11.09.09

After Five-Month Delay, Senate Confirms Davis To 4th Circuit

WASHINGTON – More than five months after the nomination was overwhelmingly reported by the Senate Judiciary Committee, the Senate Monday night confirmed Judge Andre Davis to serve on the Fourth Circuit Court of Appeals.  The Judiciary Committee earlier had reported the Davis nomination to the Senate by a vote of 16 to 3.  He was confirmed by the Senate Monday night in a 72 to 16 vote.
 
Amid an across-the-board slowdown orchestrated by the Senate’s minority party, the Senate has been slow to confirm even consensus judicial nominees reported by the Judiciary Committee.  Davis and Seventh Circuit nominee Judge David Hamilton have been pending before the full Senate since June 4.  Two additional circuit court nominations have been pending on the Senate’s executive calendar for more than a month, despite being reported by the Committee without any dissenting votes.  A total of nine judicial nominations remain pending on the Senate’s executive calendar, including seven which were reported by the Judiciary Committee without objection.

Though Senate Democrats have offered proposals to consider these nominations, Senate Republicans have not agreed to permit debate and votes.
 
In a statement on the Senate floor before the confirmation vote, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) spoke about the delays in considering judicial nominations but praised the administration’s effort to send consensus nominations to the Senate based on bipartisan recommendations from home state senators.
 
“The obstruction and delays in considering President Obama’s judicial nominations is especially disappointing given the extensive efforts by President Obama to turn away from the divisive approach taken by the previous administration and to reach out to Senators from both parties as he selects mainstream, well-qualified nominees,” said Leahy.  “The President has done an admirable job of working with Senators from both sides of the aisle, Democrats and Republicans.”
 
By this date in the first year of the Bush administration, under Leahy’s chairmanship of the Judiciary Committee and the Senate’s Democratic majority, the Senate had confirmed more than three times as many judicial nominations, including four circuit court nominees.  To date, the Senate has confirmed just two circuit court nominations, and just three district nominees.
 
While Senate Republicans have slowed the confirmation of qualified nominees, vacancies on the federal judiciary are on the rise, with more than 120 current and future vacancies announced.  Under Leahy’s chairmanship during the Bush administration, vacancies were reduced to as few as 34, with fewer than 10 circuit court vacancies.
 
Leahy also praised Davis as a strong, qualified nominee to the Fourth Circuit.
 
“Judge Davis has had a long and distinguished legal career,” said Leahy.  “For the last 14 years he has served as a Federal District Court Judge in Maryland.  He has been a state judge and a Federal prosecutor.  I know that Judge Davis will make a fine addition to the Fourth Circuit.”
 
Senate Republicans have also objected to Democrats efforts to confirm several executive nominations reported by the Judiciary Committee, including the nomination of Christopher Schroeder to be the Assistant Attorney General for the Office of Legal Policy at the Department of Justice.  Schroeder’s nomination was reported by the Judiciary Committee without objection and has been pending before the Senate since July.  The Office of Legal Policy works in consultation with the White House Counsel's office in the selection and confirmation of federal judges.  Seven Committee-reported executive nominations are pending on the Executive Calendar.

For information about pending judicial and executive nominations, visit the Senate Judiciary Committee’s website.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee
On The Nomination of Andre Davis of Maryland
To The United States Court Of Appeals For The Fourth Circuit
November 9, 2009

 
AS PREPARED

Today the Senate finally considers the nomination of Judge Andre Davis of Maryland to the Fourth Circuit.
 
This is not a nomination that should have taken the Senate five months to consider after it was reported by the Judiciary Committee with a strong bipartisan vote of 16 to three.  Senator Hatch, Senator Kyl, Senator Graham and Senator Cornyn all voted in favor of reporting Judge Davis’s nomination.  He is a well-respected judge who has served for 14 years on the Federal bench as a district court judge and for eight years as a Maryland state court judge.  
 
The American Bar Association’s Standing Committee on the Federal Judiciary rated his nomination well-qualified.  Given his qualifications, experience and Maryland roots, it is no surprise Judge Davis enjoys the strong support of his home state Senators, Senator Mikulski and Senator Cardin.  Senator Cardin chaired his confirmation hearing back on April 21 and has been a strong advocate for Senate action on his nomination.
 
What is not surprising, but nonetheless disappointing, is that the Senate has been prevented from considering this nomination for five months by Republican objections.  I am not surprised because Senate Republicans began this year threatening to filibuster President Obama’s judicial nominations before he had made a single one.  They have followed through with that threat by obstructing and stalling the process, delaying for months the confirmation of well-qualified, consensus nominees.  Last week, the Senate was finally allowed to consider the nomination of Judge Irene Berger, who has now been confirmed as the first African American Federal judge in the history of West Virginia.  The Republican minority delayed consideration of her nomination for more than three weeks after it was reported unanimously by the Judiciary Committee.  When her nomination finally came to a vote, it was approved by an overwhelming vote of 97-0.  That follows the pattern that Republicans have followed all year with respect to President Obama’s nominations.  I expect Judge Davis to be confirmed by a bipartisan majority, but only after a five-month stall.
 
Last year, with a Democratic Majority, the Senate reduced circuit court vacancies to as low as nine and judicial vacancies overall to as low as 34, even though it was the last year of President Bush’s second term and a presidential election year.  That was the lowest number of circuit court vacancies in decades, since before Senate Republicans began stalling Clinton nominees and grinding confirmations to a halt.  In the 1996 session, the Republican-controlled Senate confirmed only 17 judges and not a single circuit court nominee.  Because of those delays and pocket filibusters, judicial vacancies grew to over 100, and circuit vacancies rose into the mid-thirties.
 
When I served as chairman of the Senate Judiciary Committee during President Bush’s first term, I did my best to stop this downward spiral that had affected judicial confirmations.  Throughout my chairmanship, I made sure to treat President Bush’s judicial nominees better than the Republicans had treated President Clinton’s nominees. During the 17 months I chaired the Judiciary Committee in President Bush’s first term, we confirmed 100 of his judicial nominees.  At the end of his presidency, although Republicans had run the Judiciary Committee for more than half his tenure, more of his judicial nominees were confirmed when I was the Chairman than in the more than four years when Republicans were in charge.
 
Instead of building on that progress, Senate Republicans are intent on turning back the clock to the abuses they engaged in during their years of resistance to President Clinton’s moderate and mainstream judicial nomination.  The delays and inaction we are seeing now from Republican Senators in considering the nominees of another Democratic President are regrettably familiar. Their tactics have resulted in a sorry record of judicial confirmations this year – less than a handful-- with 10 judicial nominees currently stalled on the Senate Executive Calendar.
 
By November 9 in the first year of the presidency of George W. Bush, the Senate had confirmed 17 circuit and district court judges, four circuit court nominees and 13 district court nominees.  By contrast, Judge Davis is only the second circuit court nomination Republicans have allowed to be considered all year.  When his nomination is confirmed, it will only bring the total to five—less than one third of what we had accomplished by this time in 2001.  I know because in the summer of 2001, I began serving as the chair of the Judiciary Committee.  We achieved those results with a controversial and confrontational Republican President after a mid-year change to a Democratic majority in the Senate.  We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the PATRIOT Act for six weeks.  By comparison, this year, the Republican minority has this year allowed action on only four judicial nominations to the Federal circuit and district courts.  Judge Davis will be the fifth, and only the second circuit court judge.  
 
This is not for lack of qualified nominees.  There are 10 such nominees who have been reported by the Judiciary Committee on the Senate Executive Calendar.  Had those nominations been considered in the normal course we would be on the pace I set in 2001 when fairly considering the nominations of our last Republican President.  I treated President Bush’s nominees better than the Republicans had treated President Clinton’s, but it has made no difference, they are now treating this President’s nominees worse still.  Rather than continued progress, we see Senate Republicans resorting to their bag of procedural treats to delay and obstruct.  They have ratcheted up the partisanship and seek to impose ideological litmus tests.
 
The obstruction and delays in considering President Obama’s judicial nominations is especially disappointing given the extensive efforts by President Obama to turn away from the divisive approach taken by the previous administration and to reach out to Senators from both parties as he selects mainstream, well-qualified nominees.  The President has done an admirable job of working with Senators from both sides of the aisle, Democrats and Republicans.
 
In a recent column, Professor Carl Tobias wrote about President Obama’s approach: “Obama has emphad bipartisan outreach, particularly by soliciting the advice of Democratic and Republican Judiciary Committee members, and of high-level party officials from the states where vacancies arise, and by doing so before final nominations. Obama has gradually, but steadily, put forward his nominees, typically naming a few on the same day. This approach compares favorably with the approach of the two prior administrations, which often submitted large packages on the eve of Senate recesses, thus complicating felicitous confirmation. To date, Obama has nominated 23 well-qualified consensus candidates, who are diverse in terms of ethnicity, gender and ideology. This is sufficient quantitatively and qualitatively to foster prompt confirmation.”

I ask that a copy of Professor Tobias’s column be included in the record following my statement.

Professor Tobias makes this point well and it is substantiated by the bipartisan support from Republican home state Senators for the President’s nominees. Indeed, since he made these observations the President has nominated two North Carolinians for vacancies on the Fourth Circuit after consulting with both Senator Hagan and Senator Burr.
 
His first nomination of Judge David Hamilton of Indiana to the Seventh Circuit came to the Senate with the strong endorsement of Senator Lugar, the senior Republican in the Senate.  Senator Lugar praised the “thoughtful, cooperative, merit-driven” process he and Senator Bayh took in consulting on that nomination.  Despite the bipartisan endorsement from his home state Senators, Judge Hamilton’s nomination is the subject of a Republican filibuster and has been stalled since it was reported to the Senate in June.
 
Federal judicial vacancies, which had been cut in half while George W. Bush was President have  already more than doubled since last year. There are now 98 vacancies on our Federal circuit and district courts, including 22 circuit court vacancies. Justice should not be delayed or denied to any American because of overburdened courts, but that is the likely result of the stalling and obstruction.  
 
Despite the fact that Senate Republicans had pocket filibustered President Clinton’s circuit court nominees, Senate Democrats opposed only the most extreme of President Bush’s ideological nominees and worked to reduce judicial vacancies.  That had led to a reduction in vacancies in nearly every circuit during President Bush’s administration.  One of the circuits where we succeeded in reducing vacancies was the Fourth Circuit, the circuit to which Judge Davis has been nominated.  
 
After Senate Republicans had refused to consider any of President Clinton’s four Fourth Circuit nominees from North Carolina, vacancies on the Fourth Circuit had risen to five.  All four of President Clinton’s nominees from North Carolina to the Fourth Circuit were blocked from consideration by the Republican Senate majority. These outstanding nominees included United States District Court Judge James Beaty, Jr., United States Bankruptcy Judge J. Richard Leonard, Professor Elizabeth Gibson, and North Carolina Court of Appeals Judge James Wynn.  Had either Judge Beaty or Judge Wynn been considered and confirmed, he would have been the first African-American judge appointed to the Fourth Circuit.  The failure to proceed on those nominations was never explained.  Indeed, Senate Republicans refused to consider any of President Clinton’s highly-qualified circuit court nominations from any of its states in the Fourth Circuit during the last three years of his administration.  That resulted in five continuing vacancies.
 
What followed was an effort by President Bush to pack the Fourth Circuit with ideologues. He nominated a political operative from Virginia for a vacancy in Maryland who was caught stealing from a local store and pleaded guilty to fraud.  There was his highly controversial nomination of William “Jim” Haynes II to the Fourth Circuit who as General Counsel at the Department of Defense was an architect of many discredited policies on torture and who never fulfilled the pledge he made to me under oath at his hearing to supply the materials he discussed in an extended opening statement regarding his role in developing these policies and their purported legal justifications.   
 
Mr. Haynes nomination led the Richmond Times-Dispatch to write an editorial in late 2006 entitled “No Vacancies,” about President Bush’s counterproductive approach to nominations in the Fourth Circuit.  The editorial criticized the administration for pursuing political fights at the expense of filling vacancies.  According to the Richmond Times-Dispatch: “The president erred by renominating  . . . and may be squandering his opportunity to fill numerous other vacancies with judges of right reason.”
 
President Bush insisted on nominating and renominating Terrence Boyle, despite the fact that as a sitting United States District Judge and while a circuit court nominee, Judge Boyle ruled on multiple cases involving corporations in which he held investments.  President Bush should have heeded the call of North Carolina Police Benevolent Association, the North Carolina Troopers’ Association, the Police Benevolent Associations from South Carolina and Virginia, the National Association of Police Organizations, the Professional Fire Fighters and the Paramedics of North Carolina. Law enforcement officers from North Carolina and across the country opposed to the Boyle nomination. Civil rights groups opposed the nomination. Those knowledgeable and respectful of judicial ethics opposed the nomination.  Ultimately, President Bush withdrew the Boyle nomination.
 
I mention these ill-advised nominations because so many Republican partisans seem to have forgotten the reasons these ideological nominations did not proceed.
 
We did break the logjam in North Carolina. I worked to break through the impasse and to confirm Judge Allyson Duncan of North Carolina to the Fourth Circuit when President Bush nominated her.  From the summer of 2001 through 2002, I presided over the consideration and confirmation of three Fourth Circuit judges nominated by President Bush.  And in the presidential election year of 2008, one of the final appellate court judges confirmed by the Senate was another Fourth Circuit nominee.  Despite the confrontational approach taken by President Bush and additional retirements on the Fourth Circuit, we ended up reducing the vacancies on the Fourth Circuit during the course of his administration.
 
Despite our good efforts, the right wing seems intent on repeating its mistakes of the past and obstructing President Obama’s nominees to the Fourth Circuit.  That appears to be why Judge Davis has been delayed for months. That appears to be why they are resisting consideration of the nomination of Justice Barbara Keenan from Virginia.  And that appears to be why following the announcement last week of the nominations of Judge James Wynn and Judge Albert Diaz to Fourth Circuit vacancies, the head of a right wing group urged Republican Senators to obstruct the nominees saying: “I will predict ... that life will not be made easy for these two nominees.”
 
The Senate is finally being allowed to consider Judge Davis’s nomination.  He has had a long and distinguished legal career. For the last 14 years he has served as a Federal District Court Judge in Maryland.  He has been a state judge and a Federal prosecutor.  He received his bachelor’s degree from the University of Pennsylvania and graduated cum laude with his J.D. from the University of Maryland School of Law, where he still teaches classes as an adjunct faculty member. I know that Judge Davis will make a fine addition to the Fourth Circuit.
 
I know how hard Senator Cardin has worked to see this day.
 
I congratulate Judge Davis and his family on what I expect to be his confirmation and regret that it is long overdue.

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