[Congressional Record (Bound Edition), Volume 157 (2011), Part 2]
[Senate]
[Pages 1633-1639]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JAMES E. GRAVES, JR., TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE FIFTH CIRCUIT

                                 ______
                                 

 NOMINATION OF EDWARD J. DAVILA TO BE UNITED STATES DISTRICT JUDGE FOR 
                  THE NORTHERN DISTRICT OF CALIFORNIA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations, 
which the clerk will report.
  The bill clerk read the nominations of James E. Graves, Jr., of 
Mississippi, to be United States Circuit Judge for the Fifth Circuit 
and Edward J. Davila, of California, to be United States District Judge 
for the Northern District of California.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
of debate with respect to the nominations, with the time equally 
divided in the usual form.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I will not use all my time. I do want to 
note that by starting the week considering two of President Obama's 
judicial nominations, the Senate is building on the progress we began 
to make last week. With judicial vacancies in this country remaining 
over 100, nearly half of them judicial emergencies, the Senate's action 
on the two outstanding nominees we will consider is much needed. I 
thank the majority leader for scheduling the time. I thank the 
Republican leader for his cooperation.
  James Graves of Mississippi is a justice of the Mississippi Supreme 
Court and has been a judge in Mississippi for 20 years. President Obama 
has nominated Justice Graves to fill a judicial emergency vacancy on 
the Fifth Circuit. When he is confirmed, he will be the first African 
American from Mississippi to serve on the United States Court of 
Appeals for the Fifth Circuit.
  Edward Davila has been a California State trial judge for 10 years. 
For 20 years before his service on the bench, he was a deputy public 
defender and worked in private practice. President Obama nominated 
Judge Davila to fill a judicial emergency vacancy in the Northern 
District of California.
  Both of these nominations were reported unanimously by the Judiciary 
Committee this year. Both also had been reported by the Judiciary 
Committee unanimously last year. We have reported them out twice 
unanimously. It is time now to vote on them. They were among the 19 
judicial nominees we voted out unanimously and were ready to be 
confirmed by the Senate last year before we adjourned. When there was 
objection to proceeding last year, the vacancies persisted, the 
President had to renominate them and the Judiciary committee had to 
reconsider their nominations. We passed them out unanimously from the 
committee. I expect the Senate will confirm both tonight and will do so 
unanimously.
  Both have the support of their home State Senators. I will begin with 
Justice Graves. Both Senator Cochran and Senator Wicker have worked 
with the President and me in connection with the nomination of Justice 
Graves. Both have been enthusiastic in their support of Justice Graves. 
The Governor of Mississippi, Governor Barbour, came up to me a few days 
ago at an event and urged me to move forward with the nomination of 
Justice Graves. I told him I have been ready to move forward on this 
nomination since last year. This is an example of a nominee with 
bipartisan support. Senator Feinstein and Senator Boxer have worked 
with the President and with me in connection with the nomination of 
Judge Davila.
  I hope the votes we had last week and the votes we are having tonight 
signal the return to regular order that I have been seeking for months. 
Nominees who have been voted out unanimously by every Republican and 
every Democrat on the Senate Judiciary Committee ought to be brought up 
for a vote on the Senate floor without unnecessary delays. My 
experience over the last 37 years is that when you have nominations 
like these, they almost always also go through unanimously in the full 
Senate. These are two of the eight judicial nominees unanimously 
reported by the Judiciary Committee who are ready for final 
consideration and final action by the Senate. I hope the other six 
judicial nominations to fill vacancies in Georgia, California, North 
Carolina, and the District of Columbia will all be considered before 
the President's Day recess.
  As I indicated before, when these two nominees are confirmed, there 
will still be 100 Federal judicial vacancies around the country. That 
is too many, and they have persisted for too long. If you are a 
litigant and trying to get a case heard, you do not care whether your 
judge was nominated by a Republican or a Democratic President, you just 
want to make sure there is a judge there so your case can be heard. All 
over the country, however, people cannot get their cases heard because 
of the judicial vacancies.
  That is why Chief Justice Roberts, Attorney General Holder, White 
House Counsel Bob Bauer, and many others, including the President of 
the United States, have spoken out and urged the Senate to act. That is 
why the front page story in the Washington Post last Tuesday bore the 
headline: ``Vacancies on Federal Bench Hit Crises Point.'' As that 
report stated, vacancies are ``increasing workloads dramatically and 
delaying trials in some of the Nation's Federal courts.''
  Mr. President, I ask unanimous consent to have printed in the Record 
at the conclusion of my statement a copy of the Washington Post report 
on the judicial vacancies crises.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Mr. President, nearly one in eight Federal judgeships 
across our Nation--east to west, north to south--are vacant. That puts 
at risk, as I mentioned earlier, the ability of all Americans to get a 
fair hearing in court. The real price for these unnecessary delays 
falls upon judges who are already overburdened with cases, unable to 
put the time into them they should, and the American people who depend 
on our courts, and are being denied hearings and justice in a timely 
fashion.
  Regrettably, the progress we made during the first two years the Bush 
administration has not been duplicated and the progress we made over 
the eight years from 2001 to 2009 to reduce judicial vacancies from 110 
to a low of 34 was reversed. The vacancy rate we reduced from 10 
percent at the end of President Clinton's term to less than four 
percent in 2008 has now risen back to over 10 percent. In contrast to 
the sharp reduction in vacancies during President Bush's first 2 years 
in office, when the Democratically-controlled Senate confirmed 100 of 
his judicial nominations, only 60 of President Obama's judicial 
nominations were allowed to be considered and confirmed during his 
first two years in office. We have not kept up with the rate of 
attrition, let alone brought the vacancies down. Judges die and judges 
retire and there are additional vacancies created all the time. By now, 
those vacancies should have been cut in half. Instead, they continue to 
hover above 100.
  I believe the Senate can do better. In fact, I believe the Senate has 
to do better. The Nation cannot afford further delays in the Senate 
taking action on the nominations pending before it. Judicial vacancies 
on courts throughout the country hinder the Federal judiciary's ability 
to fulfill its constitutional role. They create a backlog of cases that 
prevents people from having their day in court. That is unacceptable.
  We can consider and confirm this President's nominations to the 
Federal bench in a timely manner. President Obama has worked with 
Democratic and Republican home state Senators to identify superbly 
qualified consensus nominations. None of the nominations on the 
Executive Calendar are controversial. Half of them have Republican home 
state Senators who support them, like the nomination of Justice

[[Page 1634]]

Graves we consider today. All have a strong commitment to the rule of 
law and a demonstrated faithfulness to the Constitution.
  I want to thank Senator Grassley, the Judiciary Committee's ranking 
member, and all the members of the Judiciary Committee for working with 
me at the start of this Congress to establish a fair and timely 
schedule for holding confirmation hearings and considering nominations 
in committee.
  Again, I would note that during President Bush's first term, in his 
first four tumultuous years in office, we proceeded to confirm 205 of 
his judicial nominations. We confirmed 100 of those during the 17 
months when I was chairman during President Bush's first two years in 
office. Democrats were in charge and I was the chairman. So we have 
shown that we are willing to cooperate. In contrast, now in President 
Obama's third year in office, the Senate has only been allowed to 
consider 65 of his Federal circuit and district court nominees. We 
remain well short of the benchmark we set during the Bush 
administration. We have to do better. When we approach it, we can 
reduce vacancies of historically high levels at which they have 
remained throughout these first three years of the Obama administration 
to the historically low level we reached toward the end of the Bush 
administration.
  The nominations we consider today both demonstrate President Obama's 
commitment to working with home state Senators to select well qualified 
nominees. Justice Graves, nominated to fill an emergency vacancy on the 
Fifth Circuit, is currently the only African American on the 
Mississippi Supreme Court. When confirmed, he will be the first African 
American from Mississippi to serve on the Fifth Circuit and only the 
second African American in the circuit's history. His confirmation will 
be a significant milestone after years of broken promises.
  President Obama's commitment to increase diversity on the Federal 
bench helps ensure that the words ``equal justice under law,'' 
inscribed in Vermont marble over the entrance to the Supreme Court, is 
a reality and that justice is rendered fairly and impartially. I thank 
Senator Cochran and Senator Wicker for their strong support of the 
nomination of Justice Graves. His nomination received a rating of 
unanimously well qualified from the ABA's Standing Committee on the 
Federal Judiciary, its highest possible rating. He will make an 
excellent addition to the Fifth Circuit.
  Judge Davila has been nominated to fill an emergency vacancy on the 
Northern District of California. Currently a judge on the Superior 
Court of California, Judge Davila previously spent 20 years as a trial 
lawyer, first as a deputy public defender in the Santa Clara County 
Public Defender's Office and then as a lawyer in private practice. He 
also has taught trial advocacy course sessions at Stanford Law School, 
Santa Clara University School of Law, and the University of San 
Francisco School of Law. If confirmed, Judge Davila will become the 
first Latino to take the Federal bench in the Bay Area in more than 15 
years. He has the strong support of his two home state Senators, 
Senator Feinstein and Senator Boxer. I am glad his nomination will 
finally be considered by the Senate.
  I have often said that the 100 of us in the Senate stand in the shoes 
of over 300 million Americans. We owe it to them to do our 
constitutional duty of voting on the President's nominations to be 
Federal judges. We owe it to them to make sure that hard-working 
Americans are able to have their cases heard in our Federal courts.
  Again, I commend both the majority leader and the Republican leader 
for moving forward.
  Mr. President, I yield the floor, and I reserve the remainder of my 
time and my voice.

                               Exhibit 1

                [From the Washington Post, Feb. 8, 2011]

            Federal Judicial Vacancies Reaching Crisis Point

                 (By Jerry Markon and Shailagh Murray)

       Federal judges have been retiring at a rate of one per week 
     this year, driving up vacancies that have nearly doubled 
     since President Obama took office. The departures are 
     increasing workloads dramatically and delaying trials in some 
     of the nation's federal courts.
       The crisis is most acute along the southwestern border, 
     where immigration and drug cases have overwhelmed court 
     officials. Arizona recently declared a judicial emergency, 
     extending the deadline to put defendants on trial. The three 
     judges in Tucson, the site of last month's shooting rampage, 
     are handling about 1,200 criminal cases apiece.
       ``It's a dire situation,'' said Roslyn O. Silver, the 
     state's chief judge.
       In central Illinois, three of the four judgeships remain 
     vacant after two of President Obama's nominees did not get a 
     vote on the Senate floor.
       Chief Judge Michael McCuskey said he is commuting 90 miles 
     between Urbana and Springfield and relying on two 81-year-old 
     ``senior'' judges to fill the gap. ``I had a heart attack six 
     years ago, and my cardiologist told me recently, `You need to 
     reduce your stress,''' he said. ``I told him only the U.S. 
     Senate can reduce my stress.''
       Since Obama took office, federal judicial vacancies have 
     risen steadily as dozens of judges have left without being 
     replaced by the president's nominees. Experts blame 
     Republican delaying tactics, slow White House nominations and 
     a dysfunctional Senate confirmation system. Six judges have 
     retired in the past six weeks alone.
       Senate Republicans and the White House are vowing to work 
     together to set aside the divisions that have slowed 
     confirmations, and the Senate on Monday approved Obama 
     nominees for judgeships in Arkansas, Oregon and Texas. Eight 
     more nominees are expected to receive votes in the coming 
     weeks.
       If the backlog eases, Obama will have the chance to appoint 
     dozens of judges who might gradually reverse what many 
     consider a conservative drift in the lower federal courts 
     under the George W. Bush administration.
       Even with Obama's difficulties in the past two years, his 
     appointees have given Democrats control of two of the 
     nation's 13 federal circuits, including the influential U.S. 
     Court of Appeals for the 4th Circuit in Richmond, long a 
     conservative bastion.
       And about three-fourths of his appointees have been women 
     or minorities, a historically high rate aimed at diversifying 
     a judiciary that is made up of nearly 60 percent white men.
       ``It's fair to say that the Obama administration has had an 
     impact on the federal courts and that at the end of this 
     Congress, I believe that impact will be reinforced,'' said 
     Sheldon Goldman, an expert on judicial selection at the 
     University of Massachusetts at Amherst.
       Obama's opportunity is brief, however, because the 
     presidential election season will ramp up by next year. And 
     even with the current promises of bipartisanship, Senate 
     rules allow individual senators to hold up nominations.
       There are now 101 vacancies among the nation's 857 district 
     and circuit judgeships, with 46 classified as judicial 
     emergencies in which courts are struggling to keep up with 
     the workload. At least 15 more vacancies are expected this 
     year, according to the administrative office of the U.S. 
     Courts. When Obama took office in 2009, 54 judgeships were 
     open.
       Most of the departing jurists have taken what is known as 
     senior status--A semi-retirement in which they receive full 
     pay but can take a reduced workload and are not considered 
     active members of the court. But court officials say the 
     increased work, heavier caseloads and lack of pay increases 
     are prompting more judges to leave the bench entirely.
       The effect is most visible in civil cases, with delays of 
     up to three years in resolving discrimination claims, 
     corporate disputes and other lawsuits.
       ``Ultimately, I think people will lose faith in the rule of 
     law,'' said Alex Kozinski, chief judge of the U.S. Court of 
     Appeals for the 9th Circuit in California. ``We as a nation 
     believe that if you have a dispute, you go to court and 
     within a reasonable period of time, you get a decision.''
       Kozinski, who oversees the federal court in the 
     Commonwealth of the Northern Mariana Islands, a U.S. 
     territory, said the government has spent at least $250,000 to 
     fly visiting judges to the island of Saipan, where the sole 
     judge retired last year.
       In Arizona, the number of criminal cases has increased 65 
     percent since 2008, while three of the 13 federal judgeships 
     are vacant. Former chief judge John M. Roll was working on 
     the judicial emergency declaration when he was killed during 
     last month's shootings in Tucson.
       Beyond the practical need for judges, the political stakes 
     are high. The vast majority of federal cases are dispensed 
     through the district and circuit courts of appeal, with the 
     Supreme Court hearing fewer than 100 cases each year.
       And control of the influential appellate courts tends to 
     shift with the party in power: By the time Bush left office, 
     his appointees had given Republican nominees a majority of 
     about 56 percent on those bodies.
       Party affiliation is not a perfect predictor of a judge's 
     behavior, but studies have shown that Democratic and 
     Republican nominees

[[Page 1635]]

     vote differently on some ideologically charged issues, such 
     as abortion, gay rights and capital punishment.
       When Obama took office, experts predicted he would flip the 
     Republican appellate court majority in his first term. But in 
     2009 and 2010, the administration nominated 103 district and 
     circuit judges, compared with 129 during Bush's first two 
     years and 140 in President Bill Clinton's first two years, 
     said Russell Wheeler, a Brookings Institution scholar who 
     studies federal courts.
       White House counsel Bob Bauer attributed the slow start to 
     the administration's large legislative agenda, two time-
     consuming Supreme Court vacancies and an increasingly 
     complicated background review process for nominees.
       ``We have made progress,'' Bauer added, pointing out that 
     the pace of nominees picked up significantly last year. But 
     those nominees faced a tough road in the Senate, as 
     Republicans repeatedly exercised their right to ``hold over'' 
     nominees before sending them to the floor.
       The 60 nominees confirmed in Obama's first two years in 
     office made up the lowest number in 35 years, according to 
     the Senate Judiciary Committee.
       Still, Obama has been putting his stamp on the courts. When 
     he took office, Democratic appointees had small majorities on 
     two appeals courts--the New York-based 2nd Circuit and the 
     9th Circuit. Obama's nominees have also given Democrats 
     control of the 4th Circuit and the 3rd Circuit, which covers 
     Pennsylvania, New Jersey and Delaware.
       The 4th Circuit is an influential voice on national 
     security and one of the appellate courts expected to hear 
     challenges to the health-care overhaul law. It has a 9-5 
     Democratic majority, because of four Obama appointees.
       ``That's almost unimaginable,'' said Curt Levey, executive 
     director of the conservative Committee for Justice. ``When I 
     first went to law school, that was the one circuit you knew 
     was conservative.''
       If the Senate approves the 48 pending White House judicial 
     nominations, the circuits would be about evenly divided 
     between Democratic and Republican nominees, according to 
     Wheeler's analysis. ``This Congress has the power to shift 
     the balance rather substantially,'' he said.
       Saying the courts face ``a severe problem,'' Bauer vowed 
     that the White House will move nominees ``at a very steady 
     clip. . . . We will use all the resources at our disposal to 
     bring attention to the issue and work on a bipartisan 
     basis.''
       Senate Majority Leader Harry M. Reid (D-Nev.) and Minority 
     Leader Mitch McConnell (R-Ky.) struck a ``gentleman's 
     agreement'' in January to quash many of the procedural 
     tactics that have slowed nominations.
       ``We'll be discussing with Senator Reid how to begin moving 
     them in an orderly fashion,'' said Don Stewart, a spokesman 
     for McConnell.
       Liberal groups, which have blasted what they call 
     Republican obstructionism and pushed the White House to focus 
     more on judges, said this year will be key.
       ``This is really a critical time for the legacy this 
     president will be able to create on the federal judiciary,'' 
     said Marge Baker, an expert on judicial selection at People 
     for the American Way. ``We have an opportunity now, and we 
     have to take advantage of it.''

  The PRESIDING OFFICER. The Senator from Tennessee.


                               The Budget

  Mr. CORKER. Mr. President, I thank the Senator from Vermont, and I 
will be very brief.
  I know today the President has put forth the administration's 
proposal on the budget, and a lot of people on both sides of the aisle 
have spent a tremendous amount of time over the course of this last 
year----
  Mr. LEAHY. Would the Senator yield for a moment? I assume the Senator 
is speaking on the time reserved for the Republican side.
  Mr. CORKER. That is correct, Mr. President, and I thank the Senator 
from Vermont for being so fastidious.
  Back to what I was talking about. I know a lot of people on both 
sides of the aisle have spent a great deal of time looking at ways for 
us to lessen, if not close, the tremendous amount of the deficit we 
have in this country. I think everybody understands what a threat this 
is to our economic security--candidly, to, I believe, our national 
security--and I think many of us have paid close attention to what has 
happened to other countries in this type of situation. There is a 
strong sense on both sides of the aisle, and becoming even stronger, 
that this is an issue we as a country have to deal with.
  What is unique about the issue of this fiscal deficit our country has 
is that it is something totally within our hands. In other words, we 
can deal with this. This is not like some of the situations we deal 
with in Afghanistan or other places, where it takes others, if you 
will, working with us to ensure our efforts there are successful. This 
is something we as a Congress can solve. Again, the economy requires 
private sector investment and people doing work outside of this body to 
create the kind of prosperity we would like to see. But this is totally 
within our control.
  So, Mr. President, I really do try to look at the bright side of 
things. On the other hand, I was disappointed to see the President's 
budget today and the lack of urgency that was displayed there and the 
lack of concern. I think what that means for those of us in this body 
and in the House who are going to have to--as we should--deal with this 
issue, it is much more difficult when dealing with a national crisis 
not to have the administration pulling along with you. It is my hope, 
even though I think the President did miss an opportunity to lead on 
this issue, that over the course of the next several months he will 
come to the table and deal with this issue in a responsible way with 
both the House and Senate.
  I know the House is wrestling with these issues right now. My guess 
is that by the time they get ready for recess this weekend, they will 
send over something that deals with some cuts in discretionary 
spending. I think we all know we have to deal with the entire budget if 
we are actually going to make the type of headway all of us know needs 
to be made. But I do hope what we will do this spring, early on, is go 
ahead and vote to pass on some very large reductions in spending. I 
hope we will pass something like the Cap Act that Claire McCaskill and 
I have cosponsored, which takes us from where we are in spending 
relative to our country's economic output down to the 40-year average.
  I would think most people in this body would consider that to be a 
reasonable approach over a 10-year period that would be a straitjacket 
on Congress to ensure that we actually make those cuts. So those are 
two steps that need to occur, and it is my hope the administration, 
after putting forth what has been put forth, will join us in this 
effort.
  Mr. President, I think all of us know that in order to deal with the 
big issues of this country, it is going to take the executive branch, 
the House, and the Senate. We have divided government, but this is a 
perfect opportunity for us, as a country, to deal with this huge issue 
that threatens certainly the future of the young people sitting before 
me, but threatens our country's economic security and our national 
security.
  So, Mr. President, I thank you for the time. I hope all of us will 
deal with this budget in a serious, sober, and responsible manner. I 
think we have several months over which we have a tremendous 
opportunity to come together and do the right thing as it relates to 
our country's economic and fiscal situation.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, what is the order right now?
  The PRESIDING OFFICER. The Senate is currently debating two 
nominations.
  Mrs. BOXER. Is it appropriate that I speak on one of those 
nominations but also make some comments about the budget?
  The PRESIDING OFFICER. The Senator is recognized.
  Mrs. BOXER. Mr. President, I am very happy today to know that we are 
about to cast a vote on Edward Davila, nominee for the U.S. District 
Court for the Northern District of California. This is a wonderful 
nominee, and he deserves this up-or-down vote. I am convinced he is 
going to get an overwhelming vote, and I am going to speak to that in a 
moment. But the Senator from Tennessee was critical of President 
Obama's budget, and I wanted to just make a response to that.
  The Senator from Tennessee is not the only Republican to criticize 
President Obama's budget. They are all reading out of the same 
playbook. I just have to say that while no one agrees with everything 
in that budget--I certainly don't--the basis of the budget is critical, 
and this is the basis of the budget: The President is addressing the 
deficit in a very responsible

[[Page 1636]]

way--freezing domestic discretionary spending--very tough, very tough--
cutting billions and billions and billions of dollars of red ink while 
not jeopardizing the economic recovery that we are in the midst of.
  To me, it is very interesting because I had the privilege of being in 
this body the last time we balanced the budget. As far as I know, I 
don't recall any Republicans voting for Bill Clinton's budget. Maybe 
there were one or two, I don't recall. But that budget was in balance 
and we went into surplus. Frankly, we learned how to do it then.
  What did we learn? We learned that when we are facing a crisis like 
this--a budget deficit that is growing too fast and an economic 
recovery that we don't want to disrupt--we have to be responsible. We 
don't take a meat ax to this economy and cut things just for the sake 
of telling the American people we met a certain number. Every billion 
dollars of cuts means real people with real jobs.
  Then the Republicans are criticizing our President for investing in 
the infrastructure of this country. Mr. President, you and I know we 
can't have a great nation if we can't move goods, if we can't move 
people, if people are stuck in traffic, if we have sewer systems that 
are overflowing, water systems that are antiquated, and we have 
millions of people who can't get access to broadband and the Internet. 
We all know the value of that.
  So I would say to my Republican friends: Please don't be against 
something simply because our President is for it. He is reaching out 
his hand. Don't give him the back of your hand. I am very optimistic we 
can work together. I am certainly pleased the President has reached out 
his hand, and Republicans and Democrats have reached out their hands, 
too, in this Congress.
  I am pleased to say on the highway bill I am working very closely 
with Mr. Mica, who is the chairman of the Transportation and 
Infrastructure Committee in the House. I am working with Jim Inhofe, my 
friend and ranking member of the committee in the Senate. So let's, in 
our rhetoric, not each go to our corners. Let's welcome this 
President's budget. Let's take a look at it, let's ask economists what 
the impact is of cutting so much that we derail our economic recovery.
  We can do this. We did it under Bill Clinton. We balanced the budget 
and created 23 million jobs. Under George W. Bush, that was gone in 5 
minutes--tax cuts to the people who didn't need it--and with it a 
horrible economic recession, which this President--President Obama--
stepped to the plate and dealt with, without much help from the other 
side. A couple helped us, yes. And I am preparing a little presentation 
on what we did and what was the impact. We had capitalism on the brink 
of failure, and this President had the courage to deal with it.
  There were calls from the Republican side of the aisle to nationalize 
the banks. I remember that. President Obama said: No way. We are not 
going to do that.
  Now, has it been rough? Has it been tough? Horribly so. My State is 
suffering from this mortgage crisis. We have to do more. We all know 
that. But economists are saying we are moving forward. We have turned 
the corner. Therefore, I don't understand this chorus of negativity 
coming from the Republicans toward our President when he was able to 
take the worst recession since the Great Depression and bring us back 
to a stable situation.
  Let's work together. Let's not heat up this rhetoric. We can do this. 
We did it before. We know how to wrap our arms around this deficit, and 
we know how to grow jobs. So let's take a page out of that book. It 
means we take bold steps, but we don't go so far so fast that we derail 
economic recovery. We can do this.
  The attack by the other side on the Environmental Protection Agency 
is unbelievable. I saw a cartoon in the Gannett papers in my hometown. 
It had a drawing of an elephant, representing the Republican Party. In 
the elephant's trunk was a can that was obviously poison. It had skull 
and bones on it, spraying the flowers, the trees, and the air. Under 
the Republican logo it said: Environmental Destruction Agency. The 
Republican Party calls it the Environmental Destruction Agency, and 
they have cut one-third--that is their proposal--of the EPA's budget.
  Now when I go out to talk to people, not one of them ever says to me: 
The air is too clean, Senator. Make it dirtier. My kid only missed 2 
days from this school year, and I want dirty air. Nobody has ever said 
to me: I want unhealthful water. Nobody has ever told me they want to 
live close to a Superfund site. So I say to my friends: Watch what you 
are doing. You are taking a meat ax to the Environmental Protection 
Agency that protects the health and the safety and the well-being of 
our children and our families. If you can't breathe, you can't work. 
You know that? You lose time from work. So let's be careful. Let's not 
be radical. Let's not be extreme. That is not what the people send us 
here to do.
  They certainly didn't send us here to take away a woman's right to 
choose. They sent us here to work on this economic recovery. Yet we 
have proposals over there on the other side that are unbelievable and 
that would raise taxes on people who have health care policies that 
include reproductive health care for women. Can you imagine? They want 
to raise taxes on small businesses that have health policies that cover 
reproductive health care for women. I don't think that is what this 
election was about. I thought it was about getting jobs in this 
economy.
  So between that and the overreaching on the budget, we have a lot of 
work to do. I say it with due respect, I really do. But the American 
people need to weigh in. They are going to need to say how much is too 
much and what their values are.
  Richard Nixon signed the Clean Air Act and the Clean Water Act. A 
Republican President signed these acts. Yet now the Republicans are 
trying to destroy these important bipartisan accomplishments. You know 
why? They say it kills jobs. Guess what. We heard the same thing from 
the people who tried to stop the Clean Air Act--the polluters. They 
said, it is going to cost jobs. But we had the greatest economic growth 
after that period. And guess what. Jobs are created when we clean up 
the air. Jobs are created when we have technologies we can export and 
when we find ways to make drinking water safe.
  Frankly, I am energized by this debate because I believe there are 
differences in the parties. I think that is OK, it is fine. I will be 
involved in the debate. I am sure colleagues on the other side who 
disagree will put forward their views. They are trying to take away the 
power of the Environmental Protection Agency to enforce standards on 
carbon pollution--dangerous carbon pollution--that the Bush 
administration told us through their work puts our people in danger, 
puts our families in danger, puts our country in danger, puts our 
economy in danger. They are actually trying to stop the EPA from 
enforcing the Clean Air Act. I do not know one constituent who ever 
told me they thought the air was too clean or the water was too safe to 
drink.


                      Nomination of Edward Davila

  Mr. President, today it is my honor to support the nomination of 
Judge Edward Davila as the Senate prepares to vote on his confirmation 
to become a district court judge. I congratulate him and his family on 
this important day. I have had the privilege of recommending Judge 
Davila to President Obama to serve on the Northern District Court of 
California. He is respected by his colleagues and those who appear 
before him, and he will make an excellent addition to the bench.
  This is a critical vacancy to fill. The Northern District has been 
designated a judicial emergency by the Administrative Office of the 
U.S. Courts. We do not have enough judges. This is another area in 
which we must work better together. I am hopeful on this one that we 
can.
  I am pleased that we are voting on Judge Davila today. When he is 
confirmed, Judge Davila will be the only Latino serving on the Northern 
District Court. That is important. Our

[[Page 1637]]

State is so diverse, it is extraordinary, and we need everybody 
believing they are represented.
  The judge is outstanding. He brings an impressive background of 
service in both public service and private practice.
  Judge Davila was born in Palo Alto, one of three children raised by a 
single mother. It is from his mother Dora that he learned the important 
qualities that have served him well. He defines those as hard work and 
determination. I extend my personal congratulations to Dora. As a 
mother, I know the immense pride she must feel for her son at his 
extraordinary accomplishments.
  Judge Davila is a graduate of the California State University at San 
Diego and the University of California's Hastings College of Law in San 
Francisco. He practiced law for nearly three decades, spending his 
first 7 years as Santa Clara County public defender before moving into 
the private sector as the co-owner of a small firm specializing in 
criminal defense. During his time as defense counsel, Judge Davila 
earned the respect of prosecutors and law enforcement officials with 
whom he interacted, and he received awards from the State Bar of 
California. He served as president of the Santa Clara Bar Association 
in 1998.
  Since 2001, he has served on the Santa Clara County Superior Court, 
where he has drawn praise from fellow judges and lawyers for his hard 
work, his integrity, and his fairness. In a recent survey by the Santa 
Clara County Bar Association, his performance was rated ``excellent'' 
or ``good'' by a huge percentage of participants with respect to his 
work ethic, his knowledge of the law, his knowledge of procedure, 
integrity, dispute resolution, and his judicial temperament, which we 
know is so important. He has also received awards and recognition for 
his judicial performance from the Santa Clara Bar Association and the 
California State Assembly.
  I close by congratulating Judge Davila and his entire family on this 
momentous day. Here is another example of the American dream. I urge my 
colleagues in the Senate to join me in voting to confirm this highly 
qualified nominee to the Federal bench.
  Mrs. FEINSTEIN. Mr. President, I rise in support of the nomination of 
California Superior Court Judge Edward Davila to be a U.S. district 
judge in the Northern District of California.
  If confirmed, Judge Davila would bring a wealth of relevant 
experience to the district court. Since 2001, he has served as a 
superior court judge in Santa Clara County. He has presided over more 
than 10,000 cases--both civil and criminal--and has seen more than 50 
cases from trial to final judgment.
  He is a seasoned lawyer who also has more than 20 years of litigation 
experience under his belt. For 13 years, Judge Davila tried criminal 
cases as a partner at his own law firm in San Jose. For 7 years before 
that, he worked as a deputy public defender for Santa Clara County. In 
total, during his two decades as a litigator, he tried more than 45 
cases to verdict or judgment.
  Beyond his professional experience, Judge Davila has also been a 
devoted member of the Santa Clara community. He is a former president 
of the Santa Clara County Bar Association as well as the Santa Clara 
County La Raza Lawyers Association. He has taught trial advocacy at 
Stanford Law School, the University of San Francisco School of Law, and 
the University of Santa Clara School of Law. And he has made it a 
longstanding practice to teach local high school students about the 
criminal justice system through mock trials in his courtroom.
  Judge Davila's confirmation would also bring much needed diversity to 
a court with broad reach in California. There are currently 18 active 
and senior district judges in the Northern District of California, but 
not a single one is of Latino or Hispanic descent. Judge Davila's 
confirmation would correct this imbalance. I am pleased to support his 
nomination, and I strongly urge my colleagues to confirm him.
  Finally, I want to say a word about the caseload in this district. 
Last week, the Judicial Conference of the United States sent a letter 
to the President and the leadership of the Senate calling attention to 
a handful of courts with severe caseload problems.
  The Northern District is one of these courts. Last year, the 
district's judges carried a caseload of nearly 600 weighted filings per 
judgeship--far above the recommended level. With two vacancies 
unfilled, that caseload rose to more than 700 weighted filings per 
active judge.
  These vacancies did not exist for lack of a nominee. The President 
nominated Judge Davila in May of last year. He was reported out of the 
Judiciary Committee without objection, but he is only now receiving a 
vote. Another very qualified nominee for this court, Magistrate Judge 
Edward Chen, was nominated in August of 2009. He has been reported out 
of the Judiciary Committee twice but still has not received a vote on 
the floor.
  Today's vote on Judge Davila's nomination is a step in the right 
direction. I urge my colleagues to support him, and I hope that we can 
continue to work together to ensure that our Federal courts have the 
judges they need to administer justice fairly and in a timely manner 
for the American people.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WICKER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Mississippi.
  Mr. WICKER. Mr. President, I rise in strong support of the nomination 
of Mississippi Supreme Court Justice James Graves to the U.S. Court of 
Appeals for the Fifth Circuit. I thank all of those on both sides of 
the aisle who have worked to get this vote scheduled and to bring us to 
this moment, where I am confident Justice Graves will be confirmed.
  When that happens today and when he takes the oath, Justice Graves 
will bring a rich and distinguished background of public service to the 
Fifth Circuit. He is a Mississippi native. He graduated as 
valedictorian of Sumner High School in the small delta town of Sumner 
and went on to receive his bachelor's degree from Millsaps College 
before going to law school at Syracuse University.
  Justice Graves currently presides as a justice on the Mississippi 
Supreme Court, where he has faithfully served since his appointment in 
2001 and his subsequent election in 2004. Before being appointed to the 
Mississippi Supreme Court, Justice Graves served as a circuit court 
judge in Hinds County, MS, for 10 years.
  Justice Graves is a dedicated family man and community volunteer. He 
has been honored on numerous occasions with awards recognizing his 
public service. Those who know him know he is particularly committed to 
teaching and motivating young people, particularly the young people of 
my State of Mississippi. I am confident that even in this position of 
increased responsibility and visibility, he will continue taking time 
to work with our Nation's young people.
  I am proud today to speak on behalf of Justice Graves. I urge my 
colleagues to vote in support of his nomination to the Fifth Circuit.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. COCHRAN. 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. COCHRAN. Mr. President, I am pleased to support the nomination of 
Justice James E. Graves, Jr., to serve as a judge on the U.S. Court of 
Appeals for the Fifth Circuit. At this time, Justice Graves is serving 
as a presiding justice on the Mississippi Supreme Court. He was 
appointed to our State's highest court in 2001, and he was elected to 
the court in 2004. Prior to that, he served as a trial court judge for 
10 years.

[[Page 1638]]

  Justice Graves has earned impressive academic credentials, including 
an undergraduate degree from Millsaps College, a law degree from 
Syracuse University College of Law, and a master's degree in public 
administration from Syracuse University.
  Justice Graves has served as a director of the Child Support Division 
of the Mississippi Department of Human Services. It is with pride and 
pleasure that I am able to recommend to the Senate the confirmation of 
Justice James E. Graves, Jr.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. 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. GRASSLEY. Mr. President, today the Senate will confirm two more 
of President Obama's judicial nominees. With this action, we are 
filling two seats which have been declared judicial emergencies. I am 
pleased we are moving forward with these important positions.
  I agree with the chairman's recent editorial and remarks he has made 
that we have an opportunity to turn the page and work together in a 
spirit of bipartisanship and civility. I do not view it as a productive 
effort to continue with the finger pointing and the negative back and 
forth regarding the previous pace or outcome of judicial nominations. 
Unfortunately, that rhetoric has frequently overshadowed the debate on 
the qualifications of particular nominees.
  I and my Republican colleagues have been very cooperative in taking 
action on the President's nominees. During this Congress, the President 
has nominated 50 individuals to the Federal judiciary. This Congress 
has been in session for approximately 1 month. In this brief time, we 
have taken positive action, in one form or another, on nearly half of 
those nominees. With today's votes, we will have confirmed 5 nominees. 
If this is not cooperation, I do not know what is.
  Furthermore, we have seen a high level of bipartisanship with regard 
to President Obama's confirmed nominees. For President Obama's 
confirmed district judge nominees, 94 percent of those confirmations 
were by unanimous votes. Only 59 percent of President Bush's confirmed 
district court nominees were afforded that same level of 
bipartisanship. So I think it is fair to say that we are cooperating in 
a bipartisan manner, and in a deliberate pace.
  I am working with the chairman to ensure nominees are afforded a fair 
but thorough process, in a timely manner. I have appreciated the 
chairman's courtesy as we have worked together to set schedules and 
agendas. As we do so, I assure my colleagues that I will not falter on 
ensuring each nominee is properly and thoroughly evaluated.
  We are acting to reduce the judiciary vacancy rate. There are 
currently 99 vacancies in the Federal courts. However, it is remarkable 
to me that more than half of those vacancies, 52 seats, have yet to 
receive a nomination. Furthermore, 25 of the 46 seats deemed to be 
judicial emergencies do not have nominees. It is unfair to blame 
Republicans for any delays with these vacancies. It is impossible to 
fill seats when a nominee has not been named. It is the responsibility 
of the President to send to the Senate consensus nominees for these 
positions.
  Let me say a few words about the nominees who are scheduled to have 
votes today. I thank our leadership for the reasonable arrangement that 
was reached to consider these nominations.
  First, Justice James E. Graves has been nominated to be a circuit 
judge for the Fifth Circuit. He received his B.A. from Millsaps 
College, his J.D. and an M.P.A. from Syracuse University.
  Justice Graves comes to the Federal bench with extensive experience 
in the legal field. He was a staff attorney for the Central Mississippi 
Legal Services for 3 years before moving into private practice. Justice 
Graves also spent time, first as a counsel, then as a chief legal 
counsel, in the office of the Mississippi attorney general. Justice 
Graves left the Office of the Attorney General to become director of 
the Mississippi Department of Human Services' Child Support Enforcement 
Division.
  Justice Graves also has considerable judicial experience. He was 
appointed to Mississippi Circuit Court judge in 1991 and was re-elected 
twice. Since 2001, Justice Graves has served on the Mississippi Supreme 
Court and has authored 151 majority opinions for the court and 92 
concurring or dissenting opinions. The American Bar Association 
Standing Committee on the Federal Judiciary unanimously rated him 
``Qualified.''
  I also rise in support of Judge Edward Davila to be U.S. district 
judge for the Northern District of California. With today's vote, we 
will have confirmed 7 of President Obama's nominees to the district 
courts of California. Judge Davila received his B.A. from California 
State University, San Diego and his J.D. from University of 
California's Hastings College of the Law. A majority of the American 
Bar Association Standing Committee on the Federal Judiciary rated him 
``Qualified.''
  Judge Davila began his career at the Santa Clara County Public 
Defender before entering private practice. He represented criminal 
defendants in State and Federal courts. In August 2001, Governor Gray 
Davis appointed Judge Davila to the Superior Court of California, 
County of Santa Clara, a trial court of general jurisdiction. Judge 
Davila was re-elected without opposition twice.
  We are making good progress in considering judicial nominations. I am 
pleased the chairman and I have been able to move forward. We are 
filling judicial vacancies, with a particular focus on judicial 
emergencies. We are working in a manner that treats each nominee in a 
fair manner and permits each Senator to thoroughly review the 
qualifications of each nominee.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Mr. President, we are prepared to yield back any time on 
this side. I understand from my colleague that they will yield back on 
their time.
  Parliamentary inquiry: Is the first nomination the Graves nomination?
  The PRESIDING OFFICER. That is correct.
  Mr. LEAHY. It is my understanding there is not a request for a 
rollcall vote on that one.
  The PRESIDING OFFICER. If all time is yielded back, the question is, 
Will the Senate advise and consent to the nomination of James E. 
Graves, Jr., of Mississippi, to be a U.S. Circuit Judge for the Fifth 
Circuit?
  The nomination was confirmed.
  Mr. LEAHY. Mr. President, I move to reconsider the vote.
  Mr. GRASSLEY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Edward J. Davila, of California, to be a 
U.S. District Judge for the Northern District of California?
  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 assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kerry), the Senator from Maryland (Ms. Mikulski), the Senator from 
Arkansas (Mr. Pryor), and the Senator from New Mexico (Mr. Udall) are 
necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from

[[Page 1639]]

Missouri (Mr. Blunt), the Senator from South Carolina (Mr. DeMint), and 
the Senator from South Carolina (Mr. Graham).
  The PRESIDING OFFICER (Mr. Manchin). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 93, nays 0, as follows:

                       [Rollcall Vote No. 15 Ex.]

                                YEAS--93

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

                             NOT VOTING--7

     Blunt
     DeMint
     Graham
     Kerry
     Mikulski
     Pryor
     Udall (NM)
  The nomination was confirmed.
  The PRESIDING OFFICER (Mr. Manchin). Under the previous order, the 
motion to reconsider is considered made and laid upon the table.

                          ____________________