November 16, 2009

NOMINATION OF ANDRE M. DAVIS TO BE UNITED STATES CIRCUIT JUDGE FOR THE FOURTH CIRCUIT

Madam President, let me first compliment my colleague, Senator Mikulski, for her leadership in bringing forward the nomination of Judge Davis to the circuit court of appeals. I join her in her comments about the fall of the Berlin Wall, the importance that meant not just for Europe. The Berlin Wall represented not only a divided city, a divided country, but a divided continent. And the fall of that wall that we commemorate of 20 years
ago has significance well beyond that one city.
 
   I was privileged to be in Berlin as the wall came down and will never forget those moments.
 
   It is also nice to see my colleague on the Senate floor without the need of any aid. She has been a fighter all of her life. She has been a fighter during this episode. She never missed a beat as far as representing the people of Maryland.
 
   But I particularly want to point out to my colleagues how proud I am of Senator Mikulski for the manner in which she has handled judicial appointments in our State. She is interested, as I am, in getting the very best on our Federal courts, and in the process that was set up for us to make recommendations to the President and make recommendations to our colleagues on the confirmation of judges from those who apply from Maryland. This represents an open process, a process that encourages our very interest to apply and become Federal judges, and one that is solely aimed at getting the very best talent onto our Federal courts.
 
   That is certainly true with Judge Davis. It is certainly true with that nomination. Judge Davis had a hearing before the Judiciary Committee in April. In June, our committee reported him out favorably with a strong bipartisan vote of 16 to 3.
 
   I am not going to go through all of the points that Senator Mikulski raised as far as his background. But I do want to underscore a few points I think are very important in the filling of this particular judicial position.
 
   Judge Davis has strong roots in Maryland. This is a Maryland seat on the Fourth Circuit. He was born in and raised in Baltimore. He is still a resident of Baltimore. Judge Davis has an exceptional record of legal experience in our State, including working as an assistant U.S. attorney, as a State district court judge, as a State circuit court judge, and now as a U.S. district judge.
 
   He received his bachelor's degree from the University of Pennsylvania and graduated cum laude with his J.D. degree from the University of Maryland School of Law where he still teaches classes as an adjunct faculty member.
 
   He served as a district judge for the U.S. District of Maryland since his Senate confirmation in 1995. You see Judge Davis has deep roots in Maryland and deep roots in the judicial branch of government.
 
   He has a longstanding record that he has demonstrated in protecting civil rights and liberties. I agree with my colleague, Senator Mikulski, that one of the principal standards we want to see in judges on our courts is an understanding of our Constitution and the protection it provides our citizens. That is particularly important on our circuit court of appeals.
 
   To give you one example of Judge Davis's record in protecting the rights of our people, this was a landmark decision on civil rights, Reid v. Glendening, where Judge Davis ruled that the Baltimore City Courthouses were not wheelchair accessible, in violation of the Americans with Disabilities Act. He then ordered the city and State to create a plan to make the buildings accessible.
 
   I think that is pretty gutsy when we realize that some of the support our judiciary needs comes from local government. Yet Judge Davis did what was required under our Constitution.
 
   He has been praised by lawyers in Maryland as a smart, evenhanded, fair, and open-minded judge. He has served as a judge for 22 years. He has handled somewhere around 5,300 cases. Judge Davis received a well qualified'' rating from the American Bar Standing Committee on the Federal judiciary.
 
   If confirmed, Judge Davis would be the third African-American judge to serve in the Fourth Circuit, which has one of the highest percentages of minority populations of any circuit in the country.
 
   As my colleague pointed out, the Fourth Circuit has one of the highest vacancy rates of any court, any circuit in our Nation. Five out of the fifteen seats are vacant, which constitutes one-third of the appellate court. Indeed, Judge Davis is a replacement for Judge Francis Murnaghan, who died in August of 2000.
 
   Judge Murnaghan also had a lifelong record as a Maryland resident who served on the Federal bench for 20 years and was one of the most respected lawyers and judges in our State. Judge Davis served as a law clerk for Judge Murnaghan on the Fourth Circuit from 1979 to 1980. So I think this is a very appropriate appointment.
 
   I am proud to join the senior Senator from Maryland, Ms. Mikulski, in recommending to our colleagues the confirmation of Judge Davis. We believe he will continue the great tradition, the great record he has established as a Federal judge, as a State judge, and he will continue that when confirmed by this body to serve on the Circuit Court of Appeals for the Fourth Circuit.
 
   We are proud to recommend his confirmation to our colleagues. With that, I see that the senior Republican on the Judiciary Committee, Senator Sessions, is on the Senate floor.
 
   I yield the floor.
 
* * *
 
    Mr. CARDIN. Madam President, I would like to address the concerns stated by the Senator from Oklahoma, Mr. Coburn, and the Senator from Alabama, Mr. Sessions, about Judge Davis Davis's record when it comes to criminal cases. His concerns seem primarily rooted in six criminal case reversals that appear in Judge Davis's record. As a Federal judge over the past 14 years, Judge Davis has presided over approximately 5,300 cases. Of that number, Judge Davis has presided over approximately 4,300 cases that went to verdict or judgment based on a trial or decision he made. My colleagues are focusing on just a handful of cases to argue that Judge Davis should not be elevated to the Fourth Circuit.
 
   While the number of reversals on criminal evidentiary matters appearing in Judge Davis's record that my colleague has mentioned is small, Judge Davis has directly addressed Senators' questions related to each of these reversals, expressing his commitment to applying the law to the facts impartially and fairly, while respecting the role of the appellate courts in our judicial system and their decisions in all cases. Following his confirmation hearing in the Judiciary Committee in April, which I chaired, our committee reported him out favorably with a strong bipartisan vote of 16 to 3. This overwhelming, bipartisan approval indicates that Judge Davis is well-qualified to be a U.S. Circuit Judge for the Fourth Circuit. Out of the 5,300 cases over which Judge Davis has presided, these six cases are hardly cause for the concern my colleagues have expressed. Later I want to also mention some criminal cases in which Judge Davis's stiff criminal sentences were upheld by the Fourth Circuit, along with convictions obtained after jury trials. However, to make the record clear, I will review in detail Judge Davis's responses to some of the half a dozen cases noted by my colleagues.
 
   In US v. Bradley, Judge Davis accepted several plea agreements with the defendants, who ultimately pleaded guilty but later, on appeal, argued that their pleas were not voluntary because the court impermissibly participated in pleas negotiations. The Fourth Circuit did not suggest that [Judge Davis] improperly intended to coerce involuntary guilty pleas,'' but found plain error and remanded the case for assignment to a different district judge. Upon questioning by the committee, Judge Davis said that he became involved with--but did not interfere with the plea process--at the invitation and encouragement of defense counsel. He ultimately concluded that he shouldn't have gotten involved with the process at all. He said he believed, with the benefit of hindsight, that his involvement in facilitating the guilty pleas in this case was inappropriate and that the Fourth Circuit was correct to say so.
 
   In US v. Custis, Judge Davis granted the defendant's motion to suppress evidence discovered in a residential search on the grounds that the warrant was defective and insufficient. The Fourth Circuit reversed, holding that probable cause supported the warrant. While Judge Davis told the committee he does believe he read the affidavit in a common sense manner, he fully accepts the appellate court's ruling in this case.
 
   In US v. Kimbrough, Judge Davis said he accepts the appellate court's ruling rejecting his legal conclusion that the police permitted the defendant's mother to question him under circumstances which the police couldn't have done so without first administering customary warnings. He agrees that warnings are required only when official interrogation takes place, but not when private interrogation takes place.
 
   In US v. McNeill, Judge Davis granted a motion to suppress the defendant's confession on the grounds of an unlawful arrest. Judge Davis explained to the committee that the principal issue before him was whether, for a warrantless misdemeanor arrest, the fourth amendment required that the misdemeanor be committed in the officer's presence. He concluded that the answer was yes'' in this case, and that no misdemeanor had been committed in the officer's presence as of the moment of arrest. While Judge Davis explained that the Fourth Circuit's holding presented an argument and precedent that had not been presented to him, he fully accepted the appellate court's ultimate ruling in this case.
 
   In US v. Dickey-Bey, Judge Davis also suppressed evidence arising out of the interception of cocaine by police for lack of probable cause to arrest the defendant. He has told us that he fully accepts the appellate court's rejection of his legal conclusion that the evidence presented at the hearing on the motion to suppress was insufficient, and remains committed to adhering to the fourth amendment requirement to make commonsense assessments of objective facts, taking into account the totality of the circumstances.
 
   I found Judge Davis's responses to the Judiciary Committee's questions about these six criminal cases to be candid, honest, and forthright. Judging by the overwhelming bipartisan support for his approval in the Judiciary Committee, so did many of my colleagues, on both sides of the aisle. Judge Davis has told us that in every case that has ever come before him, and there have been over 5,300 of them, he has done his best to determine the facts and to apply the law to the facts impartially and fairly.
 
   Indeed, among the 5,300 cases that Judge Davis has presided over, he has a clear record of using a moderate and fair approach to criminal cases. He has presided over numerous important criminal trials that have resulted in convictions affirmed by the Fourth Circuit, and he has also granted motions to suppress evidence obtained in violation of the rights of the accused. So let's look at his record more broadly to get a clearer picture of his many years on the bench.
 
   For example, in US v. Ulrich, Judge Davis handed down convictions for four defendants for mail fraud in connection with a real estate flipping scheme, a ruling that was affirmed by the Fourth Circuit in June 2007. In 2001, in US v. Montgomery, the Fourth Circuit affirmed his convictions related to a 10-week, multidefendant trial in a narcotics conspiracy prosecution. In 1998, the Fourth Circuit affirmed his conviction handed down in a murder prosecution in US v. Gray.
 
   As a Fourth Circuit Judge, Judge Davis has expressed that he will follow the precedents of the Supreme Court and the circuit, and will continue to apply the law to the facts of each case impartially and fairly. His record as a district judge clearly bears out this commitment.
 

   I thank my colleagues for supporting this nomination.