DISTRICT OF SOUTH CAROLINA

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will go into executive session and the clerk will report the 
nominations.
  The legislative clerk read the nominations of John Andrew Ross, of 
Missouri, to be United States District Judge and Timothy M. Cain, of 
South Carolina, to be United States District Judge.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Madam President, while I am pleased we are going to 
confirm the nominations today, they have been pending in the Senate for 
117 days for no reason or justification.
  More troubling, the time of vacancies in courts around the country 
have remained at or above 90 for 2 years. We should be acting on the 
other 27 judicial nominations reported favorably by the Judiciary 
Committee and ready for an up-or-down vote. Never during either 
Republican or Democratic administrations have I seen a time when 
nominations, approved unanimously by the Judiciary Committee, then wait 
month after month after month to be considered on the floor.
  Mr. President, President Obama came to Congress 2 weeks ago and made 
a compelling case for passing the American Jobs Act. The bill he asked 
us to pass includes bipartisan proposals that have received broad 
approval in the past from members of both parties, including extensions 
of tax relief for businesses to encourage hiring. They are consensus 
proposals we can enact today. We should answer the President's call and 
act right away to help get Americans back to work and grow the economy. 
With the unemployment rate at an unacceptable 9 percent, we in Congress 
should be doing all we can to help our fellow Americans.
  There is another unacceptable rate that we can help change to the 
benefit of all Americans. That is the judicial vacancy rate. It now 
stands at 11 percent, with 94 vacancies on Federal courts around the 
country. We can act today to bring down that rate dramatically by 
considering and confirming 29 judicial nominations approved by the 
Senate Judiciary Committee that are awaiting final Senate action. With 
very few exceptions, the judicial nominations now on the calendar are 
not controversial and could be confirmed today.
  Twenty-five of the 29 judicial nominations on the Senate Calendar 
were reported unanimously, and all but 1 of the 29 was reported with 
significant bipartisan support. All 28 of these consensus nominees have 
been favorably reported after a fair but thorough process, including an 
extensive background material on each nominee and the opportunity for 
all Senators on the committee, Democratic and Republican, to meet with 
and question the nominees. They have a strong commitment to the rule of 
law and a demonstrated faithfulness to the Constitution. These are the 
kinds of consensus nominees that in past years would have been 
considered and confirmed within days or weeks of being reported, not 
delayed for weeks and months.
  Certainly this was the practice we followed during President Bush's 
two terms, when consensus judicial nominees reported without any 
objection by the Judiciary Committee were confirmed an average of 28 
days after they were reported. In President Obama's nearly 3 years in 
office that wait time for unanimously reported nominees to be 
considered by the Senate has nearly tripled to 78 days, and that number 
continues to climb as the delays continue. It is taking nearly three 
times as long for nominees that are by every measure consensus, 
noncontroversial nominations. They are nearly all confirmed unanimously 
when the Senate is finally allowed to vote. We should act today and not 
delay further.
  The effects of these unnecessary delays have been dramatic and 
damaging. During the first years of the Bush and Clinton 
administrations, we were able to reduce vacancies significantly by 
confirming judges. The vacancies that had numbered over 100 early in 
those administrations were dramatically reduced by this juncture. By 
early September in the third year of the Bush administration judicial 
vacancies had been reduced to 54. By early September in the third year 
of the Clinton administration they had been reduced to 55. In contrast, 
the judicial vacancies now in September of the third year of the Obama 
administration stand at 94, with a vacancy rate of 11 percent, nearly 
double where it stood at this point in President Bush's third year.
  As the Congressional Research Service confirmed in a recent report, 
this is a historically high level of vacancies, and this is now the 
longest period of historically high vacancy rates on the Federal 
judiciary in the last 35 years.
  Even though Federal judicial vacancies have remained near or above 90 
for more than 2 years, the Senate's Republican leadership continues to 
delay votes on qualified, consensus nominations. Republican obstruction 
has led to a backlog of over two dozen judicial nominations pending on 
the Senate's Executive Calendar, nearly half of them to fill judicial 
emergency vacancies. No consensus nomination to fill a judicial vacancy 
should be left to languish on the calendar 1 day longer than necessary, 
let alone for months and months.
  Millions and millions of Americans are directly affected by this 
obstruction. More than half of all Americans--nearly 170 million--live 
in districts or circuits that have a vacancy that would be filled today 
if the Senate would act. More than half of all States--27--are served 
by courts that have nominations currently pending on the Senate's 
Executive Calendar. The Republican leadership should explain to the 
millions of Americans in these States why they will not vote. They 
should explain to the people of Louisiana, Maine, New York, Texas, 
Arkansas, Pennsylvania, Florida, Wyoming, Alaska, California, Delaware 
and Arizona why there continue to be vacancies on the Federal district 
courts in their States that could easily be filled if the Senate would 
vote on the President's qualified, consensus nominees. They should 
explain to the people of the many States that comprise the Second 
Circuit--Vermont's circuit--and the Fourth, Fifth and Ninth Circuits 
why those important Federal appeals courts are short on badly needed 
judges who could be confirmed today.
  These 170 million Americans should not have to wait more weeks and 
months for the Senate to fulfill its constitutional duty and ensure the 
ability of our Federal courts to provide justice to Americans around 
the country. They should not have to bear the brunt of having too few 
judges available to do the work of the Federal courts. At a time when 
judicial vacancies remain above 90, these needless delays perpetuate 
the judicial vacancies crisis that Chief Justice Roberts wrote of last 
December and that the President, the Attorney General, bar associations 
and chief judges around the country have urged us to join together to 
end. The Senate can and should be doing a better job working to ensure 
the ability of our Federal courts to provide justice to Americans 
across the country.
  Some have pointed to delays on judicial nominations in the past, real 
or imagined, to justify the continuing failure to take serious action 
to address the vacancies crisis. They recall selected instances where 
Democrats voted against some of President Bush's controversial nominees 
to justify the

[[Page 13892]]

across the board freeze on dozens of consensus nominees. They forget 
the progress we were able to make in those years to confirm judicial 
nominees and fill vacancies. We confirmed 100 judges in the 17 months I 
chaired the Judiciary Committee in 2001 and 2002. The Senate has yet to 
confirm 100 judges in this, the 32nd month of the Obama administration. 
This is another issue on which I hope that we can rise above what the 
President called ``the political circus'' to return to Senate's 
tradition practice of quickly considering and confirming consensus 
judicial nominations.
  At the end of President Bush's first 4 years in office, the Senate 
had confirmed 205 of his judicial nominees. We have a long way to go to 
reach that total before the end of next year. At this point in the 
Presidency of George W. Bush, 149 Federal circuit and district court 
judges had been confirmed: On September 19 of the third year of 
President Clinton's administration, 162 Federal circuit and district 
court judges had been confirmed. By comparison, although there are 29 
judicial nominees stalled and awaiting final consideration by the 
Senate--many of them stalled since May and June--we have yet to confirm 
even 100 of President Obama's circuit and district court nominees.
  I hope that we can come together to return to regular order in the 
consideration of nominations as we have on the Judiciary Committee. I 
have thanked the Judiciary Committee's ranking member, Senator 
Grassley, many times for his cooperation with me to make sure that the 
committee continues to make progress in the consideration of 
nominations. Regrettably, it has not been matched on the floor, where 
the refusal by Republican leadership to come to regular time agreements 
to consider nominations has put our progress--our positive action--at 
risk.
  The two judicial nominations we consider today are the kind of 
nominees we can and should consider more quickly.
  The nomination of Timothy Cain to fill a judicial emergency in the 
District of South Carolina has the support of both his Republican home 
State Senators--Senators Graham and DeMint. Senator Graham was a law 
partner with Judge Cain in the 1990s, and he has spoken to the 
committee with enthusiasm about Judge Cain's experience and 
qualifications. During his 25-year legal career, Judge Cain has served 
as a city and county attorney, as an assistant prosecutor and a public 
defender, and as a judge in family court for the past 11 years. He has 
been selected to sit by designation on the South Carolina Supreme Court 
on five occasions. Judge Cain has seen the practice of law from all 
sides, and he will be a strong addition to the Federal bench.
  John Ross is nominated to fill a judicial emergency in the Eastern 
District of Missouri and has the bipartisan support of his home State 
Senators. Judge Ross has served as a State judge in Missouri for over a 
decade. Since 2009, he has been the presiding judge for Missouri's 21st 
Judicial Circuit. He previously spent 9 years as the St. Louis County 
counselor, and 12 years as a State prosecutor, where he rose through 
the ranks to become the chief trial attorney in the St. Louis County 
Prosecutor's Office. Judge Ross has served the people of Missouri for 
his entire professional career. I am glad that the Senate will vote on 
his nomination today.
  Both of these nominees will fill judicial emergency vacancies. Both 
have the support of their home State Republican Senators. Both were 
reported by the Senate Judiciary Committee unanimously, without any 
objection from a single Republican or Democratic member of the 
committee. They are both by any measure consensus nominees. Yet, their 
nominations have been pending on the Senate's Executive Calendar for 
117 days, since May 26, with no reason or justification given for the 
delay.
  While I am pleased we will consider these two nominations today and 
confirm them, this has taken far too long. More troubling still, these 
nominations are only 2 of the 29 judicial nominations reported 
favorably by the committee and ready for final Senate action. Despite a 
serious judicial vacancies crisis on Federal courts around the country, 
where vacancies have remained at or above 90 for over 2 years, Senate 
Republicans refuse to consent to consider nominations more efficiently. 
I hope that this month Senators will finally join together to act to 
bring down the excessive number of vacancies that have persisted on 
Federal courts throughout the Nation for far too long. We can and must 
do better for the nearly 170 million Americans being made to suffer by 
these unnecessary delays.


                     Vermonters Helping Vermonters

  Mr. President, I will continue because I am not taking time from 
anybody on this. The time has been reserved to talk some more, to talk 
about what has been happening in Vermont.
  I have spoken many times about my native State and what we went 
through with Tropical Storm Irene.
  I was born in Vermont. My family came to Vermont in the 1800s. 
Nothing in my lifetime has approached the devastation we see in our 
State. Vermonters have continued to struggle to regain a sense of 
normalcy. Bridges, railroads, and roads remain damaged or wiped out. 
Those many homes, businesses, and schools that were not entirely washed 
away are in need of profound repairs. Farmers are struggling to salvage 
what they can of their livelihoods.
  It is late September. In Vermont, October can bring snow. But amid 
the din and destruction of the debris of this horrific natural disaster 
come hundreds of heartening stories of either things I have seen 
firsthand or I have heard about Vermonters rising to the occasion to 
help their neighbors and friends, even strangers, to mobilize to 
recover.
  I saw a man shoveling out a store. I asked him if it was his store. 
He said: No. I said: Do you live here? He said: No; I live two towns 
over. I said: Do you know the store owner? He said: No. But, he said, I 
wasn't damaged. I wasn't hurt; he was. I would hope that if I was hurt, 
somebody would help me.
  Vermonters are known for our sense of community. We are known for our 
plentiful determination. Our State's people have proven their fortitude 
tenfold in the aftermath of this disaster.
  The Weston Playhouse, a renowned playhouse, where actors from around 
the country come in the summertime, had half their theater performance 
stage wiped out by the floods. The theater group stripped the entire 
playhouse, set up a temporary stage so they could perform their 
upcoming show.
  The Town Meeting House in Pittsfield has been converted into a 
medical clinic. The Air National Guard dropped more than 14,000 Meals 
Ready to Eat in the town so that those stranded had enough food. In 
addition to those meals, many others have donated meat and other goods 
so there is plenty of food to go around. Schools have fundraised to 
help provide free hot breakfasts to students, and Vermonters around the 
State have opened their homes to those who have lost theirs during the 
storm.
  Various fundraisers, including some college students who are 
classmates of my son, have a group called Phish. They did their first 
live concert in years and they raised over $1 million--just one thing 
after another. But then, there are also bake sales and car washes to 
raise money.
  One way where the indomitable Vermont spirit has endured is through 
the remarkable efforts of Vermont students and schools. Schools have 
started. I know; I have grandchildren going to school there. The 
schools faced tremendous challenges to open their doors just days after 
Irene descended on us. Many had to delay opening for a few days because 
the school buildings were serving as community centers for families who 
had lost their homes and children who had lost everything in the storm. 
But let me show a couple examples of students making the most.
  Look at this New York Times picture. This is the Barstow Memorial 
School students in Chittenden. Chittenden is actually in Rutland 
County, down in the southwest part of

[[Page 13893]]

our State. They used this trail to navigate on their way to school. 
They were going to go to school. They were cut off. There was no road 
to go to school, to get to the schoolbus. The parents of these children 
said: They are going to school.
  Look at the mud on this child's legs. Look at the people. Look at 
them walking, carrying things. ``We are going to school.''
  The washout on Route 4 took weeks to fix, so these students slogged 
along a muddy trail to meet vans and cars half a mile away, whether it 
was raining or dark or cold or anything else, and these cars carried 
the students to buses to take them the rest of the way to school. 
Community members helped chaperone the children on the trail. The whole 
community turned out. They stood there and they passed out snacks and 
refreshments.
  When these students arrived at school, they were caked with mud. They 
didn't look like the children who normally come to school, but they 
were proud of their twice-a-day routine. They made it to school.
  Moretown Elementary. This is one town over from where I live. I had a 
grandmother born there. They fared worse than many schools in the 
State. The buildings sustained damage and flooding overtook the 
school's septic system. The principal and teachers came together. They 
organized a series of field trips to get the kids out of the devastated 
town so they could continue in their studies. They visited Shelburne 
Farms and Montshire Museum, just to name two venues. Last week, with 
the school still closed, they met. They met. Look at that. The baseball 
field was covered by donated tents, as seen in this photo from the Web 
site of the Vermont Public Radio, where teachers held classes. The 
school's offices operated from popup trailers. Kids took well to their 
new school schedule, and teachers there are glad to provide the support 
they need.
  The children of Vermont and their families and teachers are doing 
their utmost to make their way through these extremely difficult times. 
But these inventive measures are not permanent solutions. Vermonters 
are doing all they can and more to help each other recover, which makes 
it all the more dismaying that some in Congress seemed determined to 
play politics with disaster relief. Millions of American families and 
businesses, not just in Vermont but across the country have been 
devastated by an unprecedented series of floods, tornadoes, hurricanes, 
wildfires and other natural disasters this year, reaching into nearly 
every single State of our Union. This is no time to dawdle or to ignore 
the urgent needs of fellow Americans. We are one Nation, and until now 
we have willingly and generously come to the aid of our fellow 
Americans in times of need.
  This is the time to help our fellow Americans who have suffered 
tremendous losses. Many of our states will take years to recover. I am 
pleased the Senate passed this essential bill last week, and I urge the 
House to send this emergency disaster relief bill to the President, 
without further delay.
  We Americans are spending hundreds of billions of dollars to rebuild 
Iraq and Afghanistan. Let's spend this money amount to rebuild America 
for Americans.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Casey). The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, we are on judicial nominees; is that 
right?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. GRASSLEY. I would like to, first of all, yield such time as he 
might consume, before I speak, to the Senator from South Carolina so he 
can speak about one of the judges that are up for nomination.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. I wish to thank you and Senator Leahy for bringing the 
nomination to the floor.
  Very quickly, colleagues, this is a confirmation vote for Timothy 
Cain to be a Federal judge in South Carolina. Tim was my law partner, 
so I will just put my biases right out on the table.
  He has been a family court judge since 2000 in the Tenth Judicial 
Circuit, dealing with the most complicated and emotional issues in the 
law, and we will not find one person who has practiced before Tim Cain 
as a lawyer who has anything other than high praise for the way he 
handles himself.
  Tim has been a prosecutor, a public defender. He was assistant county 
attorney. He has a very distinguished record in the law. But, more 
important, he is one of the most decent people I have ever met. His 
wife Renee and son Martin are the most charming, decent people one 
could ever hope to meet. I thank President Obama for nominating him. I 
appreciate the support from Senator Leahy and Senator Grassley working 
this nomination through the process.
  This will be a big win for the State of South Carolina and all who 
come before Judge Cain. He is a total package of intellect, character, 
integrity, common sense, judicial disposition and demeanor, and I could 
not be more proud. This is probably one of the most satisfying moments 
I have had as a Senator, to get up and recommend to my colleagues the 
approval of Tim Cain to be a Federal judge in the State of South 
Carolina. I just can't wait to see him take over in our courts and 
administer justice.
  So I say to Senator Grassley and Senator Leahy, thank you both.
  I yield the floor.
  Mr. GRASSLEY. Mr. President, today the Senate will vote on the 
nomination of John Andrew Ross to be U.S. district judge for the 
Eastern District of Missouri, and also Timothy M. Cain, to be district 
judge for the District of South Carolina.
  Both seats have been deemed to be judicial emergencies. With these 
votes, we have confirmed 67 article 3 judicial nominees during this 
Congress. Of these, 23 have been for such judicial emergency type 
districts. I am pleased that we continue to have great progress in 
lessening the burden of our overworked courts, particularly 
concentrating upon judicial emergencies.
  I am somewhat surprised in the delay in bringing these votes we are 
going to have today to the full Senate, at the majority leader's 
request.
  Senate Republicans cleared these votes nearly 2 weeks ago, with the 
anticipation that the Senate would vote on these nominees last Monday, 
September 12. So I hope everyone understands these nominees could have 
been confirmed 8 days ago. It was not the Republicans then holding up 
these for the last 8 days.
  As I noted, we continue to make great progress in proceeding to 
President Obama's judicial nominees. These votes today are somewhat of 
a milestone. They are the 99th and 100th confirmation of President 
Obama's judicial nominees. As of today the Senate has confirmed 63 
percent of President Obama's judicial nominees since the beginning of 
his Presidency.
  Earlier today the Senate Judiciary Committee held its 14th nomination 
hearing. We have now heard from 82 percent of President Obama's 
judicial nominees this Congress. At this point in the 108th Congress, 
only 79 percent of President Bush's judicial nominees had received a 
hearing. We have also reported 69 percent of President Obama's judicial 
nominees compared to 67 percent of President Bush's.
  I am pleased with the progress and will continue to move forward with 
consensus nominees.
  Now I would like to say a few words about these two nominees.
  John Ross is nominated to be U.S. district judge for the Eastern 
District of Missouri. He presently serves as a circuit judge for the 
21st Judicial District in Missouri. Appointed to that position by the 
Governor in January 2000, Judge Ross was retained by the voters in 
Missouri in the retention elections of 2002 and 2008. During his 
tenure, Judge Ross was elected assistant presiding judge by his 
judicial colleagues in that circuit and served in that office from 2005 
to 2009. He was subsequently elected as presiding judge and has served 
in that capacity from 2009 until now.
  Prior to his appointment to the State bench, Judge Ross served as 
county counselor for St. Louis County and in

[[Page 13894]]

the St. Louis County's Prosecuting Attorney's Office. He is a graduate 
of Emory University and the Emory School of Law. The American Bar 
Association Standing Committee on the Federal Judiciary unanimously 
rated Judge Ross ``well qualified.''
  Timothy M. Cain is nominated to be U.S. district judge of South 
Carolina. Judge Cain presently serves as a South Carolina Family Court 
judge in the Tenth Judicial Circuit. The South Carolina General 
Assembly elected him to that position in 2000 and reelected him in 2004 
and 2010. In 2005 the chief justice of South Carolina's Supreme Court 
appointed Judge Cain to serve as the chief administrative judge for the 
Family Court of the Tenth Judicial Circuit. By designation of the chief 
justice, Judge Cain also served as acting associate justice for the 
South Carolina Supreme Court on several occasions.
  Prior to his judicial service, Judge Cain had a distinguished private 
practice in South Carolina. He maintained a general practice and 
assisted in representing several local governments and municipal 
clients. During his years of private practice he also served the public 
sector. Judge Cain served as a part-time assistant public defender with 
the Oconee Defender Corporation in that State.
  From 1988 to 1990 he served as assistant solicitor general for the 
Solicitor's Office of the Tenth Judicial Circuit, where he represented 
South Carolina in prosecuting child abuse and neglect cases and various 
criminal cases.
  In 1992 the county supervisor appointed Judge Cain as county attorney 
for that home county.
  He is a graduate from the University of South Carolina and the 
University of South Carolina School of Law. The ABA Standing Committee 
on the Federal Judiciary unanimously rated Judge Cain ``qualified.''
  I congratulate both nominees and yield the floor.
  The PRESIDING OFFICER. Under the previous order, Calendar No. 169 is 
confirmed.
  The PRESIDING OFFICER. Under the previous order, the question is, 
Will the Senate advise and consent to the nomination of Timothy M. 
Cain, of South Carolina, to be United States District Judge for the 
District of South Carolina?
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New Mexico (Mr. 
Bingaman) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 140 Ex.]

                                YEAS--99

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (WI)
     Johnson (SD)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--1

       
     Bingaman
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid on the table.
  The President shall be immediately notified of the Senate's action.

                          ____________________