[Senate Hearing 108-135]
[From the U.S. Government Publishing Office]
S. Hrg. 108-135, Pt. 8
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JULY 7, SEPTEMBER 8, SEPTEMBER 22, AND NOVEMBER 16, 2004
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Serial No. J-108-1
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PART 8
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
----------
WEDNESDAY, JULY 7, 2004
STATEMENTS OF COMMITTEE MEMBERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 49
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 51
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 53
PRESENTER
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Michael H. Schneider, Sr., Nominee to be
District Judge for the Eastern District of Texas............... 3
STATEMENT OF THE NOMINEE
Schneider, Michael H., Sr., Nominee to be District Judge for the
Eastern District of Texas...................................... 4
Questionnaire................................................ 6
QUESTIONS AND ANSWERS
Responses of Michael H. Schneider to questions submitted by
Senator Hatch.................................................. 41
Responses of Michael H. Schneider to questions submitted by
Senator Leahy.................................................. 44
SUBMISSION FOR THE RECORD
Dallas County Democratic Party, Susan Hays, Chair, Dallas, Texas,
letter......................................................... 52
----------
WEDNESDAY, SEPTEMBER 8, 2004
STATEMENTS OF COMMITTEE MEMBERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 246
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 64
prepared statement........................................... 248
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 66
prepared statement........................................... 250
PRESENTERS
Christensen, Hon. Donna, a Delegate in Congress from the
Territory of the Virgin Islands presenting Raymond L. Finch,
Nominee to be Judge for the District Court of the Virgin
Islands for the term of ten years [Reappointment].............. 61
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Keith Starrett, Nominee to be District Judge for the
Southern District of Mississippi............................... 57
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
presenting Micaela Alvarez, Nominee to be District Judge for
the Southern District of Texas................................. 60
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas, presenting Micaela Alvarez, Nominee to be District Judge
for the Southern District of Texas............................. 59
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Keith Starrett, Nominee to be District Judge for the
Southern District of Mississippi............................... 58
McCotter, Hon. Thaddeus, a Representative in Congress from the
State of Michigan presenting Susan B. Neilson, Nominee to be a
District Judge for the Sixth Circuit........................... 63
STATEMENTS OF THE NOMINEES
Alvarez, Micaela, Nominee to be District Judge for the Southern
District of Texas.............................................. 116
Questionnaire................................................ 117
Finch, Raymond L., Nominee to be Judge for the District Court of
the Virgin Islands............................................. 204
Questionnaire................................................ 205
Neilson, Susan B., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 73
Questionnaire................................................ 74
Starrett, Keith, Nominee to be District Judge for the Southern
District of Mississippi........................................ 147
Questionnaire................................................ 148
QUESTIONS AND ANSWERS
Responses of Micaela Alvarez to questions submitted by Senator
Leahy.......................................................... 237
Responses of Raymond Finch to questions submitted by Senator
Leahy.......................................................... 240
Responses of Susan Neilson to questions submitted by Senators
Feingold and Durbin............................................ 243
SUBMISSIONS FOR THE RECORD
Levin, Hon. Carl, a U.S. Senator from the State of Michigan,
letter......................................................... 253
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi,
prepared statement............................................. 255
Martin, Crystal Wise, President, Magnolia Bar Association, Inc.,
Jackson, Mississippi, letter................................... 260
Neilson, Susan Bieke, Circuit Court Judge, Detroit, Michigan,
letter......................................................... 263
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan,
prepared statement............................................. 264
----------
WEDNESDAY, SEPTEMBER 22, 2004
STATEMENTS OF COMMITTEE MEMBERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio,
prepared statement............................................. 414
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 420
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 451
PRESENTERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio
presenting Christopher Boyko, Nominee to be District Judge for
the Northern District of Ohio.................................. 270
Latourette, Hon. Steven, a Representative in Congress from the
State of Ohio presenting Christopher Boyko, Nominee to be
District Judge for the Northern District of Ohio............... 267
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont
presenting Beryl Alaine Howell, Nominee to be a Member of the
United States Sentencing Commission............................ 268
STATEMENTS OF THE NOMINEES
Boyko, Christopher, Nominee to be District Judge for the Northern
District of Ohio............................................... 272
Questionnaire................................................ 273
Howell, Beryl Alaine, Nominee to be a Member of the United States
Sentencing Commission.......................................... 318
Questionnaire................................................ 319
QUESTIONS AND ANSWERS
Responses of Christopher Allen Boyko to questions submitted by
Senator Leahy.................................................. 363
Responses of Beryl Alaine Howell to questions submitted by
Senators Chambliss and Sessions................................ 406
SUBMISSIONS FOR THE RECORD
Howell, Beryl Alaine, Nominee to be a Member of the Sentencing
Commission, articles........................................... 423
Stroz Friedberg, LLC, March 3, 2003, article..................... 455
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio,
prepared statement............................................. 457
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TUESDAY, NOVEMBER 16, 2004
STATEMENTS OF COMMITTEE MEMBERS
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 463
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 656
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 674
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 470
PRESENTERS
Akaka, Hon. Daniel, a U.S. Senator from the State of Hawaii
presenting J. Michael Seabright, of Hawaii, Nominee to be
District Judge for the District of Hawaii...................... 464
Bennett, Hon. Robert, a U.S. Senator from the State of Utah,
presenting Thomas B. Griffith, of Utah, Nominee to be Circuit
Judge for the District of Columbia............................. 465
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York presenting Paul A. Crotty, of New York, Nominee to be
District Judge for the Southern District of New York........... 556
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
presenting Thomas B. Griffith, of Utah, Nominee to be Circuit
Judge for the District of Columbia............................. 467
Inouye, Hon. Daniel, a U.S. Senator from the State of Hawaii
presenting J. Michael Seabright, of Hawaii, Nominee to be
District Judge for the District of Hawaii...................... 460
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Paul A. Crotty, of New York, Nominee to be
District Judge for the Southern District of New York........... 461
STATEMENTS OF THE NOMINEES
Griffith, Thomas B., Nominee to be Circuit Judge for the District
of Columbia.................................................... 471
Questionnaire................................................ 473
Crotty, Paul A., Nominee to be District Judge for the Southern
District of New York........................................... 502
Questionnaire................................................ 503
Seabright, J. Michael, Nominee to be District Judge for the
District of Hawaii............................................. 515
Questionnaire................................................ 516
QUESTIONS AND ANSWERS
Responses of Thomas B. Griffith to questions submitted by Senator
Biden.......................................................... 562
Responses of Thomas B. Griffith to questions submitted by Senator
Durbin......................................................... 566
Responses of Thomas B. Griffith to questions submitted by Senator
Feingold....................................................... 571
Responses of Thomas B. Griffith to questions submitted by Senator
Feinstein...................................................... 584
Responses of Thomas B. Griffith to questions submitted by Senator
Kennedy........................................................ 595
Responses of Thomas B. Griffith to questions submitted by Senator
Leahy.......................................................... 601
SUBMISSIONS FOR THE RECORD
Albright, G. Mark, Esq., Albright, Stoddard, Warnick & Palmer,
Las Vegas, Nevada, letter...................................... 615
Andrews, Walter J., Partner, Shaw Pittman L.L.P., McLean,
Virginia, letter............................................... 617
Augustine-Adams, Kif, Professor of Law, J. Reuben Clark Law
School, Brigham Young University, Provo, Utah, letter.......... 618
Baldwin, John C., Executive Director, Utah State Bar, Salt Lake
City, Utah, letter............................................. 620
Bertelsen, Delora P., Managing Director, Employee Relations and
Equal Opportunity, Brigham Young University, letter............ 621
Bledsoe, Louis A., III, Robin L. Hinson, Haynes P. Lea, Edwin F.
Lucas, III, Jane S. Ratteree, Patrick S. Bryant, Edward F.
Hennessey, IV, Allen K. Robertson, Robert W. Bradswhaw, Jr.,
John R. Wester, Brent A. Torstrick, Richard L. Mack, Robert G.
Griffin, Henry H. Ralston, Stokley G. Caldwell, Jr.,
Christopher W. Loeb, Benjamin W. Baldwin, Robert M. Bryan,
Robert W. Fuller, D. Blaine Sanders, David C. Wright, III,
Allain C. Andry, IV, Mark W. Merritt, Robinson, Bradsaw &
Hinson, Charlotte, North Carolina, letter...................... 622
Bowlsby, Robert A., Director, Iowa Hawkeyes, University of Iowa,
Carver-Hawkeye Arena, Iowa City, Iowa, letter.................. 625
Brunner, Thomas W., Wiley Rein & Fielding L.L.P., Washington,
D.C., letter................................................... 626
Clark, Robert S., Parr Waddoups Brown Gee & Loveless, Attorneys
at Law, Salt Lake City, Utah, letters.......................... 628
Cobb, John H., Helms Mulliss & Wicker, PLLC, Charlotte, North
Carolina, letter............................................... 631
Ellis, Mark S., Executive Director, International Bar
Association, London, United Kingdom, letter.................... 633
Fielding, Fred F., Wiley Rein & Fielding L.L.P., Washington,
D.C., letter................................................... 635
Foggan, Laura A., Wiley Rein & Fielding L.L.P., Washington, D.C.,
letter......................................................... 637
Freedman, Monroe H., Professor of Law, Hofstra University,
Hempstead, New York, letters and attachment.................... 638
Grames, Conan P., Chairman, International Section, Kirton &
McConkie, Salt Lake City, Utah, letter......................... 644
Griffith, Thomas B., Assistant to the President and General
Counsel, Brigham Young University, Provo, Utah, letter and
attachments.................................................... 646
Guynn, Randall D., Davis Polk & Wardwell, New York, New York,
letter......................................................... 651
Hansen, H. Reese, J. Reuben Clark Law School, Brigham Young
University, Provo, Utah, letter................................ 653
Huefner, Steven F., Assistant Professor of Law, Legislation
Clinic Director, Ohio State University, Columbus, Ohio, letter. 660
Ivey, Glenn F., Upper Marlboro, Maryland, letter................. 662
Jacopy, Wade, Director, Center for the Study of Europe, Brigham
Young University, Provo, Utah, letter.......................... 663
Jardino, James S., Ray, Quinney & Nebeker, Salt Lake City, Utah,
letter......................................................... 664
Jones, Brian W., General Counsel, Department of Education,
Washington, D.C., letter....................................... 666
Keegan, Lisa Graham, Office of Legal Policy, Department of
Justice, Washington, D.C., letter.............................. 668
Khoury, Paul F., Wiley Rein & Fielding L.L.P., Washington, D.C.,
letter......................................................... 670
Lawson, Rodney H., Carrington, Coleman Sloman & Blumental L.L.P,
Dallas Texas, letter........................................... 672
Leland, Ted, Director of Athletics, Stanford University,
Stanford, California, letter................................... 676
Lundberg, Constance, Associate Dean and Professor of Law, J.
Reuben Clark Law School, Brigham Young University, Provo, Utah,
letter......................................................... 677
McConkie, Oscar W., Kirton & McConkie, Salt Lake City, Utah,
letter......................................................... 678
Members of the Utah Bar, John A. Adams, Charles R. Brown, Scott
Daniels, Randy L. Dryer, Dennis V. Haslam, letter.............. 679
Michaelis, Elaine, Executive Director, Brigham Young University
Women's Athletics, Provo, Utah, letter......................... 680
Mikva, Abner J., former Chief Judge, U.S. Court of Appeals for
the D.C. Circuit, University of Chicago, Chicago, Illinois,
letters........................................................ 682
Morgan, Thomas D., Oppenheim Professor of Antitrust and Trade
Regulation Law, George Washington University Law School,
Washington, D.C., letter....................................... 684
Moyer, Homer E., Jr., Miller & Chevalier, Washington, D.C.,
letter......................................................... 687
Olson, Eric, C., Kirton & McConkie, Salt Lake City, Utah, letter. 688
Pullins, Kathy D., Associate Dean, Constance K. Lundberg,
Associate Dean and Professor of Law, Mary H. Hoagland,
Assistant Dean, J. Reuben Clark Law School, Brigham Young
University, Provo, Utah, letter................................ 690
Robinson, Russell M., II, Robinson, Bradshaw & Hinson, Charlotte,
North Carolina, letter......................................... 692
Togers, Sandra, International Vice President, Brigham Young
University, Provo, Utah, letter................................ 693
Scharman, Janet S., Student Life Vice President, Brigham Young
University, Provo, Utah, letter................................ 695
Siegfried, B.R., letter.......................................... 696
Simon, Rita J., University Professor, Title IX Commissioner,
American University, Washington, D.C., letter.................. 697
Spanier, Graham B., President, Pennsylvania State University,
University Park, Pennsylvania, letter.......................... 698
Stroup, Sally L., Assistant Secretary, Department of Education,
Washington, D.C., letter....................................... 700
Stuntz, William J., Professor of Law, Harvard Law School,
Cambridge, Massachusetts, letter............................... 702
Tolbert, David, Deputy Registrar, United Nations, International
Criminal Tribunal for the former Yugoslavia, The Hague,
Netherlands, letter............................................ 704
Umin, Steven M., Williams & Connolly L.L.P., Washington, D.C.,
letter and attachment.......................................... 705
Walker, Samuel D., Esq., Chief Legal Officer and Public Affairs
Vice President, Coors Brewing Company, Littleton, Colorado,
letter......................................................... 710
Wardle, Lynn D., Professor of Law, J. Reuben Clark Law School,
Brigham Young University, Provo, Utah, letter.................. 712
Waxman, Seth P., letter.......................................... 714
Wiley, Richard E., Wiley Rein & Fielding L.L.P., Washington,
D.C., letter................................................... 715
ALPHABETICAL LIST OF NOMINEES
Alvarez, Micaela, Nominee to be District Judge for the Southern
District of Texas.............................................. 116
Boyko, Christopher, Nominee to be District Judge for the Northern
District of Ohio............................................... 272
Crotty, Paul A., Nominee to be District Judge for the Southern
District of New York........................................... 502
Finch, Raymond L., Nominee to be Judge for the District Court of
the Virgin Islands............................................. 204
Griffith, Thomas B., Nominee to be Circuit Judge for the District
of Columbia.................................................... 471
Howell, Beryl Alaine, Nominee to be a Member of the United States
Sentencing Commission.......................................... 318
Neilson, Susan B., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 73
Schneider, Michael H., Sr., Nominee to be District Judge for the
Eastern District of Texas...................................... 4
Seabright, J. Michael, Nominee to be District Judge for the
District of Hawaii............................................. 515
Starrett, Keith, Nominee to be District Judge for the Southern
District of Mississippi........................................ 147
NOMINATION OF MICHAEL H. SCHNEIDER, SR., OF TEXAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS
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WEDNESDAY, JULY 7, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senator Cornyn.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. This hearing of the Senate Judiciary
Committee will come to order.
Today, we have the privilege of considering the nomination
of an exceptional Texas jurist to serve on the Federal district
bench for the Eastern District of Texas. I want to start by
thanking the Chairman of the Committee, Senator Hatch, for
scheduling today's hearing and giving me the honor of chairing
it. I look forward to moving this nomination through the
Committee and through the Senate over the next few weeks.
I also want to thank the Ranking Member, Senator Leahy, and
his staff for working so cooperatively to make today's hearing
possible. One thing you learn in the United States Senate is
cooperation is critical to getting anything done, and that is
true in this case as well.
After a few brief introductory remarks, I will turn the
floor over to Senator Leahy, if he is able to attend, for any
remarks he might wish to make; if not, then certainly any
written statements any Senator would like to be made part of
the record will be made part of the record, without objection.
And I know that Senator Hutchison, the senior Senator from
Texas, will be here, who knows the nominee and his family quite
well, is on her way and would like to make some remarks.
The vacancy we hope to fill with the nomination before us
today was created by the untimely passing of Judge John H.
Hannah, Jr. Judge Hannah was a good man and a distinguished
jurist. His family's loss was also a great loss to the State of
Texas and to the Federal judiciary.
I had the chance to work with Judge Hannah when he was
Secretary of State for Texas and also when he was on the
Federal bench. Also, in a brief interim between the time I left
public service and was a private practitioner, I also actually
appeared before him as a practicing lawyer. And I can tell you
that he unerringly treated everyone with respect and dignity.
Senator Hutchison and I worked with Judge Hannah closely
just last year on legislation to authorize the Eastern District
of Texas to hold court in the city of Plano. That bill was
important to Judge Hannah, who always worked hard to serve the
citizens of the Eastern District. He passed away the day after
the President signed that legislation into law.
The death of Judge Hannah leaves some big shoes to fill,
but President Bush could not have filled them better than with
the nomination of Texas Supreme Court Justice Michael Haygood
Schneider. Justice Schneider will bring to the Federal district
court the wisdom, judgment, and experience of over a quarter of
a century's service on the bench. He understands, as any good
judge must, that the duty of a judge is to interpret the law,
not to legislate from the bench.
Justice Schneider has held virtually every position in the
State court system that Texas has to offer. From 1978 to 1990,
he served on the West University Place Municipal Court. Then he
served on the 157th District Court of Texas, located in
Houston, until 1996. Next, he became Chief Justice of the First
Court of Appeals in Houston. He served there until 2002, when
he was appointed Justice of the Supreme Court of Texas, where I
once had the honor of serving.
He has been honored both as Trial Judge of the Year and
Appellate Judge of the Year by the Texas Association of Civil
Trial and Appellate Specialists. In addition to this
extraordinary record of judicial service, Justice Schneider
also served the people of Texas in the role of assistant
district attorney for Harris County.
Justice Schneider is a graduate of Stephen F. Austin State
University in Nacogdoches in East Texas, the University of
Houston Law School, and more recently the LL.M. program of the
University of Virginia Law School. And he has a distinguished
record of civic involvement.
Justice Schneider's reputation as an exceptional jurist and
a true gentleman is well known throughout the State of Texas.
It is also well known by the American Bar Association, which
recently gave him its highest ranking, when its Standing
Committee on the Federal Judiciary unanimously certified him as
``Well Qualified'' for the Federal bench.
His nomination enjoys broad bipartisan support throughout
the State of Texas. For example, Susan Hayes, who chairs the
Dallas County Democratic Party, has written a strong letter of
support, and without objection, I would like to submit that
letter for the record.
I will break my remarks there, and since Senator Hutchison
has been able to join us, I know she has some remarks she would
like to make about this exceptionally well qualified nominee,
and I would be pleased to recognize her for that purpose at
this time.
Senator Hutchison. You may finish your comments if you want
to.
Senator Cornyn. I would be happy for you to proceed,
Senator Hutchison, because I am going to be here for a while,
and I know you have a number of other assignments that are
going to take you away. So, please, go ahead.
PRESENTATION OF MICHAEL H. SCHNEIDER, SR., NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS, BY HON. KAY
BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you very much. I appreciate that,
and I apologize for being late. But it is not because I am not
really excited about the support of a friend for a Federal
bench, Mike Schneider. I cannot think of anyone who has had all
of the right qualifications--well, except for you, Mr.
Chairman--but other than you, for this type of bench. He has
been a judge for 25 years and has performed in an excellent way
in all of his positions. This is an East Texas judgeship, so
the cities would be Beaumont, Texarkana, Tyler, and Sherman.
He has served as a Justice on our Supreme Court since 2002,
elected statewide for that position. Prior to that, he was
Chief Justice of the First Court of Appeals for Texas, and
prior to that, a district judge in Houston, as well as a
municipal judge in West University Place. So he has truly known
all the levels of our court system, which I think really speaks
well for him.
He earned his bachelor's degree from Stephen F. Austin
State University in 1965, a law degree from the University of
Houston in 1971, and a master of law degree from the University
of Virginia School of Law in 2001. He has been honored as Judge
of the Year twice by the Texas Association of Civil Trial and
Appellate Specialists. I cannot think of anyone who has the
respect that he does who is seeking a permanent position on the
court.
As you and I know, Mr. Chairman, these lifetime
appointments are very carefully regarded because once someone
has a lifetime appointment, we know that they no longer face
the people. But it really gives me pleasure to nominate someone
who has gone to the people, who has won elections, who has
shown judicial temperament, as well as the ability to excel and
be totally, overwhelmingly supported by the people of our State
at every level--district, civil, and Supreme Court, all of
which are elective in the State of Texas.
So I recommend him highly. We all know that this is late in
an election year, so my question will be to the Committee: Will
you move as swiftly as possible to try to get this nomination
ready for the floor? There should not be a controversy, and
this East Texas bench needs the seats filled. So it would be
helpful if you can move expeditiously.
And, with that, I will--well, before I leave, let me also
introduce his wife, who is here, Mary Schneider. I have known
Mary also for at least 25 years. She has been a family friend.
She is wonderful. And his son also, Michael, Jr., is here.
So we welcome all of them from Texas and look forward to
having a swift confirmation, if possible.
Senator Cornyn. Thank you, Senator Hutchison. Knowing that
usually when you and I have the honor of introducing a Texan
who has been nominated for public office like the Federal
bench, I know we sometimes go over the same credentials, and
that makes sense. But in an effort to try to come up with
something new and different, I went to the website of the
Supreme Court, and we know that Justice Schneider is humble not
because he has to be--that is just the kind of person he is--
but he points out he held a variety of jobs during college and
law school, including searching titles at a major oil company,
managing apartments, driving ambulances, operating a school bus
for disabled children, working at a funeral home, teaching at
school, delivering milk, clerking for a law firm, managing a
college cafeteria, serving as a waiter, bell-hopping at a
hotel, and serving as an intern at the U.S. Attorney's Office.
I may ask him which of those has best prepared him to serve on
the Federal bench in the questioning.
Senator Hutchison. Well, Mr. Chairman, I would just respond
to that saying that when you are giving this lifetime
appointment and having met many Federal judges who do not seem
to have the common touch, we can be assured with that addition
to his background that he is a man of the people.
Senator Cornyn. I agree. Thank you very much, Senator
Hutchison, for joining us and for those fine remarks.
I will just conclude my remarks by saying I am pleased that
the President has nominated Justice Schneider to serve on the
Eastern District of Texas, and I am honored to chair today's
hearing. I look forward to hearing from him today, and I look
forward to what I, too, will hope will be a swift confirmation
process.
As I mentioned earlier, other Senators may come during the
course of the hearing. Those who are unable to attend because
of conflicting hearings, or for any other reason, of course,
their statements will be made part of the record, without
objection.
But now I would like to invite Justice Schneider to take a
seat at the table, but first, if you will raise your right hand
and take the oath, please, Judge? You can just do it from
there. If you will just raise your right hand, do you swear
that the testimony you are about to give before this Committee
is the truth, the whole truth, and nothing but the truth, so
help you God?
Judge Schneider. I do.
Senator Cornyn. Thank you. Please have a seat. I know
Senator Hutchison acknowledged members of your family, but I
wonder if you would like to just have them maybe stand so we
can all get a good look at them. And I know they are relishing
this day as much as you are, and we want them to share in the
attention and the congratulations, too.
STATEMENT OF MICHAEL H. SCHNEIDER, SR., NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF TEXAS
Judge Schneider. Well, my wife, Mary, of course; and my
son, Michael, Jr. And I am going to introduce a surprise
visitor here today. A young man that was my briefing attorney
at the Court of Appeals in Houston found out about this and
showed up: John Murdoch.
Senator Cornyn. Very good.
Judge Schneider. And then we have three other daughters
that are not able to be here, and just to acknowledge them: My
daughter, Dr. Heidi Schneider, who is an internal medicine
doctor in San Antonio. We have got Shelley, who is going to be
finishing--Shelley Toomey, who will be finishing or actually
has started teaching in the Houston Independent School
District. And then last, and certainly not least, Christine,
who is in her last year as an education major at Texas State
University.
Senator Cornyn. Well, I know they all must be very proud of
you and your accomplishment and share in your sense of
accomplishment and also gratitude at being nominated for this
position.
I wonder if, Judge Schneider, since it looks like it is
just you and me for the time being, I would be glad to
recognize you for any opening remarks you would like to make at
this time.
Judge Schneider. Thank you, Senator. Thank you, Mr.
Chairman. I want to continue and say, in introducing people, to
express my thanks to the Senate, the Judiciary Committee,
Senators Hatch and Leahy, especially the Chairman, Senator
Cornyn, and Senator Hutchison who came over this morning. I
also want to thank the President for having confidence in me to
make this nomination.
[The biographical information of Judge Schneider follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Cornyn. Well, thank you very much, Justice
Schneider. Since you and I know each other very well, I think
we are going to--I am going to ask a few questions for the
record, and I think I already know what your responses in a
general fashion are likely to be. But you, as we have heard,
have served at all levels of the Texas judiciary, starting at
the municipal court level and now serving on the Texas Supreme
Court. Your job as a Federal district judge, a trial judge in
the Eastern District of Texas will be somewhat different from
what you have been doing, at least lately.
Have you had a chance to look into the docket of that court
to which you will be confirmed to see sort of the nature of the
caseload? And give us your ideas and thoughts about how you
would expect to manage that docket.
Judge Schneider. Well, Mr. Chairman, I'm glad you asked
that question. Actually, I had a chance back in January to look
at their docket, and anything I would tell you now would relate
back to that. But at that time, it appeared that this docket
was almost evenly split between civil and criminal work. A
number of those in the civil cases are those cases that are
routine type cases. So that most of the docket, though, most of
the time, as I understand, in trial is spent in civil cases.
Moving to this bench is one of, I guess, the parts of life
that you see as serendipity. My good friend, John Hannah, whom
all of you heard a while ago, he and I were of different
political parties. We met in law school, and we became close
friends. And we found that we agreed on more things than we
disagreed. And on those things we did disagree, we had good
conversations.
When John Hannah passed away, I had some Republican and
Democrat judges come to me and ask me if I would consider
applying, and I had never done--given it any thought before. I
had never had an opportunity to file, really. I have been so
busy in my judicial career. But I did it. I look forward. I
think that this particular judicial Federal district bench is a
perfect fit for someone who has had not only trial experience
but also has experience writing opinions. I've written over 400
opinions, and as we all know, district courts publish opinions.
They go in law books that are published that people have to
buy.
Also, another thing I think that uniquely qualifies me for
this job is that I've had experience in the law in so many
different places--criminal and civil. I started out as a
district attorney, and then civil, and further went to the
court of appeals. We had criminal and civil cases.
In addition to that, I've had litigation experience, tried
hundreds of cases. And then, of course, last, not least--it's
not even last. As a trial attorney, I've tried well into 100
cases. I know what it's like to try a case, and so that won't
be new to me. And that's part of the reason--I know that was a
long answer, but you seem to want to hear it, so there you go.
Senator Cornyn. Thank you, Judge. You answered part of my
next question, and that is about criminal law. Of course, you
are going to have a docket of criminal cases, and we all know
that in your current job, you hear only civil cases on the
Texas Supreme Court. But you have had extensive experience both
as a judge and a lawyer handling criminal cases as well,
haven't you?
Judge Schneider. Yes, sir. Our docket was about 60 percent
criminal cases.
Senator Cornyn. And this court, of course, Judge Hannah sat
in Tyler, but we know the Eastern District covers a large
section of the State. Could you talk a little bit about your
roots in that part of the State? I think members of the
Committee and others listening might be interested in that
since you are currently working in Austin, wondering how you
were plucked out of Austin and are going to be put in a court
over in the Eastern District.
Judge Schneider. Well, I'm glad you asked that. I have to
put it in context. My father was a Methodist minister, and
years ago, in places like Texas--they may well have changed
this, but the young ministers moved from community to community
about every 2 years. If you were really good, you might stay 2-
1/2 years someplace.
What happened to me was that by the time I finished school,
I'd attended eight different schools in East Texas, and in this
particular district we're talking about here, I have physically
lived in ten of the counties that are there.
In addition to that, my grandfather and all my distant
relatives on my mother's side settled in Smith County in the
1860's. My mother lives in Lufkin, and that is a very big
reason for me even being more excited about the possibility, if
I'm fortunate enough to be confirmed to this position.
Senator Cornyn. Could you talk a little bit about your
judicial approach, judicial philosophy? In particular, I would
be interested to hear you discuss briefly your approach to
interpreting statutes written by the legislative branch and how
you approach that responsibility as a judge.
Judge Schneider. That is another good question, Senator,
Chairman Cornyn. Let me say that I think the very first rule I
always start out with when I look at a statute is to start out
with the presumption that it's going to be constitutional. I
think once you start there, sometimes your battle is--you have
moved the ball a good distance. So if you start with that
premise and then go to the next, look to the literal meaning,
the words of the document, if it happens to be a contract or a
statute itself. And you look and you interpret them and use and
apply their ordinary meaning, not something absurd.
You do that only, of course, if the words are not clear
that you would go to any other sources. I know that some judges
who are into legislative history that that is a matter that has
to be--you have to set the standards on those things, and
usually when I interpret cases, we do it basically on what the
four corners of the documents are and what the legislature said
they wanted. Because we have to keep in mind the laws are
drafted by a law-making group that has more practice and more
experience as to what the law should be. And keeping that in
mind, I try to apply what the legislature intended.
Senator Cornyn. Well, I know from your long experience as a
judge that you have done that a lot. You recognize the role of
the legislature as the representative branch of Government to
say what the law is, and it is your job, if it is called into
doubt or if there are conflicting provisions or statutes
raised, to interpret what the legislature's true intent was.
I would like to ask you, though, there are some people who
think that Federal judges' main job is to do justice. And I
would agree with that myself, but I would also say that you are
tethered by laws that have been written, whether it is the
Constitution or by statutes that have been written by the
legislature. How do you approach a case where your sense of
justice is that maybe a case ought to come out in a particular
way--in other words, a result ought to attach--but there is a
statute or a constitutional provision that would appear to
prevent you from reaching that particular result? How do you
see the role of a judge relative to the legislature and
relative to other branches of Government in determining that
just results occur?
Judge Schneider. Well, Mr. Chairman, the system we have
doesn't always produce a perfect result, and that's why we have
all our systems built in to make sure that the procedures that
to some people seem ridiculous, but the purpose of it is to
make sure that people get a fair trial.
Judges faced with an issue as you described must first
apply the law, and there are areas in equity, so to speak, that
you can take that into account. And I see it done every day,
both from being an appellate judge and watching trial judges,
and you will do that because I guess I'll get over in the area
of judicial discretion, because there are so many rulings that
would be incidental to other people, but it's very important to
the people in the courtroom. In that particular situation, you
do get to use your judgment on a lot of cases, and you can give
some flexibility.
The thing we have to watch out about, justice is a fine
word, and we're all for justice. But it has to be--we have to
know that justice also means that we have a fair trial and that
everyone was heard that needed to be heard.
Senator Cornyn. Well, I agree with your response. I would
say that, you know, one of the things that I think some people
have a difficult time comprehending is the importance that
everyone's conduct be judged by the same rules, by the same
laws, regardless of whether they are a sympathetic party to a
lawsuit or an unsympathetic party. Sometimes we hear people
talk about how corporations maybe should not be judged the same
way an individual is. But, of course, under our laws, they are
both judged by exactly the same rules, with some minor
exception in terms of the way corporations are formed and that
sort of thing.
And, of course, the rules by which evidence is admitted and
the like apply the same to everybody, and indeed, I am reminded
of the phrase over the Supreme Court of the United States
building that says, ``Equal justice under law.'' And that is,
of course, what we strive for. We strive for justice, but we
also strive to make sure that that justice is equal and applied
across the board regardless of how much money you have or where
you came from or whether you are popular or unpopular. And I
know your record of judicial service and your long experience
has well prepared you to do justice, but to make sure that you
do your job, and that is to apply the law as the legislature
has written and not just substitute your own personal sense of
justice for what the law actually is. But it is, as you know, a
struggle that every judge goes through in any given case, but
certainly there is no greater position from the standpoint of
seeing that justice is done in each individual case than that
of a Federal district judge.
Some have said that the most powerful public official in
America is a single Federal district judge because of the great
discretion and authority that you do have in a given case to
see that the correct result is reached consistent with the law.
I know we could talk for much longer, but as I say, I know
you well as a friend and somebody whom I respect and admire
professionally. And I know, as I said, that other Senators may
have questions for you, but were not able to attend here today.
And we will leave the record open until 5 o'clock next
Wednesday for any other Senators who may have additional
questions they would like to ask you in writing to submit those
to you. And I would, of course, urge you to respond as promptly
as you can.
It is my hope that your nomination will be promptly marked
up before the full Committee and then will be voted out onto
the floor. And because you do enjoy support from both sides of
the docket, from both major political parties, as we have seen,
because of your record of fairness and distinguished service as
a judge, it is my hope and certainly my expectation that your
nomination will not be controversial and that you will be
quickly confirmed. That is my hope and certainly my
expectation.
But I want to say finally, thanks to you for being here
today, for making yourself available to serve in this important
position. It is not everyone who is willing to make the changes
in their life, whether it is to move from place to place or
changes in salary, or whatever it may be, to serve in public
office. And you are to be commended for this logical conclusion
to the service you have already provided in our judicial branch
of Government. And we are better for having that service and
people like you willing to serve in these important positions.
But, with that, this hearing will be concluded, and as I
said, the record will remain open until 5 o'clock next
Wednesday for any other materials, any other statements, any
other questions to be submitted for the record.
Thank you very much.
Judge Schneider. Senator, may I say just one thing?
Senator Cornyn. Certainly.
Judge Schneider. You know, when you get to these things,
all the work of what you see here is 5 minutes of the work, and
I know that I have a staff at home at the Supreme Court, and I
just want to tell the staff people here, give you some credit
for your hard work that you do. I know how hard you do it, and
I know it is for the big bucks you are doing it. But--that was
a joke, folks.
[Laughter.]
Judge Schneider. But just to tell you that--and I'm saying
this word from my clerks back home, too, how much that is
appreciated in putting these things together.
Thank you.
Senator Cornyn. Well, I think those are very appropriate
remarks. We know the staff works very hard to make sure that
when we come to these hearings that things move very quickly
and expeditiously, and we appreciate their efforts to make sure
that this hearing could occur promptly, and hopefully your
nomination will be marked up and then voted out of the Senate
as soon as possible.
With that, this hearing is concluded.
[Whereupon, at 10:35 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF SUSAN B. NEILSON, OF MICHIGAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT; MICAELA ALVAREZ, OF TEXAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS; KEITH STARRETT, OF
MISSISSIPPI, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
MISSISSIPPI; AND RAYMOND L. FINCH, OF THE VIRGIN ISLANDS, NOMINEE TO BE
JUDGE FOR THE DISTRICT COURT OF THE VIRGIN ISLANDS FOR A TERM OF TEN
YEARS [REAPPOINTMENT]
----------
WEDNESDAY, SEPTEMBER 8, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Cornyn, and Leahy.
Chairman Hatch. We are happy that you are all here. I will
reserve my remarks until after my colleagues make theirs, but I
will make some remarks in the end. So we will begin with
Senator Lott--oh, excuse me. I guess Senator Cochran first. I
didn't notice you there.
Senator Cochran, we will take you first and then Senator
Lott.
PRESENTATION OF KEITH STARRETT, OF MISSISSIPPI, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY
HON. THAD COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much. It is a
great pleasure for me to be before the Judiciary Committee
today to endorse and recommend to the Committee the
confirmation of Keith Starrett, a circuit court judge in our
State who has distinguished himself by his excellence, in terms
of professional competence and innovation as a trial judge
dealing with first offenders, establishment of drug courts, and
in general elevating the quality of judicial administration in
our State over a period of 15 years, during which he has served
as a circuit court judge.
He has experience as a prosecuting attorney, an assistant
district attorney, as the office is called in our State. He has
bene in private practice as a lawyer in our State. He graduated
from the University of Mississippi Law School, Mississippi
State University undergraduate school. He has a lovely family,
a wife and three grown children. They have been a credit to
their community, and it is really, with a sense of pride and
expectation of his excellence of service as a United States
district judge that I recommend him to the Committee.
I hope the Committee can act expeditiously to report the
nomination to the Senate, and we will be glad to work as hard
as we can with the distinguished Chairman and other members of
the Committee to get this nomination approved by the full
Senate.
Thank you very much.
Chairman Hatch. Thank you, Senator Cochran. That is great
praise for Judge Starrett, and we have nothing but high regard
for him, and we will do everything we can to get him through
following this hearing. We appreciate you appearing here. We
know how busy you are. So, whenever you need to leave, that
would be fine.
Senator Lott, we will turn to you now.
PRESENTATION OF KEITH STARRETT, OF MISSISSIPPI, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY
HON. TRENT LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Thank you, Mr. Chairman, and my colleagues,
Senator Cochran, Senator Cornyn. I must say, Mr. Chairman, we
appreciate you moving forward with these hearings and
continuing to act confirm judges as we did just yesterday in
the full Senate. I think it is very important that we continue
that effort.
I do not want to repeat everything my colleague from
Mississippi has said. I just want to heartily endorse the
nomination and hopefully the confirmation of Judge Keith
Starrett to the Southern District of Mississippi. He is truly
one of the most respected and experienced trial court judges in
the State court system in Mississippi, and I want to take just
a moment before going any further to recognize the fact that
his lovely wife Barbara is here with him today. And we all know
that the spouses have to put up with a lot of things to support
our careers in Congress and the Federal judiciary, also.
Senator Cochran noted his educational background. he has
got the type of educational experience obviously he needs. He
has completed a number of courses at the National Judicial
College. He has been very active and understanding in doing his
job on the circuit court there in Southwest Mississippi.
He practiced law for 17 years, was an assistant D.A. and
has been on the bench for 12 years. The most impressive thing
though that I have seen, he has not been content just to be a
presiding circuit court judge, he has been an innovator, an
activist in trying to deal with some of the serious problems
that we have in our State and across this country. He
established the first felony level drug court in Mississippi in
his State judicial district. The court has been used as a model
for the creation of other drug courts in the State. Judge
Starrett's experience and involvement in this area has been
critical and a driving force as Mississippi works to implement
the drug court system for the entire State, and he has been
recognized for that effort throughout the State and in the
profession.
He is active in his church and his community. He helped
found the Mission Pike County, which is a racial and
denominational reconciliation organization and the Southwest
Mississippi Child Protection, a child advocacy group in two
counties in his circuit district. He also received the 2003
Judicial Excellence Award given by the Mississippi Bar
Association, which is a great honor.
I do want to note one additional thing, and that is that
this position is considered to be one of the 14 judicial
emergencies in the country, and this one has the highest rating
in terms of case load. It is weighted/adjusted filings per
judge of all of the 14 judicial emergencies. There is a lot of
activity here, and they are sinking under the volume. They need
the help of a judge being a confirmed and an active judge
sitting in the Southern District of Mississippi. I hope that
will weigh on the consideration of the Committee and the full
Senate. When we have what is identified as judicial
emergencies, and then we recognize that this is the tops of
that list of 14 emergencies, I hope we could move this
nomination expeditiously and before the Senate finishes for the
year. So I heartily endorse this nomination. He is a good man,
a good judge. He will make an excellent Federal judge.
And I thank the Committee for this opportunity to be here
today.
[The prepared statement of Senator Lott appears as a
submission for the record.]
Chairman Hatch. Well, thank you both. He has the highest
rating from the American Bar Association as well--
Senator Lott. Yes.
Chairman Hatch. --which is much to his credit, and we
appreciate both of you showing up here today. We will let you
go so you do not have to sit around and listen to me, but we
are going to turn to Senator Hutchison at this time and then to
Senator Cornyn, and then we will go to our delegates.
PRESENTATION OF MICAELA ALVAREZ, OF TEXAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, BY HON. KAY
BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Well, thank you very much, Mr. Chairman.
I am here today to introduce a fellow Texan, Micaela Alvarez,
who is being nominated for the Southern District of Texas, and
it is most certainly one of the emergency districts as well. It
has one of the highest caseloads. It is one of the areas where
we have added judges because of the high caseload on the border
with Mexico. So we are very hopeful that we can get Micaela
Alvarez approved expeditiously, so that we can get the help
that we greatly need on the border.
She has a number of her family with her today--Evencio
Alvarez, her father.
Chairman Hatch. I am so happy to welcome you here.
Senator Hutchison. And Gloria Johnson, her sister.
Chairman Hatch. Gloria, nice to have you with us.
Senator Hutchison. Michael Johnson, her nephew.
Chairman Hatch. Michael, good to see you.
Senator Hutchison. First Sergeant Maria Marty, her sister.
Chairman Hatch. We are really proud to have you here.
Senator Hutchison. Miranda Marty, her niece.
Chairman Hatch. Miranda.
Senator Hutchison. And Olivia Olmos, her niece.
Chairman Hatch. Olivia, nice to have you.
Senator Hutchison. And she also has three children who were
not able to make it, but Senator Cornyn and I were very pleased
to nominate Micaela for this vacancy. Her familiarity with the
region and her years of experience in public and private sector
are very impressive.
Since 1997, she has been in private practice in McAllen,
Texas. Prior to serving as a partner in her own firm, she was
appointed by then-Governor Bush to serve as the presiding judge
for the 139th District Court in Hidalgo County from 1995 to
1996. In addition to her distinguished legal career, she has
been a case manager for a State school in Gonzalez, Texas, and
a social worker in Lockhart. She has served as a board member
of the State Office of Risk Management, as a member of the
Presidential Commission of Educational Excellence for Hispanic
Americans appointed by President Bush in 2001. She earned her
bachelor's degree from the University of Texas at Austin in
social work in 1980 and her law degree from the University of
Texas in 1989.
Her qualifications, her knowledge of and commitment to
South Texas and her experience combine to make her a fine
candidate for the Federal bench, and we hope that we can have
an expeditious hearing and confirmation so that she can go down
to the Southern District, which is just overloaded right now by
its position on the boarder, and we definitely need to give
that area help, which they deserve to have justice and their
area served.
Thank you, Mr. Chairman, and I am very pleased to be here
for Micaela.
Chairman Hatch. Thank you, Senator Hutchison. I think it is
terrific that you can take the time to show up and speak for
Micaela. We are grateful to have you here. We know how busy you
are, so we will let you go, if you would like, but we will turn
to Senator Cornyn for his remarks.
PRESENTATION OF MICAELA ALVAREZ, OF TEXAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, BY HON. JOHN
CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman, and I want to join
in the remarks of Senator Hutchison in saying how delighted we
are that you have seen fit to schedule this important
appointment for a hearing. Senator Hutchison has already
covered much of what I would like to have said, but what I
would like to do is ask that my complete remarks be made part
of the record.
Chairman Hatch. Without objection, we will put all of the
remarks in as fully delivered.
Senator Cornyn. Let me just briefly read an excerpt from a
book that was written by Governor Bush in 1999 before he became
President of the United States, where he spoke specifically
about the appointment that Senator Hutchison alluded to earlier
when he appointed Micaela as judge of the 139th Judicial
District in Hidalgo County. He wrote, ``Micaela's parents were
migrant farmworkers who traveled from job to job on farms
throughout Texas and the Southern United States. For them,
Micaela was not just a success story. She was living proof of
what they had lived for and promised their children; that in
Texas and America, if you work hard, get a good education, make
good choices in life, you can be whatever you want to be.''
And I can assure you that when her mother held the Bible
for Micaela to take the oath of office to serve the State of
Texas as a district judge there was not a dry eye in the packed
house.
So the appearance of Judge Alvarez before this Committee
today is just another inspiring example of the American Dream
becoming a reality, and she deserves this Committee's support.
And I am pleased that the President has seen fit to nominate
her for this important bench and that Senator Hutchison and I
have had the opportunity to recommend her for this important
position.
Thank you very much.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Senator.
We are very happy to have our two Senators from Texas
appear on behalf of this nominee. I think it weighs very, very
heavily in your behalf, Ms. Alvarez.
I do not know if Representative McCotter is here, but if he
is not, we are going to turn to you, Delegate Donna
Christensen.
PRESENTATION OF RAYMOND L. FINCH, OF THE VIRGIN ISLANDS,
NOMINEE TO BE JUDGE FOR THE DISTRICT COURT OF THE VIRGIN
ISLANDS FOR A TERM OF TEN YEARS [REAPPOINTMENT], BY HON. DONNA
CHRISTENSEN, A DELEGATE TO CONGRESS FROM THE VIRGIN ISLANDS
Delegate Christensen. Thank you. Good morning, Chairman
Hatch, Senator Cornyn, Senator Durbin. It is a pleasure to be
before the Committee today.
Chairman Hatch. We are happy to have you here.
Delegate Christensen. And it is a very special privilege
and honor for me to present a friend, a son of my home island
of St. Croix and also the son of a very distinguished Virgin
Islands' family, the matriarch of which is one of my dearest
former patients and role models, the son of Wilfred and Merrill
Finch, Hon. Raymond L. Finch, has been a judge of the District
Court of the U.S. Virgin Islands since September 1st, 1994. He
is currently serving as the Chief Judge of our district, having
assumed that position in August of 2000.
We are pleased at this outstanding individual, who has
served the law and the bench so faithfully and so well, Judge
Raymond Finch, is again before the Committee today having been
nominated to serve a second 10-year term by President George W.
Bush.
Today, harkens back to one of my very first efforts as a
community activist when I returned home in the late seventies,
a coalition I spearheaded to have a local lawyer fill a vacancy
in the District Court. Judge Finch was one of those we sought
to have seated at that time. Indeed, the road to his actually
being confirmed was a relatively long and circuitous one.
President Jimmy Carter first nominated him in 1990, but that
nomination expired when the Senate adjourned without taking
action and President Carter was not reelected.
His second nomination by President George Herbert Walker
Bush in 1992 suffered a similar fate. Finally, Judge Finch's
third nomination by President William Jefferson Clinton
succeeded, and he began his active service on the Federal bench
in 1994. The fact that both Republican and Democratic
Presidents have nominated Judge Finch speaks volumes to his
character and his testament to his sterling judicial
qualifications.
Let me also use this opportunity and digress somewhat from
my presentation of the nominee for a brief moment to say, on
behalf of my constituents and both Judge Finches before us
today, and Attorney Curtis Gomez, who was reported out of the
Committee several months ago, that I would not only ask for a
timely vote on this nominee, but also respectfully request that
the Committee use its influence to have both of our outstanding
nominees confirmed by this body before it adjourns so that the
history that I have shared with you does not repeat itself and
in order that the District Court of the Virgin Islands can have
the stability and the continuity it needs to optimally serve
both our territory and our Nation.
Ray is a product of the Virgin Islands public school
system, where my grandmother found him one of her best
students. And he is a graduate of the distinguished Howard
University, where he received both his undergraduate degree in
political science and economics and his juris doctorate. Judge
Finch's notable written legacy is contained in a prolific
collection of memoranda, opinions and decisions which
eloquently blend interpretations of law with relevant Virgin
Islands' cultural nuances, likely found their origins during
his tenure as the assistant editor of the famous Hilltop campus
newspaper at Howard.
Judge Finch is a Vietnam veteran, who served this Nation
with distinction in the U.S. Army, attaining the rank of
captain. He was awarded the Army Commendation Medal, the Bronze
Star, and a Certificate of Appreciation from then-Army Chief of
Staff General Westmoreland.
Prior to his appointment to the Federal judiciary, Judge
Finch served in the Territorial Court of the Virgin Islands and
distinguished himself there for his reliable impartiality, his
consistent judicial temperament, and as one of the few judges
who could explain the complexities of juris prudence in a
manner that could be easily understood by anyone who came
before him. He is also known for well for his wry sense of
humor that often catches one by surprise.
Judge Finch has not only lent his judicial experience and
expertise as an instructor at our own University of the Virgin
Islands, but has furthered and expanded his own knowledge and
judicial acumen through seminars and short courses taken
through his legal and judicial career.
He is a member of a Virgin Islands family that has made
impressive and outstanding generational contributions in
various capacities through their exemplary and impeccable
service to the local Virgin Islands Government, the Federal
Government and in the private sector.
He is the father of five, and he is married to Anne Marie,
who, with his daughter Jennifer, joins him this morning. He is
also accompanied by former Senator Malloy and two young
attorneys whom he mentored, Robert Malloy and Jeffrey
Moorehead, also from the Virgin Islands.
On behalf of the people of the Virgin Islands, I am
exceptionally proud to reintroduce to the Senate Committee on
the Judiciary one of our brightest and one of our best, our
chief district court judge, Hon. Raymond L. Finch.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you so much. We are
exceptionally proud to have you here today.
Delegate Christensen. Thank you.
Good morning, Senator Leahy.
Chairman Hatch. I think that speaks well for the judge that
you would appear, and thank you for being here.
Unless Congressman McCotter is here--is Congressman
McCotter? We would love to take your statement at this time.
Thank you. Glad to have you here. Welcome.
PRESENTATION OF SUSAN B. NEILSON, OF MICHIGAN, NOMINEE TO BE
CIRCUIT JUDGE FOR THE SIXTH CIRCUIT, BY HON. THADDEUS MCCOTTER,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Representative McCotter. Thank you. I am new to this, so
the first time is always the most painful is what I am told.
Chairman Hatch. Just take it easy. You will be just fine.
We are glad to have you here.
Representative McCotter. Mr. Chairman, distinguished
Committee members,thank you for holding this hearing and for
allowing me the privilege of introducing Susan B. Neilson.
Judge Neilson is a graduate of the University of Michigan,
the Wayne State University School of Law, and was formerly a
partner at Dickinson Wright. She was appointed to the Third
Judicial Circuit Court of Michigan in June 1991 and was
reelected three more times in 1992, 1996 and 2002.
Now, she will stand before you today for your esteemed
consideration for a seat on the U.S. Circuit Court of Appeals
for the Sixth Circuit. Here are a few words from those who have
looked at her qualifications and have held her in high regard.
Mark Corrigan, the chief justice of the Michigan Supreme
Court has said, ``Judge Susan B. Neilson has earned the
reputation of being one of the most dedicated and knowledgeable
trial court jurists in the State of Michigan. I believe her
experience as a trial court judge, coupled with her legal
writing abilities, will make her an outstanding addition to the
U.S. Court of Appeals for the Sixth Circuit.''
Mr. Roger Winkelman, treasurer of the Michigan Democratic
Party, ``I have known Judge Neilson for many years. She is well
deserved of her reputation as a fair-minded judge who treats
all parties who appear before her with a high degree of respect
and dignity. Her knowledge of the law and dedication to
rendering rulings in conformity with controlling legal
authority will make her an excellent addition to the Court of
Appeals.''
Finally, from Thomas G. Kienbaum, past president of the
State Bar of Michigan, ``I know Judge Neilson as a fellow
lawyer, a law partner, and more recently as a trial judge when
I appeared before her. She brought unique qualities to the
bench, a quick, perceptive mind, and a tremendous work ethic
which she applies evenly to all matters that come before her,
when appropriate, with a degree of good humor. She has an
unbridled enthusiasm for the law, even with respect to the most
tedious aspects of the work required of judicial officers.''
Mr. Chairman, Judge Susan Neilson is an exceedingly
learned, profoundly fair, morally fit, and professionally
qualified person who would make an excellent addition to the
U.S. Court of Appeals for the Sixth Circuit.
I thank you, Mr. Chairman, and all of the members of your
Committee for holding this hearing.
Chairman Hatch. Well, thank you, Representative McCotter.
We are grateful that you would take time to come over from the
House to give us this understanding. And of course the ABA
agrees with you. She is unanimously Well Qualified--the highest
rating they can have or they can give anybody.
So thank you, and thank you both for appearing. We
appreciate all who have appeared here today. So we will release
you and move from here.
I think we will make our statements, and then we will turn
to Judge Neilson.
OPENING STATEMENT OF ORRIN G. HATCH, A U.S. SENATOR FROM THE
STATE OF UTAH
Chairman Hatch. I want to welcome members of the Committee
and express my, and all of the folks in the audience, and the
nominees and their friends and families, express my
appreciation for the cooperation we had yesterday in confirming
three additional judges. I know there may be some resistance to
continuing the work of the Committee, but we simply must do our
duty to advice and consent on judicial nominations. I would
repeat what I have stated on earlier occasions--our
constitutional duty is not on a mythical time line or time
clock.
The judicial nominations process does not shut down during
presidential election years. For example, when Senator Thurmond
chaired this Committee during a presidential election year, the
Senate confirmed six circuit judges after August 1st--one in
August and five in October. In addition, 12 district judges
were confirmed in September and October of that year as well.
I will follow that approach and continue to bring the
President's nominees to the Committee for action and to the
Senate for consideration.
On today's agenda are four nominees to various positions
with the Federal judiciary. I welcome each one of you, your
family members, your guests and friends. We are also
privileged, as we have noticed, to have had members of the
Senate and House welcome each of you as well.
The nominees we will hear from today are Susan B. Neilson,
nominated to be United States Circuit Judge for the Sixth
Circuit; Micaela Alvarez, to be United States District Judge
for the Southern District of Texas; Keith Starrett, to e United
States District Judge for the Southern District of Mississippi;
and Raymond L. Finch, to be Judge for the District Court of the
Virgin Islands for a term of 10 years. It would be a
reappointment.
Judge Neilson is an outstanding candidate who received a
unanimous Well Qualified rating, the highest rating, from the
American Bar Association. She graduated with high distinction
from the University of Michigan Honors College in 1977 and was
elected to Phi Beta Kappa. Judge Neilson received her J.D.
degree cum laude from Wayne State University School of Law in
1980 and was a member of its law review. Following her
graduation, Judge Neilson began her legal career in 1980 as an
associate at the Detroit law firm of Dickinson Wright PLLC, one
of the oldest and most prestigious law firms in Michigan. She
became a partner in the firm in 1986 and continued to practice
there until 1991. While in private practice, Judge Neilson
appeared in court on a regular basis and handled hundreds of
cases at both the trial and the appellate levels.
She was appointed to her current judgeship on the Third
Judicial Circuit, the trial court bench in Michigan's State
court system, in 1991 by Governor John M. Engler, and was
reelected in 1992, and 1996 and 2002. She presently is assigned
to the Criminal Division of the Court. And during her tenure on
the Court, she has served in the Civil and Family Divisions and
on several Court administrative committees.
Micaela Alvarez, nominated to be United States District
Judge for the Southern District of Texas, is an experienced
attorney and trial judge. She began her legal career in 1989 as
an associate litigation attorney at the law firm of Atlas &
Hall, L.L.P., in McAllen, Texas, where she handled all types of
litigation, but primarily insurance defense, employment defense
and wrongful discharge defense.
Four years later, Judge Alvarez joined the law offices of
Ronald G. Hole, where she maintained her initial practice and
expanded it to include medical malpractice defense and products
liability. In 1995, Judge Alvarez served as the presiding judge
to the 139th Judicial District Court, Hidalgo County, Texas.
After a little more than a year on that court of general
jurisdiction, Judge Alvarez rejoined the law offices of Ronald
G. Hole and was promptly made a partner. She has remained at
the firm since 1997.
A majority of the ABA Committee has recognized this
seasoned nominee with a Qualified rating, and I look forward to
hearing from her today. Judge Alvarez brings a wealth of
experience to the Federal bench and will make an excellent
addition to the Southern District of Texas.
Keith Starrett is our nominee for the U.S. District Court
for the Southern District of Mississippi. Judge Starrett is an
experienced and accomplished jurist, having served as a Circuit
Court Judge for the State of Mississippi since 1992. Since
1995, he has retained his seat on the bench via election. The
American Bar Association unanimously gave him its highest
rating of Well Qualified. The Mississippi Bar Association
awarded him with the Judicial Excellence Award in 2003.
Undoubtedly, he will be a wonderful addition to the Federal
bench, so welcome him as well this morning.
Raymond Finch has been renominated to a second term as
United States District Court for the Virgin Islands. This
Committee has seen few nominees with as much experience as
Judge Finch. As an attorney, he tried approximately 200 cases
to verdict or judgment. In addition to his litigation
experience, he has been a judge for nearly 30 years, having
first been appointed to the Territorial Court of the Virgin
Islands in 1976. He was confirmed as a U.S. District Judge for
the Virgin Islands in 1994 and was promoted to Chief Judge of
that District in 1998. The ABA has recognized the extensive
experience of this fine nominee by awarding him a Majority
Qualified/Minority Well-Qualified rating.
So it is our privilege to welcome all of these
distinguished nominees to the Committee, and I do look forward
to their testimony and appreciate those who have testified for
them up to now.
With that, we will turn to our distinguished Democratic
leader on the Committee, Senator Leahy.
[The prepared statement of Chairman Hatch appears as a
submission for the record.]
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman.
Mr. Chairman, as I have expressed to you privately and I
will express publicly, I am concerned about the Republican
majority's disregard for the rules and the traditions and
precedents of the United States Senate and of the Judiciary
Committee. It really is something to behold, and I think this
hearing marks yet another milestone in Republicans' break from
their adherence to the so-called Thurmond rule and their own
prior practices. In many ways--and the reason I came by this
hearing is to point out in many ways this hearing joins a long
list of double standards imposed by the Senate Republicans--the
double standard from the way that home-State Senators are
treated, to the way hearings are scheduled, to the way the
Committee questionnaire was unilaterally altered, to the way
our Committee's historic protection of Committee Rule IV has
been violated. In all these areas, Senate Republicans have
destroyed virtually every custom and courtesy that used to help
create and enforce cooperation and civility in the confirmation
process.
In addition to holding yet another hearing for a Sixth
Circuit nominee without the approval of her home-State
Senators, the majority is openly ignoring another longstanding
practice by holding a nominations hearing after Labor Day in a
Presidential election year. Now, this was a Republican-imposed
rule not to hold such hearings after Labor Day in a
Presidential election year. It was enforced very rigidly when
Democratic Presidents occupied the White House, that certainly
after the political parties' Presidential nominating
conventions, they would not proceed with judicial nominations
hearings or votes, unless there was consent of both sides.
Now, as long as the Democrats were in the White House, the
Republicans insisted this had to be the rule. It always had
been the rule, always will be the rule. Oops, all of a sudden
there is a Republican President with the Republicans in charge
in the Senate, and the rule that they followed for 50 years or
more is out the window.
Now, we have done a lot by consent. Earlier this year we
proceeded with consideration of 25 judicial appointments to
lifetime nominations. Many, many of them were people that
Democrats would not have nominated. But in trying to help the
President and the Republicans in the Senate, we agreed to that
and fulfilled our understanding. Now, these hearings and these
nominees are not part of the agreement we made with the White
House and with the Republican leadership.
It has long been acknowledged that absent the consent of
the minority, the Senate awaits the results of the election and
the inauguration of a new President before acting on additional
judicial lifetime appointments. The Thurmond rule, as I said,
always applied when there was a Democratic President. It was
waived during a Republican President, as Senator Hatch has
referred to, but that was done with the consent of the
Democrats. The Thurmond rule was waived by the Republicans for
a Republican President, but with the consent of the Democrats.
It was not waived for a Democratic President.
Now, certainly with vacancies at an historic low level,
that practice, insisted upon by Republicans with Democratic
Presidents, would be followed. If President Bush is re-elected,
he can always renominate these people. But this hearing is
clear indication that Senate Republicans have no such intention
of maintaining a consistent practice. In another blatant double
standard, they have demonstrated their efforts to breach that
practice as well.
In 1996, when we had a Democratic President, President
Clinton, seeking re-election, the Republican-controlled Senate
Committee held only one hearing to consider one district court
nominee after the August recess. Of course, they then never
allowed that nominee to have a Committee vote. Indeed, that
nominee, Judge Ann Aiken of Oregon, was obstructed so severely
by the Republican majority that she was not confirmed to her
position until nearly a year and a half later, and then after
President Clinton had been overwhelmingly re-elected.
In 2000, a Presidential election year, the Republican-
controlled Committee followed the Thurmond rule to the letter.
After the August recess, work on judicial nominations came to a
halt. At that time, there were over 30 nominees pending after
July 25, 2000, but they were told, Tough, no more hearings, we
have always followed the Thurmond rule, we will always follow
the Thurmond rule, and so we are going to follow the Thurmond
rule. Well, that was then. After all, it was 4 years ago.
But now we have the ``by any means necessary'' approach
that has characterized this Republican leadership. Their
approach to our rules and precedents continues to follow their
own partisan version of the golden rule that he with the gold
rules. Today, after July 4th, after the Presidential nominating
conventions, and after Labor Day, the Republican majority has
scheduled a hearing for four judicial nominees, including one
to a circuit court opposed by both home-State Senators and done
so in a Presidential election year. In contrast to the stalling
that dominated Republican treatment of President Clinton's
nominees, now the Senate Republicans want to proceed to fill
judicial vacancies that have not even yet occurred. They want
to start nominating and putting through people for vacancies
not yet there and actually aren't going to occur until after
the election. Apparently they are somewhat concerned how the
Presidential elections may turn out.
Now, when you had a Democratic President's judicial
nominees, if one Republican home-State Senator objected, that
was it. The Committee would taken them no further. And as we
have seen so many times over the last 3 and a half years, the
Republican Senate perspective is far different when Democratic
home-State Senators object to a nomination. Before, if one
Republican objected, President Clinton's nominations would go
no further. Now, as we saw with the line that was crossed, a
line that Chairman Hatch said he would never cross, we held a
hearing for Henry Saad, a Michigan nominee to the Sixth Circuit
who was opposed by both his home-State Senators. I think it may
have been the first time that any Chairman, Republican or
Democratic, and any Senate Judiciary Committee proceeded with a
hearing on a judicial nominee over the objection of both home-
State Senators. It was certainly the only time in the last 50
years, and I know it has been the only time in the 30 years I
have been here. And having broken that longstanding practice
with Henry Saad, it has now been repeated again and again.
The Michigan Senators have come to the Committee time and
again to articulate their very real grievances with the White
House and their honest desire to work toward a bipartisan
solution to filling vacancies in the Sixth Circuit. Bipartisan
solutions have worked all the way around the country, but not
here. We should respect their views, as the views of home-State
Senators have been respected for decades. I have urged the
White House to work with them. I have proposed reasonable
solutions to the impasse with the White House, reasonable
solutions supported by many of the leading Republicans in
Michigan. The Michigan Senators have proposed reasonable
solutions, including a bipartisan--Republican and Democratic--
commission, which the White House continues to reject. This is
not the time to press ahead with yet another Sixth Circuit
nomination without a resolution to this impasse.
At that point, I would like, Mr. Chairman, to put in the
record letters from Senator Levin, the senior Senator from
Michigan.
Chairman Hatch. Without objection.
Senator Leahy. Also at the appropriate place, one from the
Magnolia Bar Association.
Chairman Hatch. Without objection.
Senator Leahy. I have also heard concerns about the
President's decision to nominate Keith Starrett to the vacancy
created when this President bypassed the Senate to appoint
Charles Pickering to the Fifth Circuit without seeking the
consent of the Senate. The letter that I have just put in the
record from the Magnolia Bar Association, a primarily African-
American bar association in Mississippi, is now part of the
record.
The Magnolia Bar's president, Crystal Wise Martin,
expresses the group's strong opposition to proceeding with
Judge Starrett's nomination, not only because it is so late in
the session, but also because, as she writes: ``[I]t fails to
remedy the egregious problem concerning the lack of diversity
on Mississippi's Federal bench.'' She points out that
Mississippi has the highest percentage of African-Americans of
any State, but so far has had only one African-American Federal
judge. She explains that the Magnolia Bar and the National Bar
Association have both made direct requests of the President
that he appoint at least one African-American to this seat.
During the consideration of Charles Pickering's nomination, his
son, Congressman Chip Pickering, reportedly expressed his
willingness to advocate for an African-American nominee if his
father received support from the Magnolia Bar. But the
administration did not honor that intention of proceeding with
a qualified African-American nominee for this judgeship.
As I said before, on the agenda we have a nominee for a
vacancy that does not occur until after President Bush's
election. One has to think that perhaps people are concerned
that the President is not going to be re-elected. Now, it could
be argued that for purposes of efficiency nominees can and
should be confirmed shortly in advance of the time the vacancy
they are filling actually arises, it is amazing that we are
going to start appointing people before there even is a
vacancy. It is astounding that the partisans who assiduously
followed the Thurmond rule and shut down consideration of
judicial nominees in the last 6 months of Presidential terms--
President Carter's, President Clinton's, for example--have now
reversed themselves to insist that vacancies, which will not
even arise until after the Presidential election, be filled
now. You know, I think about 10 years from now we are going to
have a couple other vacancies then. Maybe we ought to just fill
those, too, while we are at it. We could actually fill for the
next 30 years, go through all the things, just fill everybody
right now, and we would not have to do any more work.
Now, this President has seen more than 200 of his nominees
confirmed. There are more active judges sitting on the bench
than at any time in the Nation's history. Democrats have voted
for 98 percent of those judges. And I contrast that to what
happened when the Republicans were in charge and President
Clinton was President. They blocked so many nominees that we
ended up having vacancies exceeding 100 across this country. In
the 1996 session, when he was up for re-election, they blocked
17 judges from going forward.
Now, under our Constitution, the Senate does have an
important role in the selection of our judiciary. The brilliant
design of our Founders established that the first two branches
of Government would work together to equip the third branch to
serve as an independent arbiter of justice. They never said we
would be rubber stamps. I use two examples. The most popular
President in this Nation's history, George Washington, had the
Senate reject some of his judges. Franklin Roosevelt, when he
had an overwhelming Democratic majority in the Senate, the
Senate rejected his court-packing plan. We are supposed to be
independent, not a rubber stamp of the White House.
Conservative Republican columnist George Will recently
wrote: ``A proper constitution distributed power among
legislative, executive, and judicial institutions so that the
will of the majority can be measured, expressed in policy and,
for the protection of minorities, somewhat limited.'' The
structure of our Constitution and our own Senate rules of self-
governance are designed to protect minority rights and to
encourage consensus. Despite the razor-thin margins of recent
elections, Senate Republicans are not acting in a measured way,
but in complete disregard for the traditions of bipartisanship
that are the hallmark of the Senate.
We were able to have a variant on the Thurmond rule when
President Reagan was here because we worked on consensus, and
Democrats agreed to that. Now nobody even seeks consensus. I
think it is because Senate Republicans have acted to ignore
precedents, reinterpret longstanding rules to their advantage,
and when they cannot reinterpret them, they simply break them.
This practice of might makes right is wrong. It is also unfair
to the nominees who are here because, of course, it signals
what their chances are.
Mr. Chairman, I will put my full statement in the record.
Chairman Hatch. Well, thank you. We will put it in the
record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. But I feel like I have to take just a few
seconds to answer. I hate to take time from this hearing, but I
think it is important to set a few things straight in the
record.
There are grievances on both sides of this Committee. No
question through the years this is a hard-fought Committee. We
have lots of disagreements. There is a lot of partisanship on
the Committee, which I wish did not exist but it does from time
to time. Both sides have felt aggrieved from time to time, and
both sides have been right from time to time. Not always, but
from time to time.
But just to make sure the record is straight, there have
been approximately 78 judges confirmed--78--in the late summer
and fall of Presidential election years since 1980. That fact
alone demonstrates the illusory nature of what some call the
``Thurmond rule.'' I do not believe there is a Thurmond rule
and it never has been followed, as far as I am concerned, and
should not be followed now. But be that as it may, Senator
Thurmond did think he had a rule. But he himself broke it
continuously.
In 1980, this body confirmed one circuit judge currently
and nine district judges in the months of September and beyond.
I helped facilitate the confirmation of Stephen Breyer,
currently of the U.S. Supreme Court, to the First Circuit Court
of Appeals. That would not have happened had I not been on this
Committee as a Republican facilitating the nomination of
Stephen Breyer after President Reagan was elected. That
confirmation took place after the November 1980 Presidential
election. Now, that nomination was made by President Carter,
who had just been defeated by President Reagan, and yet we
acted on it.
I have a note that Senator Thurmond was the Ranking Member
of the Committee at that time. Now, 4 years later--and, by the
way, the others were Carter appointees, the other nine district
judges that were confirmed in September and beyond.
Four years later, when Senator Thurmond chaired the
Judiciary Committee, the Senate confirmed six circuit judges
after August 1st--one in August and five in October. Twelve
district judges were confirmed in September and October of that
year. Of course, President Reagan was the President, and the
Republicans had control of the Committee.
In 1988, when Senator Thurmond was the Ranking Member, two
circuit judges were confirmed in October and 12 district judges
were confirmed between the period of July 26th through October
14th of that year.
In 1992, the last year Senator Thurmond was Ranking Member,
the Judiciary Committee held a hearing for two circuit judges
on July 29th; two more hearings on circuit judges in August;
and another one in September. Five circuit judges were
confirmed between July 29, 1992, and October 8, 1992.
Let me reiterate that point: five circuit judges were
confirmed after July 29th. There were three in August, one in
September, and one in October. That is in addition to the 18
district judges who were confirmed in that same 3-month span.
So in 1992 alone, there were 18 district judges and five
circuit judges who were confirmed in the months of August,
September, and October. Now, that is a total of 23 judges who
were confirmed in the days and months leading up to a
Presidential election.
Indeed, one of my Democratic colleagues on the Judiciary
Committee acknowledged on the record a few years ago that, ``We
were confirming them''--that is, judicial nominees--``right up
almost to the last week we were in session.'' Well, my
Democratic colleague was absolutely correct.
In 1996, four district judges were confirmed in late July.
In 2000, nine judges, including one circuit judge, were
confirmed between July 21st and October 3rd. In all, since 1980
approximately 78 judges have been confirmed in the closing
weeks of the Congress during a Presidential election year. The
numbers speak for themselves. There is no Thurmond rule.
Again, when Senator Thurmond was Chairman of the Judiciary
Committee in 1984, there were 18 judges confirmed between
August 9th and October 11th. I think that Senator Thurmond's
record of confirming judges carries more weight and is more
convincing than some imaginary rule that has been attributed to
him.
Now, I reject the notion of this purported rule and would
hope that the service of the longest-serving and oldest member
to have served in this body would have been used in the manner
that I have heard repeated over and over in the Committee and
the Senate floor would not have been used in that way. But be
that as it may, even if there was a Thurmond rule set by one
person who did not control the whole Committee--and with which
many of the Committee would have disagreed, anyway, and still
do--our job is to confirm judges on this Committee, and we
ought to do that unless there is a reason not to. And that
means whether it is a Republican President or a Democrat
President. And I have always tried to do that.
Now, I have to say that the people who are nominees here
today are exceptional people. They deserve our efforts as a
Committee, our honest efforts to not only hold this hearing but
to have a markup for them and to have votes on the floor up and
down. I hope we can do that, and I intend to do that. And I
suspect that should the Democrats take over this Committee next
year or in the future, they will do the same for their
President, whenever he comes in. I certainly did what I could
for President Clinton. He was the second all-time champion in
confirmed judges, second only to Reagan, who has 6 years of how
own party to help him. Clinton only had 2 years. But he had me
as Chairman of the Committee, and I helped him. And he knows it
and I know it.
You can talk statistics both ways all day long, and I have
to say both sides of this Committee have been right many times
and both sides have been wrong many times. I would like to see
us do a better job on judges than we have done in the past, and
so far we are. And I want to thank my colleague Senator Leahy
for his cooperation throughout at least my chairmanship of this
Committee in helping us to confirm good people like the one we
have here today.
Now, with that, we will call on Judge Neilson--
Senator Leahy. Mr. Chairman, if I might, I will be very
brief.
Chairman Hatch. Sure.
Senator Leahy. An easy statistic to remember is that over
60 of President Clinton's nominations were blocked by the
Republicans, usually if only one Republican objected. It made
no difference what the other 99 might feel, but if one
Republican objected, they were blocked. The Thurmond rule, of
course--you know, Senator Strom Thurmond said, ``Today, Ronald
Reagan has agreed to ask Republican Members of the Senate to
block Presidential appointments to Federal posts until after
the November 4th election.'' That was on July 17th of 1980.
The fact of the matter is everybody in the Senate who
served during that time knows when exceptions were made to
that, it was made because both sides agreed, because the
Democratic and the Republican leadership agreed. And there were
exceptional cases where such agreements were made with both
Republican Presidents and Democratic Presidents--but only with
the consent of both sides.
Now we are told that consent is immaterial, past precedents
are immaterial, the fact that we blocked President Clinton's
nominations if just one of us objected, that is immaterial, we
are going to go forward with these. It is not the best way to
fulfill our advise and consent. Instead of being advise and
consent, the Senate turns into advise and rubber stamp.
Chairman Hatch. Well, it certainly is not the best way, and
I hope we can have some cooperation from your side so we can do
exactly what you have been saying. I remember your remarks made
a while back. Here there are: ``There is a myth that judges are
not traditionally confirmed in Presidential election years.
That is not true.'' You are right. That is not true.
Senator Leahy. That was in February--
Chairman Hatch. I think I made the case, 78--and, look, the
greatest case really was the confirmation of Judge Breyer, and
I was the one who helped bring that to pass, after President
Reagan was elected.
Well, so much for this argument. We are going to argue it,
I guess, forever. But to make a long story short, there are two
sides to it, I am sure. But I think the record speaks for
itself. And I just hope we will have some cooperation because
what we are trying to do is fill these positions with good
people. And some of these positions are absolute emergencies as
well. And what I am trying to do as Chairman of this Committee
is my job. And I would appreciate cooperation from the other
side if they care to give it.
So, with that, we are going to turn to Judge Neilson at
this point. Judge, we welcome you to the Committee. We know you
have waited a long time to have this hearing. We also know you
have gone through some very difficult times, and we are very
grateful to have you here. If you could raise your right arm,
do you swear that the testimony you are about to give before
this Committee shall be the truth, the whole truth, and nothing
but the truth, so help you God?
Judge Neilson. I do.
Chairman Hatch. Well, thank you, Judge.
Senator Leahy. I know you are not interested in what I have
to say, so I am going to leave.
Chairman Hatch. Judge, you can--I am interested in what you
have to say.
Judge I am happy to welcome you here. If you have family or
friends here you would like to introduce, we would certainly
like you to do that.
STATEMENT OF SUSAN B. NEILSON, OF MICHIGAN, NOMINEE TO BE
CIRCUIT JUDGE FOR THE SIXTH CIRCUIT
Judge Neilson. I would like to introduce my husband, Jeff,
who is with me. Our two daughters--
Chairman Hatch. Please stand as you are--
Judge Neilson. Oh, I'm so sorry.
Chairman Hatch. We are so happy to have you with us. No,
not you. Them. No, no, I want you to relax as much as you can.
Judge Neilson. Our two daughters started school today, so
they are not with us.
Chairman Hatch. We understand.
Judge Neilson. But I would like to thank and recognize in
absentia my wonderful parents and especially my sister, who has
been an incredible support for me over the past year. And I
want to thank you and, in his absence, Senator Leahy for coming
here today and allowing me to speak.
Chairman Hatch. Well, thank you. Would you care to make any
other statement? Would you care to make any other statement?
Judge Neilson. I am happy to answer any questions that you
may have, Senator.
[The biographical information of Judge Neilson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Hatch. Well, we are grateful to have you here. I
will put into the record a letter that I have received from
Senators Levin and Stabenow, or Senator Levin in this
particular case, and keep the record open for Senator Stabenow
if she cares to submit a letter or any other statement for the
record.
As you know, we have had a very difficult time here because
of a mix-up caused by both sides in many respects that did not
allow two of the Clinton judges to take their seats. In the
process, the Democrats basically said we are not going to allow
any Republicans, even though this circuit is in real dire
straits and does need judges.
I have been trying to work that out. I offered yesterday to
the distinguished Senators from Michigan to try and get two
additional judges, a circuit and a district court judge, in the
judgeship bill that should come over from the House if they
would allow an up-and-down vote for the four nominees. They
could argue against any one of you. They could make whatever
case they wanted to against Judge Saad in this particular case
that they are opposed to. I don't think they are opposed to the
other three circuit judges, except for this situation--I am
trying to resolve it--and the two district court judges. For
that, we would put one of the two who did not make it,
Democrats, on a district court seat if we could get those two
seats done; in other words, the House would pass a bill with
those two seats, and one would take a district court and the
other would take a circuit court of appeals. It would be up to
the White House to make that determination which one would get
which seat. But that would mean votes up and down for all eight
of the judgeship nominees. It would help Michigan, help the
circuit court of appeals in grand ways to be able to get this
done.
I have been told by the Senators that they would not allow
a vote up or down on Judge Saad, for whatever reasons, that I
am sure are sincere reasons on their part. And I am not sure
they would allow votes up and down on the others, but we are
going to proceed anyway. If they do not agree to that, then I
am not going to argue for two extra seats for Michigan, and
whoever wins the election will have the privilege of putting
these people through unless we can, between now and the
election, find a way to put the four of you through and the two
district court nominees through, because I presume that you
should have an easy time going through with a well-qualified
rating from the American Bar Association, the highest rating
they can possibly give, with absolutely stunning
recommendations from Democrats and Republicans in the State for
really all four of you who are nominated for the circuit court
of appeals, and because of the tremendous abilities that you
have.
I think it is a shame that we are in this mess because I
think Michigan suffers, I think the country suffers; certainly
the Sixth Circuit Court of Appeals is suffering; but most of
all, the litigants and the people who want justice in the
courts are suffering because that court simply cannot do its
job as well or as expeditiously as it should be done.
So your nomination here is very important. And as you can
see, we have little piques on the Committee, and they are cheap
little piques, it seems to me--p-i-q-u-e-s, I guess I spelled
that right--over nothing, when we ought to be--when we see fine
people like yourself, we ought to be doing everything we can to
make sure that you folks are given the privilege of serving.
And that is regardless of party, and I have always tried to do
that. And so I particularly resent the implication that while I
am Chairman, we are not trying to do what I have always tried
to do I helping the Democrats when they have been in charge
accomplish what they would like to accomplish for their
particular Presidents.
But let me ask you a few questions, Judge Neilson. I hope
that explains it a little bit.
Judge Neilson. Yes.
Chairman Hatch. I could get this done. I think the House is
bringing up that bill tomorrow or the next day. I could have
those two judgeships, I believe, in the House and then it would
have to come over here because there are additions to our
judgeship bill. It would have to come over here and be passed
by the Senate. I would hope that if we did that, the Democrats
not only would allow it to be passed by the Senate, because
many Democrats are getting judges in that bill. We have been
very fair in the bill. But not only that, we would be able to
resolve a lot of problems with that bill. And if we could do
that, then we would have votes up and down for all four
Republican nominees or President Bush nominees to the circuit
court. We would have votes up and down for the two district
court nominees, and I do not think there are any objections to
them either. And we would have votes up and down, and I would
recommend positive votes up and down for the two Clinton
nominees in the fourth year of the Bush administration.
Now, that is how far I have tried to lean over backwards to
try and resolve this problem for our Senators from Michigan.
And I do not think they will go for that because they do not
want Judge Saad to be able to serve on the circuit court of
appeals. I think they are tremendously mistaken in that, and I
think it is not the right thing for them to do. But I cannot--
you know, they are both good people, and they have their own
thoughts on this matter, and I just want the record to be
straight so that everybody understands I am doing my very best
to try and resolve this problem.
But be that as it may, if we do not have those two judges
added and there is any way we can get the four of you votes up
and down, I am going to do it before the end of this year. And
if not--and I hope with all my heart President Bush is re-
elected--then we are certainly going to put you four up and
pass you through in the next--
Judge Neilson. Well, on behalf of myself and all the
nominees, Mr. Chairman, we thank you for your efforts.
Chairman Hatch. Judge Neilson, as a Third Judicial Circuit
Court Judge, you do have a firsthand knowledge on how our
judicial system works. Everybody says that.
Now, how have these experiences shaped your views on the
proper role of a Federal judge within our political system?
Judge Neilson. A trial judge in Michigan sees a broad
variety of cases. I think that being a trial judge assists you
in looking at the law and in determining what law applies. You
see that in such a broad variety of context on the trial bench.
Chairman Hatch. What would you say has been your most
challenging case on your current court, and could you please
tell us on the Committee how you address that challenge and
what lessons you learned from it?
Judge Neilson. Mr. Chairman, it is hard to think of the
most challenging case. It probably depends on what day you ask
me. They all present somewhat of a challenge. I think that some
simple cases become very complex in the middle of trial. I
think that lengthy trials are challenging because you want to
make sure that everyone's rights are preserved, and it is
difficult when you have a lengthy trial. I cannot really make
any generalizations. I could not say to you products liability
cases are the hardest or medical malpractice, those are the
most complex, because I have had some very interesting cases
that some people would consider stem from very mundane facts.
Chairman Hatch. That is great. Your ability to
constructively interact with your fellow judges on the Sixth
Circuit will be, as far as I can see, an important element of
your work. Could you speak for the moment about the role and
significance of collegiality on the bench, and please indicate
how you would intend to contribute to collegiality once you
join the Federal bench?
Judge Neilson. I believe that a judge has a duty to set an
example of politeness, or listening to what colleagues have to
say. This does not mean that in any way you should change your
true values and true opinions for the sake of congeniality. But
there is no excuse for a judge not to be polite and respectful
to her colleagues.
Chairman Hatch. I note that you have done a great deal of
work with the Soroptimist International of Grosse Pointe, which
is the local branch of an international organization devoted to
improving the lives of women and children. Could you tell the
Committee about that experience and how that prepares you to be
a judge?
Judge Neilson. Well, Soroptimist International is a service
organization which attempts to better the lives of women and
children. Our local chapter focuses mostly on domestic violence
shelters and assisting them in providing for the women and
children who come there. There are many domestic violence
shelters that do not allow children to come with the mothers,
or there is no facilities for the children, and we attempt to
fill that gap.
Chairman Hatch. I really appreciate that because every year
I hold a charitable golf tournament to raise money basically
for women in jeopardy programs or domestic violence programs or
battered women programs, and this year we were able to
contribute to some 37 different programs in Utah, without
which, without that money they probably would not be able to
function anywhere near, but some of them are trying to do what
you have been trying to do. I appreciate your work in that
area.
If there were no controlling precedent dispositively
concluding an issue with which you were presented, to what
sources would you turn for persuasive authority?
Judge Neilson. Well, Senator, the first place a judge
looks, assuming a statute is involved, is the plain language of
the statute, and often even when there is no case authority
under the statute the language of the statute is clear and the
judge can rule based on the language of the statute.
Legislative history can be helpful. I like to use the word
``helpful'' not ``persuasive'' because the judge has to again
look at the plain language of the statute, and if it--if the
legislative history seems to say something different than the
plain language, I believe that the plain language is
controlling.
Chairman Hatch. And if you do not have a statute, what
would you turn to?
Judge Neilson. You mean if the decision is based simply on
case law?
Chairman Hatch. If you were on the Sixth Circuit Court of
Appeals, yes.
Judge Neilson. There are certainly cases of first
impression. Sometimes I look at cases from other jurisdictions.
Again, I would call them helpful because every State is
different, but there are certain general principles of law that
apply in most cases, and I apply them.
Chairman Hatch. As a Circuit Judge you would be looking to
the Supreme Court, I take it, for finding precedent.
Judge Neilson. Oh, of course.
Chairman Hatch. That goes without saying.
Judge Neilson. Correct.
Chairman Hatch. Can you please explain for the Committee
your views on the difference between binding legal precedent
and policy choices determined by elected officials and their
staffs? In other words, put differently, what is the proper
role for a judge to follow? Should the judge follow binding
legal precedent, or to shape the law to achieve a desired
result?
Judge Neilson. The judge should never change the law to
achieve a desired result. The judge's role is not to impose his
or her personal beliefs on the law. Our duty is to follow the
law as it was written by the legislature, and that is how I
perceive that I would conduct myself if I were fortunate enough
to be confirmed.
Chairman Hatch. Let me just say this. I do not want to put
you through any more because I know darn well you can answer
every question. I know that your background is extensive. I
know that you have the well-qualified rating from the American
Bar Association. I believe that this hearing has been too long
delayed, mainly as I have tried to resolve these difficulties
between the two Senators from Michigan and the Committee, and
so far have not been very successful, although I have done my
very best, and have offered a final offer.
All I can say is that I am going to support you very
strongly, and I believe everybody on this Committee ought to
support you very strongly. I do not think there is an excuse
for this to be delayed any longer. By the way, how long have
you been delayed?
Judge Neilson. I believe that I was first nominated in
November of 2000, 2001?
Chairman Hatch. 2001 you mean?
Judge Neilson. Yes.
Chairman Hatch. It has been about 3 years.
Judge Neilson. I have tried not to count the days, Mr.
Chairman. I apologize.
Chairman Hatch. That is okay, but it has been a long time.
Judge Neilson. It has.
Chairman Hatch. A lot longer than it should have been. That
does happen on this Committee from time to time, but I think in
this particular case it is not right, and we are going to have
to try and solve that. I will do my best to do that, and I have
been trying, but I just want to compliment you for being
willing to serve in this position, knowing that you would so
faithfully, that you would execute the law faithfully, that you
would be impartial, and that you would have the intelligence
and the capacity to be able to do this job well. I know well
your record, and I am going to very strongly support you.
With that, we will just let you go, and thank you and your
family, your husband in particular, for being here.
Judge Neilson. Thank you, Mr. Chairman.
Chairman Hatch. Thank you so much.
If I can have the other three please take their seats.
Please raise your right hands. Do you swear that the testimony
you are about to give will be the truth, the whole truth and
nothing but the truth, so help you God?
Judge Alvarez. I do.
Judge Starrett. I do.
Judge Finch. I do.
Chairman Hatch. Thanks so much. We are happy to have all
three of you here. You are three excellent people, three
excellent nominees. We know how important, Judge Finch, your
job is there, and you need that reappointment, and that is what
you are being honored with here today.
Judge Starrett, your reputation is a sterling reputation.
Everybody knows that and there is no excuse for holding you
back in any way.
Judge Alvarez, you have had a lot of experience. You have
tried a lot of cases. You have also been a judge, so you
understand the law and how it should be applied and so forth.
Let me just say this. Let me ask all three of you these
questions, and you can give--would any of--let us start with
you, Judge Alvarez and go across the table. Would you care to
make any statements? I forgot that you should be able to
introduce--your family has been introduced, but if you would
care to do that again, I would appreciate it, and friends.
STATEMENT OF MICAELA ALVAREZ, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF TEXAS
Judge Alvarez. Thank you, Mr. Chairman. I appreciate the
opportunity to be before this Committee. Senator Hutchison has
been gracious enough to introduce my family.
I would like to recognize my children, who because of
school commitments could not be here today. They are my son,
Javier, my two daughters, Cecilia and Victoria. I would also
like to, just for the record, mention my mother, Macaria
Alvarez, who also could not be here today.
[The biographical information of Judge Alvarez follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Hatch. Thank you, and we welcome all the rest of
your family who have all been introduced. We appreciate having
you with us and we are honored by your presence.
Judge Starrett.
STATEMENT OF KEITH STARRETT, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF MISSISSIPPI
Judge Starrett. Thank you, Senator Hatch, and thank you so
much for having this hearing today.
I would like to recognize my wife, Barbara, who is here.
Chairman Hatch. Barbara, if you would stand. Delighted to
have you here.
Judge Starrett. I also have my children who were not able
to be here today. My son Josh and his wife Melissa, my daughter
Leah Claire and her husband Grant Bennett, and my son Whit, are
not able to be here today.
I also have two special friends, Judge Joe Pigott and his
wife Lorraine are here today, if you would stand. Judge Pigott
was my predecessor in office. He served our State and district
very well as circuit judge for 17\1/2\ years before I took the
bench upon his retirement.
Chairman Hatch. We welcome both of you here. It is nice of
you to come all this way.
Judge Starrett. I would also like to point out, Senator,
that their son was approved by this Committee about 10 years
ago as U.S. Attorney for the Southern District of Mississippi.
Thank you.
[The biographical information of Judge Starrett follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Hatch. Thank you.
Judge Finch.
STATEMENT OF RAYMOND L. FINCH, NOMINEE TO BE JUDGE FOR THE
DISTRICT COURT OF THE VIRGIN ISLANDS
Judge Finch. Thank you, Senator, for the opportunity to be
here today.
I will take this opportunity to introduce my wife, Anne
Marie.
Chairman Hatch. So happy to have you with us.
Judge Finch. And my daughter, Jennifer, who is here, and a
very good friend of mine, former Senator Claude Malloy.
Chairman Hatch. We are honored to have you all here.
Judge Finch. Thank you very much.
[The biographical information of Judge Finch follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Hatch. Thank you so much.
Let me just say that I know your reputations, and I have
carefully reviewed your records. I think all three of you are
very well qualified to serve on your respective benches.
Let me just ask a few cases though as we go through this.
Let us say that you have a case where you believe one way but
the law is the other, or at least there is a strong argument
that the law is the other way. How are you going to handle
that, Judge Alvarez?
Judge Alvarez. Thank you, Mr. Chairman. I believe that as a
judge I am bound to uphold the law like any other citizen, and
my personal beliefs are not what I should base my decisions on.
My decisions would be based on the law.
Chairman Hatch. What if they are really strongly held
beliefs?
Judge Alvarez. I believe that my decisions should
nonetheless still be based on the law. As a judge my oath is to
uphold the law, not to impose my personal views.
Chairman Hatch. Judge Starrett?
Judge Starrett. I would like to agree with my colleague,
Senator, and thank you for the question. I would always follow
the law. I hope that I have tried to do that. I have tried to
do that through my career and would continue doing it.
Chairman Hatch. Judge Finch?
Judge Finch. Thank you, Senator. I have, throughout my
career, followed the law, and I will continue to do so. I think
as a trial judge that it is my primary task in decision making
simply to follow the law.
Chairman Hatch. Thank you.
Judge Starrett, you have given numerous speeches and
written at least two articles on drug courts. You have also
been instrumental in establishing GED and drug treatment
programs in the local jails, and you have spent the last six or
7 years working to establish a drug court system in
Mississippi. Would you please express to the Committee how
effective these efforts have been in combatting the drug
problems in your State?
Judge Starrett. The drug courts are--I do not want to say
in their infancy because I have had one for over 6 years, and I
would like to thank the Senate and the House for supporting
drug courts on a national level. But by the end of next year
there should be 18 active drug courts working in Mississippi.
Chairman Hatch. You were the first to start this?
Judge Starrett. Yes, sir, in Mississippi. And they are--a
law that I worked to draft, we have one of the most
progressive, if not the most progressive, drug court statute in
the Nation. We also have one of the best, if not the best,
funded drug court programs in the Nation. This has all come
about in the last 2 years in difficult budget times.
Chairman Hatch. In these respective positions that you
have, you have tremendous caseloads. How do you plan on
managing those caseloads once you get there? As I understand in
your case, Judge Starrett, this caseload will be--this is an
emergency position.
Let us start with you, Judge Alvarez. How do you plan on
handling a caseload? I understand you have a tremendous
caseload in the position that you would be assuming that you
are nominated for down in Texas.
Judge Alvarez. Thank you for expressing that concern. That
is also my understanding, that there is a very heavy caseload
in the Laredo Division. I would do what I have always done in
my life, and that is I am a very hard worker, so I would
certainly do that. I believe that the role of a judge is not
limited to 8 to 5, so I would commit myself to the time that is
required to move the docket, of course, with the assistance of
the magistrates and the other court staff.
Chairman Hatch. Thank you.
Judge Starrett?
Judge Starrett. Thank you, Senator. Having a large caseload
is not something new to me. When I took over as circuit judge
from Judge Pigott, there was the highest caseload of any judge
in the State at that time. When I take over, if I am so
fortunate as to be confirmed, the district in Hattiesburg,
where the seat will be, has the highest caseload of any U.S.
District Court. The way to work it is just to work. You do the
things that you have to do to manage the docket and to reduce
the caseload.
Chairman Hatch. Judge Finch.
Judge Finch. Senator, thank you for expressing your concern
in this area. I have, since being on the Federal bench, used
the expertise of the magistrate judges in our court to assist
in moving our cases, and that has been very effective and I
will continue to do so. In addition to that, of course, I will
continue to work as hard as I can and as hard as my health will
allow.
Chairman Hatch. Thank you so much.
One thing I like to ask, especially District Court
nominees, how important do you think temperament is? I tried
cases in the Western District of Pennsylvania before going to
Utah, and then tried cases before the fabled--well, in both
cases, the fabled Judge Wallace Gorley there in the Western
District of Pennsylvania, who was kind of a law unto himself,
but a very fine judge in many respects; and Willis Ritter, who
has a very interesting reputation in the District Court there
in Utah. How important is temperament? We will start with you,
Judge Alvarez.
Judge Alvarez. I think the temperament is very important
for any judge, especially I think a trial judge is seen by the
public as the administrator of justice, and so for that reason
a judge should always remember to treat those who come before
that judge with dignity and respect.
Chairman Hatch. Judge Starrett.
Judge Starrett. Thank you, Senator. The temperament of a
judge is crucial to the perception of the fairness by the
litigants and the attorneys. A judge should have a temperament
that is courteous and respectful, but it also should be firm.
It should be one that would run a courtroom in a way that gives
respect to litigants, jurors, attorneys and all participants.
Chairman Hatch. And gets the job done.
Judge Starrett. And gets the job done, yes, sir.
Chairman Hatch. Judge Finch.
Judge Finch. It is my opinion that temperament is of utmost
importance in conducting court proceedings. It is especially so
in situations where one has to face non-lawyer litigants, and
of course also with lawyers. Courtesy is of utmost importance,
and I have exercised courtesy and respect to all lawyers who
come into my court, and I will continue to do so.
Chairman Hatch. That is great. How are you going to treat
young lawyers who may not have the practical experience, may
not even be as well versed in the rules of evidence, may not be
able to ask the questions, you know, listen to responses from
witnesses as well as they should. Let us start with you, Judge
Finch.
Judge Finch. The short answer is great patience.
Chairman Hatch. Okay.
Judge Finch. Great patience, and of course, courtesy. I
have in some situations expressed from the bench my particular
interest in an issue, and although the young lawyer may have
completely missed the issue, having expressed my interest in
it, I have given that lawyer time to submit additional
memoranda on the subject and request a hearing if he so
desires.
Chairman Hatch. Judge Starrett.
Judge Starrett. Thank you, Senator. I have not forgotten
when I was a young lawyer and needed some help from judges, but
I would do the same thing that Judge Finch has said.
Chairman Hatch. Judge Alvarez.
Judge Alvarez. Thank you, Mr. Chairman. I believe that a
judge can offer some guidance to a young lawyer, but of course
should be careful not to become the advocate for either side,
but as my colleagues have said, I believe great patience would
be the strength that the judge could offer to the young lawyer.
Chairman Hatch. That is great. I have seen judges who try
to try the cases for lawyers or who interject their own
feelings or their own personal views all the time, and that
should not happen. But there are times when a young lawyer is
having a difficult time asking the question a way that is
unobjectionable, where a judge might say, ``You might want to
ask it this way, counselor,'' just to help them.
I have seen great judges lose their tempers because
sometimes the courtroom can be a very, very volatile place, but
for the most part you pretty well should not, and I just
believe that all three of you will make excellent judges, trial
court judges from what I know about your backgrounds.
I am very honored to have you all here today. I know that
you can answer any other question that I even could think of,
and I have a lot that I might have asked you if you were other
than the great people that you are. I am going to do my best to
get you through between now and the end of this Congress, and
hopefully will be able to do that. I would hope that in your
cases that there will not be objections by the other side, and
I am hopeful that we might be able to find some way that both
sides will quit being so ridiculous at the end of presidential
years, or at the end of any particular year, but especially
presidential years. Both sides have been wrong from time to
time, and the irritations continue to carry over, and I am
trying to bridge that if I can. As you can see, it is very
difficult, but in any event, I will do my very best to get you
through.
I want to thank each of you for being here, your family
members, your friends, and I will keep the record open for one
week till September 15th for any further questions or
statements that might be put into the record, and then we will
probably put you on the markup for next week, next week or the
week thereafter.
Thank you all. With that, we will end this hearing and
recess until further notice.
[Whereupon, at 11:24 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF CHRISTOPHER BOYKO, NOMINEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF OHIO; AND BERYL ALAINE HOWELL, NOMINEE TO BE A
MEMBER OF THE UNITED STATES SENTENCING COMMISSION
----------
WEDNESDAY, SEPTEMBER 22, 2004
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 3:45 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Mike DeWine
presiding.
Present: Senators DeWine and Leahy.
Senator DeWine. The hearing will come to order. First let
me apologize. There is a briefing going on in regard to Iraq
and I apologize for being late. That briefing started at three;
it is still going on.
We have today a Senate Judiciary Committee hearing on
judicial nominations. Christopher Boyko will be the first.
Before we start, let me call up the Honorable Steven
LaTourette, who is here, and we will hear Congressman
LaTourette's testimony. Congressman, thank you very much for
joining us.
PRESENTATION OF CHRISTOPHER BOYKO, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF OHIO, BY HON. STEVEN LATOURETTE, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Representative LaTourette. Senator DeWine and Senator
Leahy, thank you very much for letting me come over and spend a
few minutes before you inquire of my long-time friend, Judge
Boyko. And first of all, I want to indicate that, Senator
DeWine, in putting his name forward, you have made an
incredibly wise choice, and I am grateful to the President of
the United States for sending his nomination for your
consideration and hopefully consent.
I have had the pleasure of knowing Chris Boyko since 1976.
We were first year law students together at Cleveland-Marshall
College of Law, and I know Senator DeWine knows a little bit
about Cleveland-Marshall, but it is the kind of law school
where when you do not have a lot of money, you work a day job,
you go at night. It is the only way we were able to become
lawyers.
And Chris Boyko, you will find he looks today the same way
he looked in 1976. He was clean-cut, he worked hard, he was a
health nut before that was in vogue, and we did not have all
those fancy gyms you can go to. He eats well. He used to make
fun of me for eating Twinkies and drinking coke for lunch, and
you know that when you go into that first year of law school,
the professor comes back from Paper Chase, the professor always
says take a look to your left, take a look at your right, and
at the end of the semester, one out of the three of you is not
going to be here.
Well, as I said, Chris looks exactly as he does now. I had
just graduated from the University of Michigan. I had long
hair, a beard, I wore a lot of flannel, and Chris told me years
later, he was sure after looking at me he was in, and he was
going to be the one that would be around at the end, and I have
had the pleasure of being associated with him ever since.
Chris has served honorably as the elected Law Director in
the City of Parma, a large and thriving suburb of the City of
Cleveland. He then became the Parma Municipal Judge and
distinguished himself as well. He was appointed to the Common
Pleas Bench by then Governor Voinovich, now Senator Voinovich,
and he has been twice elected, and not to be partisan at all,
but Cuyahoga County, Senator DeWine knows well, I think the
Democratic registration beats the Republican registration by
four to one, and you only get elected and reelected as a
Republican jurist if you do what people want you to do, you do
it fairly, you do it honestly, you do it with integrity, and
Chris Boyko has been twice elected.
So while he may be surprised that I am a member of the
United States Congress after meeting me for the first time in
1976, I am not surprised at all that he sits before you today
with a nomination by the President of the United States to
become a judge of the Northern District of Ohio, and again I
appreciate you giving me the opportunity to say a few words
about my friend and hopefully our next Federal judge in
Cleveland.
Senator DeWine. Congressman, thank you very much, very
eloquent. We appreciate your being here very much.
Senator Leahy. We are not going to ask the Congressman
searching, tough questions about those college days?
[Laughter.]
Senator DeWine. I will leave that up to you, Senator.
Senator Leahy. I am assuming we will not on the hopes that
nobody would ever do that to us.
[Laughter.]
Senator Leahy. Thank you, Congressman.
Representative LaTourette. Thank you both.
Senator DeWine. I am going to now defer to my colleague
Senator Leahy for the introduction of Beryl Howell to be a
member of the United States Sentencing Commission.
PRESENTATION OF BERYL ALAINE HOWELL, NOMINEE TO BE A MEMBER OF
THE UNITED STATES SENTENCING COMMISSION, BY HON. PATRICK LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Leahy. Why I thank you for the courtesy, Mr.
Chairman, and I am delighted, of course, that she is here. We
have tried to make the U.S. Sentencing Commission bipartisan,
thus nonpartisan, with balanced and experienced commissioners
that stick to the merits, command the respect of both Congress
and the Judiciary. Beryl Howell is certainly in that category.
I like the fact that when she first came here that she had
been a prosecutor, in fact, a very tough Federal prosecutor.
She earned a number of commendations for her actions. She was
the Deputy Chief of the Narcotics Section, Assistant U.S.
Attorney in the Eastern District of New York, though she
consented to join the staff of the Senate Judiciary Committee
in 1993. She served with great distinction, earned the respect
of both Republicans and Democrats alike.
As my general counsel, she devoted herself to resolving
issues on the merits. Probably the biggest challenge was the
one we faced following September 11, when she led the
negotiating team with the administration. She has gone on to
become highly successful as the Managing Director and General
Counsel of the Washington, D.C. office of Stroz Friedberg, one
of the leading cybersecurity and forensic firms in the country.
She is here with her husband Michael Rosenfeld, a well-
known cinema journalist, if I can use that term. I, like you,
have had times on Air Force One. He helped produce the
definitive documentary on Air Force One. I felt like I was
right back on it in watching it. But Jared, Alina, and Calla
are all here, and Mrs. Rosenfeld is here. Other friends who
Beryl will mention when she comes up are also here, but I have
to tell you how extremely impressed I am that you are here.
Could I mention one other thing, too, Mr. Chairman? And I
am glad Beryl is here, because she knows how hard we worked on
this technological milestone for the Senate. Today the Senate
Judiciary Committee will officially begin broadcasting live on
the Senate television system with closed captioning, using
advanced technology of voice recognition software.
We have been eagerly awaiting this. We have worked for it,
planned for it for years. We have worked with the Office of the
Secretary of the Senate--Madam Secretary, I appreciate you
coming over here; you honor us all by being here--with the
Committee on Rules. We developed a pilot project that would
allow us to study the captioning of committee hearings,
offering real time captioning as a demonstration for the use of
Senators and their staff. We are very, very proud of this and
have worked very closely with Senator Hatch, and I am glad we
are able to do this.
I should also mention Clara Kircher, my Deputy Chief of
Staff, who has devoted well over a year of her own life to this
project, and she is sitting here today as well. She has truly
brought us through the peaks and valleys of the closed
captioning. We have tried different systems. Some held promise,
but not reality. This one does, and Clara, everybody, everybody
owes you thanks. I think too of Rachel Arfa who worked for this
Committee with great distinction, first as an intern, then as
the Nominations Clerk, and then went on to law school. The
amazing thing is she cannot hear, but she also worked with us
on this and encouraged me throughout the time, even times when
we tended to give up and wonder if we could possibly do it.
Because of the events following September 11, we find many,
many barriers around Washington that were not there when I was
a law student, a time when you could just walk in this building
and just about any other building easily. They show the
realities of today. But this is one way to break down barriers.
The people, whether they can hear or are hard of hearing, or
for whatever reason, can follow it, and I think, Mr. Chairman,
we open the Senate up more by doing it. I will put my full
statement in the record, but I just did want to mention that.
If I could also mention, as one who has been here for
nearly 30 years, the great public service of Sheila Joy. I will
put a full statement in here. But she is retiring from the
Department of Justice after 26 years working on nominations, 37
years in public service. She has assisted people through their
confirmation, every judicial nomination, the Ford, Carter,
Reagan, former Bush, Clinton and the current administration.
She knows everybody better than all the rest of us and we will
miss her.
It will seem strange to look down and not see her at the
back of the room. The only difference is all the rest of us
have aged and Ms. Joy has not. So thank you, Mr. Chairman. I
will put the rest in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
PRESENTATION OF CHRISTOPHER BOYKO, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF OHIO, BY HON. MIKE DEWINE, A U.S.
SENATOR FROM THE STATE OF OHIO
Senator DeWine. Before I ask our two nominees to come up,
let me just make a few introductory comments about Judge Boyko.
The judge currently serves on the Cuyahoga County Court of
Common Pleas which in Ohio is our highest trial court, where
all the major civil and crimina matters are tried. During his
time on the bench, Judge Boyko has really seen virtually every
type of case that you can imagine. He is an excellent judge and
his reputation reflects that. Consensus among lawyers in the
Cleveland area is that Judge Boyko is intelligent, fast, fair
and has a terrific temperament, so much so that lawyers really
want their cases to be assigned to Judge Boyko.
And I would say the only objection I have heard, that I
have received, at least, so far to Judge Boyko's nomination is
that the Court of Common Pleas will be losing one of its best
judges. Let me also note that the ABA has also given him a
rating of ``unanimous well qualified.''
Before serving on the Court of Common Pleas, Judge Boyko
served as a judge on the Parma Municipal Court in 1993. From
1981 until 1993, Judge Boyko was assistant prosecutor and then
prosecutor for the City of Parma, prosecuting a variety of
criminal matters for the city.
During much of that time, Judge Boyko was the Director of
Law for Parma, overseeing the civil litigation which the city
was involved, and also during that time period Judge Boyko was
engaged in private practice with his father and brother.
There are only a few attorneys in Ohio who are willing to
tackle this kind of a diverse practice engaging in private
practice, acting as a prosecutor and representing a local
Government all at the same time. I think this is a real
testament to Judge Boyko's work ethic, not to mention the vast
legal experience he gained from this type of practice early in
his career.
Let me finally just mention the broad bipartisan support
that the judge has in Ohio. I have a number of letters that we
have received from prominent people in Ohio, including a number
of prominent Democrats, which I will submit for the record
without objection.
But let me just read a couple excerpts. Jimmy Dimora, the
Chairman of the Cuyahoga County Democratic Party, has written:
``I am recommending that Judge Chris Boyko be confirmed for
appointment as Federal District Judge. He is fair and open-
minded with a commitment and dedication to the law. His high
ethical standards and judicial temperament will be useful on
the Federal bench with experience and a background to match. If
any Republican deserved Democratic support, Judge Boyko does.''
George Forbes, President of the Cleveland Chapter of the
NAACP, wrote to Senator Daschle:
``Judge Boyko has not only served with distinction on the
Court of Common Pleas, but is a parson of fairness, integrity,
keen knowledge of the law, and possesses the judicial
temperament to execute the duties of a Federal judge in a fair
and impartial manner. I can say without reservation that Judge
Boyko would make an excellent judge.''
Russell Tye, President of the Norman S. Minor Bar
Association, the largest African-American Bar Association in
the state of Ohio, has written:
``Judge Boyko has always been honest, fair and a man of
great integrity. Judge Boyko is a very learned judge who has
certainly mastered the art of always following the law and
carefully applying it with judicial discretion and fairness.''
Tony George, who describes himself as ``a Kerry delegate,
life-long Democrat, teamster member, and Ohio businessman,''
has written:
``I have known Judge Boyko for over 15 years and he has
built a reputation for integrity, fairness and professional
competence. Although he is a Republican nominee of President
Bush, he finds as much favor among Democrats as he does
Republicans. His nonpartisan approach to judging and politics
has earned him an extensive bipartisan support.''
[The prepared statement of Senator DeWine appears as a
submission for the record.]
Senator DeWine. I would ask that our two nominees come
forward and please continue to stand. Please state your name.
Judge Boyko. I, Christopher Boyko.
Senator DeWine. Do you swear that the testimony you are
about to give before the Committee will be the truth, the whole
truth and nothing but the truth, so help you God?
Judge Boyko. I do.
Ms. Howell. I do.
Senator DeWine. Please be seated. Judge Boyko, we will
start with you. If you have any opening statement, we will be
more than happy to hear it at this time.
STATEMENT OF CHRISTOPHER BOYKO, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF OHIO
Judge Boyko. Thank you, Mr. Chairman. Although I will
decline a formal opening statement, I do want to thank you,
first of all, Mr. Chairman, for having this hearing, for all
your support, the same thing with Senator Voinovich for all his
support, of course, for President Bush, for nominating me to
this coveted position.
Although my wife of 23 years, Robbie, could not be here
because of her own job obligations, I do want to acknowledge
that she is with me here in spirit, as well as my children
Philip and Ashley, our teenagers, studying hard for their
exams, I hope, to get good grades and keep my insurance rates
low for a good student discount.
Senator Leahy, good afternoon, sir. It is a pleasure to
have you here also. I do want to thank Congressman LaTourette
for those very generous and kind words that he mentioned. Steve
has been a great life-long friend and I cherish his support.
Also I do want to acknowledge a very good and dear friend of
mine that is with me here today, Tary Szmagala from Cleveland.
He has known me since I have been in diapers and knows
everything about me. He is has been a great mentor of mine and
a close personal friend.
Senator DeWine. We may call him as a witness later.
[Laughter.]
Senator Leahy. Closed session.
[Laughter.]
Judge Boyko. But I do want to acknowledge Mr. Szmagala and
thank you, Mr. Chairman, for allowing me those thanks.
[The biographical information of Judge Boyko follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator DeWine. Judge, thank you very much. Ms. Howell.
STATEMENT OF BERYL ALAINE HOWELL, NOMINEE TO BE A MEMBER OF THE
UNITED STATES SENTENCING COMMISSION
Ms. Howell. Good afternoon, Chairman DeWine and Senator
Leahy. It is a pleasure to be here, although it is a new
experience for me to be sitting on this side of the table
rather than behind you members up on the podium, and a little
bit of a frightening experience, one that is a little bit
surprising to me.
And I just want to reiterate what Judge Boyko said, which
is I am very grateful to the President for considering me and
giving me this nomination and also very grateful to Senator
Leahy, in particular, and Chairman Hatch and the other members
for their assistance and support during this process.
I really look forward to the opportunity to work with the
distinguished members of the Sentencing Commission and the
excellent staff there, with whom I had many dealings when I was
on the Judiciary Committee staff, and I know that they are just
great. And I do not have a written statement, but I will be
happy to answer any questions you may have.
[The biographical information of Ms. Howell follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator DeWine. Thank you very much. I do not want to make
you nervous, but the family is enjoying watching you on the big
screen there.
[Laughter.]
Ms. Howell. Yes, well, if I could just take a moment to
acknowledge my family who is here. My husband, Michael
Rosenfeld, and my three children who got to get out of school a
little early today, Alina, Jared and Calla, and my mother-in-
law, Judy Rosenfeld, is here. My parents unfortunately are out
of the country. And my children's babysitter, Amanda DeBock, is
here, and a good friend from my prosecutor days, Kirby Heller,
is also here.
Senator DeWine. Good. We welcome them all.
Ms. Howell. As well as all of my friends on the Committee
staff.
Senator DeWine. We welcome you back. Thank you very much.
Senator Leahy.
Senator Leahy. Thank you.
Senator DeWine. You start and I will follow you.
Senator Leahy. As I say, Ms. Howell is up for the
Sentencing Commission, the fairness and sentencing. I almost
wonder whether we should ask her children how is she at meting
out any sentences? You do not have to answer that.
[Laughter.]
Senator Leahy. Bad question. I really do not have any
questions of Ms. Howell. I know her so well. I just think how
fortunate the country would be to have her there. I have been
very pleased, and if I can only just put one bit of a
suggestion, I have been extremely pleased with the way the
Sentencing Commission has worked in the last few years. As you
look at their results of the various things, you cannot really
tell whether this was pushed by the Republican side or the
Democratic side. The fact that they have reached some
consensus, I think, has been helpful to judges. We obviously
have the recent Supreme Court case which raises whole
questions, but that is something the Congress is going to try
to work out.
In the meantime, I think the Commission must continue to
work as it has done, and I know the efforts you have made to
reach consensus, so I know that will continue. But I just, I
would only emphasize to you as I have to other members of the
Commission how important that consensus is. And I realize it is
not always possible, but to the extent that it has been, I
think it makes the life of judges much, much easier.
And Judge Boyko, as I understand, there is not a vacancy at
the moment. You have been nominated for a seat that is still
filled; is that right?
Judge Boyko. Yes, Senator, that is correct.
Senator Leahy. But if you are confirmed, you do not want
the President to immediately nominate somebody for your seat in
anticipation of your leaving?
Judge Boyko. Yes, sir.
Senator Leahy. Most of your work was in State courts. I
think you said 90 percent or so. How do you expect to get up or
what do you plan to do to get up to speed for Federal court,
keeping in mind that they have increasingly large criminal
dockets that are sometimes very complex issues, as well as, of
course, civil cases?
I do not know exactly what type of procedures they use in
Ohio, how closely they track either the Federal Criminal
Procedures or the Federal Civil Procedures, but I assume that
there are some differences. Does this concern you and what do
you plan to do about it?
Judge Boyko. Thank you for that question, Senator. We carry
a very heavy caseload in Cuyahoga County State Court, and, as
Mr. Chairman alluded to, we hear all different types of cases.
So we have to keep cases moving while giving them due
deference.
Ohio does track the Federal Rules of Civil and Criminal
Procedure. There is very little difference really between the
two. So I am used to handling a heavy caseload. I do get
complicated cases in State Court at the Common Pleas level, and
I am very familiar with the rules of evidence, and they do
track very closely between State and Federal, Senator.
Senator Leahy. I know it makes life easier in those States
where they do. I know a lot of States try to. Senator DeWine
mentioned the letters of support for you from the President of
Norman Minor Association, the NAACP's Cleveland Chapter, I went
back in the history in the City of Parma. During the 1990s, you
were their Director of Law. The NAACP filed suit against Parma
alleging discriminatory practices in the hiring practices.
They had also filed suit against three cities in Ohio. The
other two cities, and correct me if I am wrong in my facts on
this, but I understood they fairly quickly settled. Parma chose
to fight the suit for over a decade opening it to a lot of
criticism. What was your position there? Obviously, the NAACP
is supporting you now, but what was your position during this
time when Parma would not settle, the others did? Were you
urging a settlement? What did you do?
Judge Boyko. Thank you again for that question, Senator,
and it is a good one because as Director of Law, I was lawyer
for the city. I was not involved in any of the policy decisions
that the Mayor and Council made with regard to how to handle
that case. I was in a supervisory capacity. I did my best to
work with the opposition in resolving the matter, but there
were some internal disagreements on how that should be handled
from a policy level.
Again, it was my obligation to represent the city to the
best that I could, at the same time trying to push for a
resolution of that case. It was very difficult at that time.
Senator Leahy. And am I right that it took nearly ten years
to resolve?
Judge Boyko. Yes, it did, Senator. I had left and it was
still going on.
Senator Leahy. With what you know about the final
resolution, are you happy with that?
Judge Boyko. I am, Senator, because it was a consent decree
and both sides got together and finally resolved it and came to
an agreement to finally bring it to an end.
Senator Leahy. I just find it interesting. We do not have
these situations in Vermont because of our, not from any great
purity on our part, but because of racial makeup in our State,
and I know it can sometimes be difficult, but I was stuck on
the fact that it had taken longer there than the others, and I
appreciate your answer. I think it is very candid.
Judge Boyko. Thank you, Senator.
Senator Leahy. Mr. Chairman, I have no other questions. I
am sure you are going to submit Ms. Howell to withering cross-
examination.
Senator DeWine. I have about two hours' worth.
Ms. Howell. Thank you for that invitation.
Senator Leahy. Yeah, but knowing that, having seen her
cross-examining and knowing the reputation she had, the
brilliant reputation she had as a prosecutor, I think she will
be safe.
Senator DeWine. I think she can survive.
Senator Leahy. Actually, you know, you got a lot of
prosecutors here. Senator DeWine--
Senator DeWine. That is right.
Senator Leahy.--myself.
Senator DeWine. Judge.
Senator Leahy. Boyko and Ms. Howell. So old home week. But
if you do not mind, I am going on to other things. I did want
to be here, of course, for Ms. Howell and her family, who I
will freely admit so everybody knows where my prejudices are,
are close friends of my wife's and mine, and greatly admired by
us, but also I just want again to compliment everybody who
worked so hard to get the closed captioning going. If this
works here, I suspect the day will soon come where this will be
the norm in all committees.
Senator DeWine. It is a great thing to see. It is good.
Thanks, Pat. Thank you, Senator. Ms. Howell, I wonder if you
could kind of give us your just general philosophy how you will
approach this new position, a very general question, but I
think I would just kind of like to hear a little bit about how
you look at this job?
Ms. Howell. Well, I have had experience with the sentencing
guidelines since 1987 when I first became a prosecutor, and
that is when the sentencing guidelines first became effective,
and spent I think the first couple years of my life as a young
prosecutor learning how to use the guidelines and working with
the judges in the Eastern District of New York and other
practitioners there on how to effectively implement them.
And I think, through that process, I have gained an
enormous respect for the guidelines although they are not
perfect and critics, you know, have points that they can make
about them that may be accurate, but generally I think that the
guidelines have, you know, certainly reached some of the
statutory goals that Congress laid out for them, and I look
forward to working as an integral part of the Commission to
help, you know, ensure that the guidelines continue to reflect
congressional intent and the statutory goals to reduce
unwarranted sentencing disparities and promote transparency,
accountability in the sentencing process.
Senator DeWine. If you look back in the history of the
guidelines and the history of the Sentencing Commission, is
there anything that you have learned from that history that
would help guide you in the decisions in the future? We always
look back at either mistakes or successes or trends. What have
we learned, collectively about the history of the Sentencing
Commission that would help us in the future?
Ms. Howell. Well, I know that there were times when even
during my tenure on the Senate Judiciary Committee staff when
there were--it is not a full slate of Commissioners on the
Sentencing Commission--and people, I think within the Senate
and within the Congress, perhaps both houses, questioned sort
of the role of the Sentencing Commission.
I think one of the, you know, important jobs of the
Sentencing Commission I think is to also maintain good
communications with certainly members of the House and Senate
Judiciary Committees that have jurisdiction over criminal
justice issues and sentencing guidelines, in particular, to,
you know, make sure that there are open lines of communication
there, and that when the Sentencing Commission makes proposed
rule changes that the reasoning behind those proposals are, you
know, fully understood by members of Congress, and that there
can be a dialogue, and I think that one of the things that I
may be able to bring to the job is an ability to assist in that
dialogue.
Senator DeWine. What about the other side of that coin
which is the judges? There is the natural, I do not want to
overgeneralize here, but, you know, natural inclination of many
judges not to like the whole idea of the Sentencing Commission
anyway. So how do you get input from judges or do you? Is that
part of the role of the Sentencing Commission or not?
Ms. Howell. I think that the--I mean and that is one of the
things that I am going to learn, Senator. I mean I am
certainly, you know, I am much more familiar from my past
experience with the communications between the Hill and the
Sentencing Commission. I mean I do know that the Sentencing
Commission has regular meetings with the Criminal Law Committee
of the Judicial Conference, and that they have probably much
more regular, you know, contact with the judges and certainly,
you know, but I am not--I will be honest with you. I am not
fully apprised yet of all of the communications with the
judiciary.
Senator DeWine. Okay. Judge Boyko, every judge has a
different style. Describe your style for us. How do you deal
with lawyers, for example?
Judge Boyko. Mr. Chairman, I would like to think of myself
as user friendly. The cases and the clients are tough enough;
the court does not have to add to that. I want to make sure
that everybody believes that their case was fully heard before
me before they leave that courtroom and that is important
because of their clients, not just the attorneys.
The client's first question, did the judge listen to you;
did he hear our side of the argument, he or she; was he fair;
what did he think? Those are the questions that the clients ask
of the attorneys. So it is my job, my duty, to make sure that
the attorney is able to answer that question by saying yes, we
were given full and fair consideration even if he did not rule
in our favor. It is the perception of what went on that drives
me to think that way and act accordingly.
Senator DeWine. A complaint you hear sometimes from lawyers
is the judge did not allow me to try my case. How do you react
to that?
Judge Boyko. I have heard the complaint before. In my
courtroom, the lawyers are allowed to try their cases, and you
have to strike the balance and the key to that is setting
parameters before the trial starts, sitting down with counsel,
going over what you expect of them, ask their opinion on
things, how long certain phases of the trial they think will
last, and allow them to be heard during trial, because again
the only way a client can be heard, a litigant can be heard, is
through their attorney, and if you do not give the attorney the
opportunity to be heard during trial, the client is not heard
during trial.
Senator DeWine. You have been on the bench for a number of
years now. What has that experience taught you? I will not ask
you the questions of what mistakes you have made, but what have
you learned from that experience that will help you be a better
Federal judge, understanding that Common Pleas is a trial court
bench in Ohio and is frankly very similar to the Federal bench
with difference in jurisdiction obviously?
Judge Boyko. Yes. Thank you for that question, Senator, and
what I have learned is that even though we have a great amount
of cases that we have heard, and I have heard probably in the
neighborhood of 8,600 cases since I have been there eight
years, that each case is important to that person who comes in
front of you, and you cannot forget that, that it may be,
quote, ``run of the mill,'' or you have seen this type of case
a thousand times, but it is important to that person.
So I stick with that and remind myself daily that every
case is important and I should not shirk my responsibility just
because I have seen this before. I take that same attitude,
enthusiasm, energy, and hopefully we all learn from our
mistakes, and we do make them, and I think the best thing
anyone can do, including a judge, is admit that you have made a
mistake, learn from it and move on. Do not be bigger than the
job. No one is every bigger than the job.
Senator DeWine. Why do you want to be on the Federal bench?
Judge Boyko. Mr. Chairman, I love being a trial judge. I
love the dynamics of trial. I love the interaction with the
attorneys, the litigants, and I have dedicated most of my
professional life to public service. To serve on this nation's
premier trial bench would be not only the epitome of my career,
but allow me to fulfil my dream of public service for a
lifetime.
Senator DeWine. Docket management is always a challenge on
the Federal court. What have you learned in your current
position? How do you do it? How do you move cases? How are you
going to move cases expeditiously and keep things rolling, make
sure people have their day in court on time?
Judge Boyko. Thank you, Mr. Chairman. Again, as I mentioned
before, we do have a heavy caseload so I am used to moving
cases. In Cuyahoga County alone last year, we had upwards of
17,000 criminal indictments and 35,000 civil cases filed each
year. So we are used to moving a great number of cases.
You meet with the attorneys. First off you set deadlines.
You give them realistic deadlines, enough time to prepare their
cases, but with the expectation that those time frames will
only be moved if necessary, and sometimes it is. Sometimes
there are emergencies; sometimes there is illnesses, and you
have to accommodate them and be reasonable with that.
Set a trial date; stick with it. I found very helpful if
the attorneys are having discovery problems, for instance,
instead of having them paper the case to death, call me, call
my staff attorney, we will get you in, sit you down for 15
minutes, resolve it and move on. That not only saves time for
the case itself but saves the litigants extra money.
Senator DeWine. Talk to me a minute about your view of
judicial temperament. What kind of judicial temperament would
you say you have? And what is the proper judicial temperament?
Judge Boyko. Proper judicial temperament is treat everybody
the way you want to be treated. When I was practicing law, I
only asked two things of a judge: to give me a fair hearing and
treat me with respect. I have kept that in mind ever since I
have walked onto the bench, and I believe I have conducted
myself accordingly. Again, the perception of our system is
huge. You want the public to believe that the judges are fair,
open-minded, non-emotional, and that they give the attorneys
the time of the day and henceforth the litigants the time of
the day. And I would carry that temperament with me if I am
fortunate enough to be on the federal bench.
Senator DeWine. Judge, what do you think has been your most
challenging case while serving as a judge, and can you tell us
about that?
Judge Boyko. Certainly, Mr. Chairman, and thank you. My
most challenging case was probably about five or six years ago
when I had the capital murder trial of a defendant who had shot
a Cleveland police officer to death on the streets of
Cleveland.
It was a very challenging case, not because of the
complexity of the issue itself, which was the aggravated
murder, but because of the extreme emotionalism and heavy media
coverage of that trial. Had officer after officer come in and
break down on the stand. The jury would break down in tears
listening to the testimony. I had the jurors after the case
crying when the verdict was being read. Some of them had to
actually seek psychological counseling as a result of this
case. There was turmoil within the jury deliberations
themselves such that it was an 11 to one decision that was
turned around by that one person, and many of the jurors could
not forgive themselves for that. That was the most challenging
case I have ever had.
Senator DeWine. And how did you deal with that then?
Judge Boyko. You have to be the eye of the storm in the
sense that when everybody else is breaking down or things are
running amok, you have got to be stable, pull everybody
together. If breaks are necessary, give them breaks. Take time
so that everybody can collect themselves. Remind them that we
are here in trial, but you have got to be compassionate when
you do that because this is a very tumultuous experience for
everybody that was involved including myself. I will never
forget the case.
But you have got to be stable enough. Remember it is your
courtroom, you are in control, but give the people time to
collect themselves and move on.
Senator DeWine. Judge, you serve on a trial court bench
that at least by Ohio standards is a big bench. How many
judges, Common Pleas judges, are there in Cuyahoga County?
Judge Boyko. We have in the General Trial Division 34 that
sit in my division. Of course, there are other divisions. There
is a Probate, Juvenile and Domestic, and so there are many
other Common Pleas judges, but in the General Trial Division,
we have 34 judges.
Senator DeWine. And how do you all interact? You all have,
obviously, your own docket, but--
Judge Boyko. We have regular judges' meetings. We also have
committee meetings. I sit on the Criminal Rules Committee, the
Jury Committee. I head the Veterans Service Committee. So we
are constantly meeting on different issues, and I think that it
is important to have collegiality. It is important for judges
to talk to find out what the issues are in their own
courtrooms, how attorneys are acting, how the cases are being
tried.
We help one another with suggestions after going through
different experiences so that, again, the collegiality is
extremely important when you sit on a bench as large as the one
I serve on.
Senator DeWine. Judge, under what circumstances do you
believe it appropriate for a Federal court to declare a statute
enacted by Congress unconstitutional?
Judge Boyko. Well, Mr. Chairman, thank you for that
difficult question, and it is a difficult one, because I think,
first of all, probably it would be a rare circumstance if that
happened, but you have to do a step-by-step analysis. There is
a strong presumption of constitutionality for any legislative
act. And you have to look at every facet.
When I say that, you have to start from beginning, get the
facts, get all the facts that you possibly can, distill the
operative facts from what you have, then start looking above,
above at Supreme Court decisions, the Sixth Circuit Court of
Appeals. Let us see what they have done, what their decisions
have been in that issue, on that issue and area of law.
It is not for me to impose my will on a case. It is for me
to look at Supreme Court decisions, Sixth Circuit decisions,
and impose what I believe their will is, and if I am convinced,
if I am convinced after giving all due deference, because I am
a strong believer in the separation of powers, that it is right
to rule it unconstitutional, I would do that. But again, it
would only be in very rare circumstance, Mr. Chairman.
Senator DeWine. Well, let me follow up with that, and I
think you have certainly, at least partially if not completely,
already answered this, but in general Supreme Court precedents
are, of course, binding on all lower courts and the circuit
court precedents are binding on the district courts within that
particular circuit.
I have to ask you as we all ask all nominees whether you
are committed to following the precedents of higher courts
faithfully and giving them full force and effect even if you
personally disagree with such precedents?
Judge Boyko. Unequivocally, yes, Senator. There is no
question that is my duty under oath to follow those decisions
and to inject my personal views or opinions would be highly
improper.
Senator DeWine. You stated--I appreciate your answer--there
may be times, however, when you will be faced with cases of
first impression. If there were no controlling precedent
concluding an issue with which you were presented in your
circuit, to what sources would you turn for persuasive
authority? What principles will guide you or what method will
you employ in deciding cases on first impression?
Judge Boyko. Thank you for that question, Mr. Chairman,
because I had to face it actually in State court. So we have to
start with again gathering the facts, looking at Supreme Court
cases. If there are none there, moving on to the Court of
Appeals level. If there are none there, look at the trial
level, but you have to start from the beginning. Statutory
construction means you look at the plain language.
Then you look at the statutory and case law that surrounds
that. I had an issue of attorney-client privilege surviving a
death that I had to address in Ohio for the first time, and
there were no cases on all fours that I could point to to guide
my decision. So I had to carefully analyze what was available
in other districts, other counties in Ohio, and there were
none.
So I literally had to go out of State to find persuasive
authority to render my decision. So it is a painstaking step-
by-step logical analysis using statutory rules of construction
that you employ to reach that decision.
I would do the same on the Federal bench. You have to again
give all due deference to whatever persuasive authority is out
there, but it just be logical, cogent, and reasonable.
Senator DeWine. Well, I want to thank both of you very much
for your testimony here today. As Ms. Howell knows, the record
will remain open, and members of the Committee may be
submitting written questions. We would encourage both of you,
of course, to respond to those questions if you receive them as
soon as possible. The record will remain open. We appreciate
your testimony.
Before we conclude the hearing today, though, I want to
take a minute to recognize someone who is here in the audience
as she has been here for literally hundreds of Senate Judiciary
Committee nominations hearings over the years. Sheila Joy is
retiring from the Department of Justice on October 1. This is
her last, we believe at least, her last Judiciary Committee
hearing. Sheila, will you stand up, please, so we can recognize
you, please?
[Applause.]
Senator DeWine. Sheila has been with the department since
1968, has served under 14 attorney generals. She has been
facilitating judicial nominations for 26 years in both
Democratic and Republican administrations. She has played a
role in confirming over 1,400 judges to our Federal court
including eight of the nine current Supreme Court justices.
She has patiently worked with all the nomination staff on
this Committee and the entire Senate including the various
members of my Judiciary Committee staff, and let me just say
that she will certainly be missed.
Sheila, on behalf of Chairman Hatch, Senator Leahy, and all
the current and certainly former members of the Senate
Judiciary Committee, I would like to thank you for your hard
work and your dedication and your service and for contributing
to one of the most important roles that this Committee plays or
that this Senate plays, and we just thank you very much for
your great work. And we certainly wish you the best in your
retirement. Thank you very much.
Ms. Joy. Thank you for your very kind words.
Senator DeWine. Thank you very much. The hearing will be
adjourned.
[Whereupon, at 4:30 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF THOMAS B. GRIFFITH, OF UTAH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA; PAUL A. CROTTY, OF NEW YORK, NOMINEE TO
BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; AND J. MICHAEL
SEABRIGHT, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF HAWAII
----------
TUESDAY, NOVEMBER 16, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Specter, Chambliss, Feingold and
Schumer.
Chairman Hatch. We are ready to begin. We are anxious to
proceed on these three nominees here this morning. It is late
in the session, and so we are trying to do the best we can.
We are particularly honored to have two of our great
Senators here this morning--Senator Inouye, who has been here
almost from the beginning of this institution. He has been here
so long, but we all respect Senator Inouye and know what a
great man he is.
We congratulate you on this last year.
We also have my dear colleague, Senator Bennett, who has
more than distinguished himself here in the United States
Senate. We are grateful to have both of you here.
We have Senator Schumer, who is here as well to testify for
his nominee as well.
Senator Inouye, we will begin with you, and then I am going
to turn, with your permission, Bob, to Senator Schumer, and
then I will--
Senator Schumer. That is all right. Bob can go.
Chairman Hatch. I want you to be able to get your remarks
over with.
Senator Inouye, we will take you first.
PRESENTATION OF J. MICHAEL SEABRIGHT, OF HAWAII, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF HAWAII, BY HON. DANIEL
INOUYE, A U.S. SENATOR FROM THE STATE OF HAWAII
Senator Inouye. Mr. Chairman, I thank you very much, and I
believe I speak for all when I say thank you for accommodating
us. We realize that these are the last days of the session.
This morning, I have the great honor of presenting to the
Committee Mr. J. Michael Seabright, of Honolulu, Hawaii, who
was recently nominated by the President of the United States to
serve as Federal district judge for the District of Hawaii.
Before proceeding, Mr. Chairman, I would like to present
his First Lady, Margaret, and his children, Kate and Nick, and
his mother, his sister and brother-in-law. They are all sitting
in the back.
Chairman Hatch. If you would all stand, we surely welcome
all of you here this morning. We are grateful to have you here
and you must be very proud.
Senator Inouye. Mr. Seabright is a graduate of Tulane
University, where he received his degree magna cum laude.
before going on to attend the National Law Center at G.W.
University, where he received his juris doctor, graduated with
high honors, and was a member of the Order of the Coif. At
G.W., he further distinguished himself by serving as the Editor
of the George Washington Journal of International Law and
Economics.
Mr. Chairman, I have had the pleasure of knowing Mr.
Seabright since he arrived in Hawaii 20 years ago, having
watched him as he successfully became a member of the Hawaii
State Bar and became involved in our community. Now, Mr.
Seabright stands out as a leader in the legal side of law
enforcement, where he developed the District of Hawaii plan for
implementing Operation Triggerlock-Hawaii, a Federal-local
effort aimed at the prosecution of violent, armed career
criminals in the Federal courts.
His broad experience in prosecution, from violent crimes to
government corruption, have provided him a balanced perspective
of the criminal justice system that will continue to serve him
well as he prepares for this most recent development in his
career of public service.
Mr. Seabright's work for Hawaii goes beyond his
professional commitments as an Assistant U.S. Attorney. He has
served on the Hawaii Supreme Court's disciplinary board since
1995 and holds the chairmanship of its rules committee, which
is charged with the drafting of proposed rules for the Hawaii
Rules of Professional Conduct. He was also a member of the
Hawaii State Bar Examiners and has been an adjunct professor at
the University of Hawaii William Richardson School of Law.
Mr. Chairman, this extraordinary record of achievement has
now culminated with his nomination to the Federal bench and
amply supports the favorable reports he received from the
Hawaii State Bar, the American Bar Association and the Federal
Bureau of Investigation.
Mr. Chairman, I am confident that his record will prove
equally impressive to this Committee. Naturally, I hope for a
successful hearing this morning and I hope it will be
expeditiously taken up and passed by the full Senate during
these waning days of this Congress.
Thank you very much, Mr. Chairman.
Chairman Hatch. Thank you, Senator Inouye. That means a lot
to us and it is certainly high praise for Mr. Seabright.
We think you are very fortunate to have the Senator from
Hawaii come here and speak for you. We have heard about you and
we have every reason to want to support you.
Senator Inouye. Mr. Chairman, may I be excused now?
Chairman Hatch. Without question.
Senator Inouye. Thank you.
Chairman Hatch. We know our place here. We are happy to
have you here, Senator Inouye.
The Democrats do have a caucus at 9:30, so that is why the
convoluted approach here this morning. We are going to go until
about 9:25 and then we will recess until eleven or shortly
thereafter to allow our colleagues to come to finish the
hearing.
We are trying to be very accommodating here. So that is one
reason why I am going to Senator Schumer at this point so that
he can certainly make that caucus meeting.
PRESENTATION OF PAUL A. CROTTY, OF NEW YORK, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK, BY HON.
CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. I want to thank you, Mr. Chairman, and
thank you for holding this hearing and bringing these nominees
to the fore.
Chairman Hatch. Senator, let me just say congratulations on
your close encounter up there in New York.
Senator Schumer. Thank you. It was a nail-biter, Mr.
Chairman.
[Laughter.]
Chairman Hatch. Well, frankly, we knew you were going to
win and we are very proud of you for doing so.
Senator Schumer. Thank you very much.
I am so proud to nominate Paul Crotty to join the Southern
District as a judge. I get to know, as we all do, people who
are nominated. With Paul, it is one of those rare instances
where I knew him long before he was nominated, and he is just
an outstanding person.
Before I talk a little about Paul, I would just once again
like to say that we have done a very good job filling New
York's Federal bench. We have worked closely with the White
House and Judge Gonzales and Governor Pataki. It is an example,
when we all come together, that we can make this work
judiciarily, if you will.
I have always had three criteria for nominating judges--
excellence. It is a very important job. People should be
legally excellent, not someone's brother-in-law or some
political hack.
Moderation. I don't like judges too far right; I also don't
like judges too far left. Judges at the extremes tend to make
law. They feel so passionately that they feel they know better
than the long-established traditions of the law. They don't
make good judges. They might make good other things.
And, finally, diversity. I try, at least in New York, to
fill the bench with more women and people of color. We have
done a very good job in New York, and I would just wish and
hope and pray that in the upcoming session we can have the same
kind of comity nationally that we have had with New York.
And I have to say, Mr. Chairman, without your help, we
wouldn't have been as successful in New York, and your guiding
hand, as well, for that. I also want to thank, as I mentioned,
Governor Pataki, my colleague, Senator Clinton, and the White
House for that.
As for our nominee, Paul Crotty, Mr. Chairman, is as good a
nominee as this Committee ever sees, whether he is from New
York or anywhere else. His legal credentials are outstanding.
He has had a long and distinguished career in both the public
and private sectors.
I like to nominate judges with practical experience because
one of the things that bothers me is when judges are just
legally-oriented, they sort of from on high impose all kinds of
rules that just don't work. Paul has had a wealth of public
experience, but he has been a great lawyer as well.
He graduated from Cornell Law School in 1967. He clerked
for 2 years for Judge MacMahon, of the Southern District, the
court to which he is now nominated. He served two of our mayors
very, very well--Mayor Koch, where he was Commissioner of
Finance, and Commissioner of Housing and Preservation. He then
went to the private sector, where he was a partner in one of
the most prestigious firms not only in New York, but in
America--Donovan, Leisure, Newton and Irvine--and then served
Mayor Giuliani as his Corporate Counsel, head of the city's Law
Department. And that could be, Mr. Chairman, the most difficult
legal job in municipal government anywhere in America.
He is now Group Vice President for New York and Connecticut
for Verizon, and maybe I will ask him to make sure Verizon
keeps its headquarters in New York before finally letting go of
this nomination. In any case, he has done a great job there as
well.
He is also very civic-minded. While he was at Verizon, he
donated his time to the Lower Manhattan Development
Corporation. That was the group, after 9/11, in charge of
revitalizing lower Manhattan.
Let me just submit for the record letters sent by both
Mayor Koch and Mayor Giuliani--both are friends of mine whom I
work closely with, one a Democrat, one a Republican--showing
the bipartisan support that Paul has.
Chairman Hatch. Without objection.
Senator Schumer. Mayor Giuliani said--I am just going to
read an excerpt--``Paul Crotty is one of the finest men I know.
He possesses all the qualities of an excellent judge--wisdom,
compassion, toughness, curiosity, common sense, unwavering
integrity and an abiding love of the law. Many possess
knowledge of the law and knowledge of government. Paul Crotty
is the rare individual who possesses mastery of both. He has
set and achieved the highest standard at every stage of his
career. Our Nation will be fortunate to have him join the
Federal bench.''
And from Mayor Koch's letter: ``Paul is a man of high
intelligence, total integrity and great courage. He has a
delightful sense of humor and is a husband and father to a
marvelous family.'' Since he wrote this letter to me, he says,
``You know Paul so well, what I am stating is not unknown to
you.'' We can leave that out.
Mayor Koch says, ``I believe he would be a superb
appointment.'' Well, I couldn't agree more. I was proud to
recommend him to the President. I am proud the President agreed
that Paul is a great choice for the bench. He will introduce
his large family. The Crotty family is a legendary family in
New York from one end of the State to the other, from Buffalo
to New York.
He is a great choice and I hope the Senate moves
expeditiously to confirm him because he will make a great
judge.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator. I appreciate that.
Let me just note for the record that Senator Clinton has
notified me that she wants to be here, but might not be able to
be here until eleven. But either way, she is going to have a
very good statement put in the record. So we will keep the
record open for her statement, whichever way it may delivered.
Senator Bennett, if I could turn to Senator Feingold, also,
because they need to leave. I am taking liberties with my dear
colleague, but he understands. Then we will go to Senator
Akaka, and then you will wrap up.
Senator Feingold, we also congratulate you.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Hatch. It was a big win up there.
Senator Feingold. It is good to be back.
Chairman Hatch. I personally expected you to win and I am
proud to have you back on the Committee.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. It is good to be back on the Committee,
Mr. Chairman. I just want to make a brief statement.
I would like to welcome the nominees and their families and
those who are here to introduce them. Mr. Chairman, I know that
the nomination of Mr. Griffith means a lot to you personally,
and that is why you have scheduled this hearing during this
lame duck session.
But I am a little concerned about the time chosen and
allotted for this hearing. It has the potential of leaving
members without a meaningful opportunity to question the
nominee, given the day and the various scheduling conflicts
today. I, like others on the Democratic side, will have to
leave shortly, and I know you are sensitive to that.
Chairman Hatch. Well, we will back at eleven.
Senator Feingold. I understand that you have announced this
at this point. We, of course, didn't know that when we were
making our plans for the day, so it is not clear that some of
us could get back to continue. But I recognize that
accommodation.
On its face, this is a controversial nomination. Since Mr.
Griffith's nomination in May, there has been significant public
discussion of the nominee's failures to follow the rules of two
different bars. The ABA took an unusually long time to examine
the nominee's record, and finally in October gave him its
lowest possible ``qualified'' rating. An examination of the
Utah Bar documents on which he waived confidentiality pose a
real question about whether he was engaged in the unauthorized
practice of law.
Other than the Supreme Court, the D.C. Circuit is
considered the most important court in this country. Senators
need to be able to fully examine Mr. Griffith before being
asked to vote on his nomination. Because the brief window of
time that will be left this morning after the introductions is
not a substitute for a meaningful chance to question the
nominee about his communications with the Utah Bar, Mr.
Chairman, I would like to ask that all the material sent to the
Committee by the Utah Bar that has to do with Mr. Griffith's
application and admission to the Utah Bar be admitted into the
record.
Chairman Hatch. Part of that is confidential, but we will
admit whatever we can.
Senator Feingold. Well, Mr. Chairman, let me say that I
understand--
Chairman Hatch. It can be admitted into the record. It is
just that some of it is confidential.
Senator Feingold. I understand you are probably referring
to his bar application. At least with regard to that document,
let me say that we do have an interest particularly in
questions 46 and 52. So I would ask simply that those pages of
the application be admitted, along with a cover page and his
signature.
Chairman Hatch. Without objection.
Senator Feingold. Thank you, Mr. Chairman. I appreciate it.
Chairman Hatch. Well, I appreciate that, and I hope the
Senator will accommodate me on this one because of a wide
variety of reasons and I think high qualifications.
Senator Akaka, we will turn to you.
PRESENTATION OF J. MICHAEL SEABRIGHT, OF HAWAII, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF HAWAII, BY HON. DANIEL
AKAKA, A U.S. SENATOR FROM THE STATE OF HAWAII
Senator Akaka. Thank you, Mr. Chairman. I thank you for
moving this hearing so expeditiously. I also want to add my
welcome to Mr. Seabright and his lovely family, to Margaret and
Kate and Nick. It is so good to see you here in Washington,
D.C.
Mr. Chairman, it is with great pleasure that I join Senator
Inouye Mr. Michael Seabright for this morning's hearing. The
Hawaii State Bar Association has found Mr. Seabright to be
highly, highly qualified for the position of U.S. District
Court Judge in Hawaii. This is of significant importance to me,
as I value the opinion of Hawaii's legal community in
evaluating those nominated to serve as judges.
Mr. Seabright has practiced law in the State of Hawaii for
the past 20 years in a number of capacities, including both
private practice and public service. Mr. Seabright has been
employed by the U.S. Attorney's Office for the District of
Hawaii for the past 15 years, and he has headed the White-
Collar and Organized Crime Section since 2002.
I am very pleased that this position, after being vacant
for so many years, will now be filled with an individual as
qualified as Mr. Michael Seabright. For the past few years, I
have heard from jurists and a number of attorneys in Hawaii
about the need to fill this judicial vacancy. Together with
Senator Inouye, I have tried to address the strains on the
court's current judges as they work to manage an increasingly
overcrowded docket.
In fact, Mr. Chairman, White House Counsel Alberto
Gonzales, in a letter dated July 21, 2004, recognized the
judicial emergency in Hawaii. It is our hope that the Senate
will once and for all address this situation by enacting
legislation to make Hawaii's fourth judgeship permanent during
this session. I look forward to that, Mr. Chairman. I thank my
colleagues for their favorable consideration of Mr. Seabright
and look forward to expedited action on his nomination.
Thank you so much, Mr. Chairman.
Chairman Hatch. Thank you, Senator Akaka. That is a good
statement and we appreciate your taking time to come and
support Mr. Seabright for this position. We appreciate it and
we are glad we are able to accommodate you here today. Thank
you so much. It is high praise for this great nominee and we
will do our best to get him through between now and the end of
this session of Congress.
I will, of course, reserve my remarks until after my dear
colleague and friend, Senator Bennett, makes his. All of these
gentlemen are so busy. Then I will make my remarks and then we
will go from there.
Senator Bennett.
PRESENTATION OF THOMAS B. GRIFFITH, OF UTAH, NOMINEE TO BE
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. ROBERT
BENNETT, A U.S. SENATOR FROM THE STATE OF UTAH
Senator Bennett. Thank you very much, Mr. Chairman, for the
opportunity of--
Chairman Hatch. Senator Akaka, we will excuse you. We know
you have a caucus meeting and we understand.
Senator Bennett.--for the opportunity of talking about Tom
Griffith. As I listened to my colleagues go through he
appropriate list of accomplishments of the other nominees, I
have decided not to do that with respect to Tom Griffith, for
the simple reason that the Committee already has all of the
information about his performance educationally, his practice
of law, his experience in the standard resume fashion. Rather
than repeat that which is already in the record, I would like
to talk about Tom Griffith, the individual, and what I think he
brings to this particular assignment.
First, let me introduce to the Committee the people he has
with him from his family. He is accompanied, of course, by his
wife and her father, and by his two daughters and their
husbands.
Maybe you would like to greet them and have them perhaps
stand.
Chairman Hatch. We are so happy to have all of you here.
Thanks for coming and we appreciate you supporting Tom
Griffith.
Senator Bennett. Now, Mr. Chairman, Tom Griffith really
needs no introduction to the Senate because he served as Legal
Counsel to the Senate in what is perhaps the Senate's most
difficult experience, at least the most difficult experience in
the time that I have been here. Tom Griffith was Counsel to the
Senate when we went through the historic impeachment experience
of holding an impeachment trial on President Clinton--only the
second time in our Republic's history where the Senate has had
this kind of challenge. I was involved in that, as were members
of this Committee.
The primary burden of dealing with that challenge fell upon
the two leaders, Senator Lott as the Majority Leader and
Senator Daschle as the Minority Leader. I watched with interest
and then admiration as Tom Griffith negotiated through that
particular mine field, giving very sound, calm, carefully
researched and reasoned advice to both sides. He was not a
partisan counsel. From my observation, Senator Daschle was as
reliant upon Tom Griffith's legal expertise as was Senator
Lott.
If I can take us back to the memory of that experience,
virtually everyone around us in Washington predicted a melt-
down. The comment was made that this case was toxic. It had
soiled the presidency, it had soiled the House of
Representatives, and it was going to soil the United States
Senate.
After it was over, the two leaders embraced in the well of
the Senate. I can't remember which one it was that began it,
but one said to the other, ``we did it,'' and the other
responded, ``yes, we did.'' And the Senate came out of that
experience with its reputation enhanced rather than soiled, and
to no small degree that fact that we had that result is due to
Tom Griffith.
There are very few nominees for the Federal bench who have
had the experience of going through that kind of fire, who have
had their judicial temperament tested in that kind of an
atmosphere. Tom Griffith therefore comes before this Committee
unique in terms of his experience with the Committee and with
the Senate as a whole, and indeed in the national spotlight.
I would urge every member of the Committee, regardless of
party, as they sift through the various controversial
statements that have been made, in my view improperly, about
Tom Griffith, to set those aside and think back over their
personal experience with him in that time of great challenge
and great trial in the Senate's history. I am sure if they do,
the members of the Committee will recognize that the President
has nominated an extraordinary man with an extraordinary
background to this very important position. Upon reflecting on
those personal qualities that he has, the members of the
Committee will endorse and support him for this assignment.
I am happy to have had the opportunity and the honor of
introducing him and his family to the Committee here this
morning.
Chairman Hatch. Well, thank you, Senator Bennett. Those
remarks are very, very well received by me, as you know, and I
think should be received well by everybody. So thank you for
being here and we appreciate your strong support of Mr.
Griffith.
Perhaps I can make my remarks at this point and then I will
turn to Senator Specter, if he has any he would care to make.
PRESENTATION OF THOMAS B. GRIFFITH, OF UTAH, NOMINEE TO BE
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. ORRIN G.
HATCH, A U.S. SENATOR FROM THE STATE OF UTAH
Chairman Hatch. I am pleased to introduce and welcome to
the Committee a member of the Senate family, Thomas B.
Griffith. Many of us know Tom from his distinguished service,
as Senator Bennett has said, as Senate Legal Counsel. That is
no small position. It is one of the most important legal
positions in the country.
As the chief legal officer of the Senate, Tom represented
the Senate, its committees, members, officers and employees in
litigation relating to their constitutional powers and
privileges. He advised committees about their investigatory
powers and procedures, represented the institutional interests
of the Senate in the impeachment trial of President Clinton, in
the Line Item Veto Act litigation, and in numerous Committee
investigations, and handled them all with aplomb, decency,
fairness, balance and integrity. My friends on the other side
have acknowledged that.
Despite the difficult and often divisive issues that Tom
encountered in his role as Senate Legal Counsel, he
consistently exercised sound judgment, objectivity and
fairness--qualities that all of us up here know are essential
for any Federal judge. Tom's possession of these qualities
earned him the respect and admiration of members on both sides
of the aisle. Along these lines, I would like to take a couple
of moments to share just a few excerpts from the many letters
we received in support of his nomination.
Richard Wiley, of the firm Wiley, Rein and Fielding, one of
the great firms in this town, and former law partner of Tom
Griffith's, wrote that, quote, ``Tom is an outstanding lawyer
with keen judgment, congenial temperament and impeccable
personal integrity,'' unquote.
Seth Waxman, former Solicitor General of the United States,
a leading Democrat in this town and one of the attorneys I most
respect in this town, said, quote, ``I have known Tom since he
was Senate Legal Counsel and I was Solicitor General, and I
have the highest regard for his integrity. For my own part, I
would stake most everything on his word alone. Litigants would
be in good hands with a person of Tom Griffith's character as
their judge,'' unquote.
Glen Ivey, former counsel to Senate Democratic Leader Tom
Daschle, wrote to this Committee stating, quote, ``I believe
Mr. Griffith is an exceptional nominee and would make an
excellent judge. Although Mr. Griffith and I have different
part affiliations and do not agree on all political matters, I
learned during the Senate's Whitewater and campaign finance
reform investigations that Mr. Griffith took seriously his oath
of office. Even when we were handling sensitive and
politically-charged issues, he acted in a non-partisan and
objective manner. I believe Mr. Griffith has the intellect and
the temperament to make an outstanding jurist,'' unquote.
Fred Fielding was White House Counsel for President Reagan.
Fred helped found the reputable firm Wiley, Rein and Fielding.
Mr. Fielding has described Tom as, quote, ``a very special
individual and a man possessed of the highest integrity. He is
a fine professional who demands of himself the very best of his
intellect and energies,'' unquote.
According to David Kendall, one of the leading attorneys in
the country, certainly in this area, personal counsel to
President and Senator Clinton, quote, ``For years, Tom has been
a leader in the bar and has shown dedication to its principles.
The Federal bench needs judges like Tom, an excellent lawyer
who is supported across the political spectrum. We support Tom
and believe he has the intellect and judgment to be an
excellent judge,'' unquote.
Harvard Law Professor William Stuntz has known Tom for over
20 years. He wrote, quote, ``Few people I know deserve to be
called wise; very few deserve to be called both wise and good.
Tom is a wise and good man. I believe he will be one of the
Nation's finest judges,'' unquote.
Tom's nomination is also wholeheartedly supported by a man
who is uniquely qualified to say who would be a good fit for
the U.S. Court of Appeals for the D.C. Circuit. Abner Mikva,
former White House Counsel for President Clinton and a former
judge of that very court, wrote, quote, ``I have known Tom
Griffith in the public sector and in the private sector, and I
have never heard a whisper against his integrity or
responsibility,'' unquote.
Finally, there are so many others I could read, but let me
just say Senator Dodd, of Connecticut, our esteemed colleague,
noted that ``Tom handled his difficult responsibilities as
Senate Legal Counsel with great confidence and
skill...impressing all who knew him with his knowledge of the
law and never succumbing to the temptation to bend the law to
partisan ends,'' unquote.
Now, I could go on and on reading the comments received by
the Judiciary Committee in praise of Tom Griffith. In all my
years in the Senate, and they now comprise 28 years, I have
rarely seen such a broad outpouring of support for a nominee
from so many distinguished individuals on both sides of the
aisle.
Tom has been a dedicated public servant and has
demonstrated the sound judgment and temperament necessary to be
an outstanding Federal circuit court of appeals judge. It is no
wonder that the President chose to nominate Tom Griffith for
the D.C. Circuit Court of Appeals.
Prior to coming to work for the Senate, Tom also earned an
impressive record of achievement. He distinguished himself
academically, graduating summa cum laude from Brigham Young
University and valedictorian of his college. Tom earned his law
degree from the University of Virginia, a great law school,
where he was a member of the law review.
He also has extensive experience in the private sector,
working at the North Carolina law firm of Robinson, Bradshaw
and Hinson, and subsequently as a partner in the litigation and
government affairs practice areas in the Washington firm of
Wiley, Rein and Fielding.
Tom has also given back to the community throughout his
legal career. While in private practice, he undertook the
significant pro bono representation of a death row inmate,
which led to the commutation of the inmate's sentence by the
Governor of Virginia. He has also frequently volunteered his
time to pro bono and public service groups.
Today, Tom serves as Assistant to the President and General
Counsel of the largest private university in America, his alma
mater, and mine, Brigham Young University. I understand that
some have raised questions about whether he was required to
take the Utah bar exam to serve in his current position as BYU
General Counsel. This criticism can be put to rest by a letter
I received from five former Utah Bar presidents.
They stated that, quote, ``a general counsel working in the
State of Utah need not be a member of the Utah Bar provided
that when giving legal advice to his or her employer that he or
she does so in conjunction with an associated attorney who is
an active member of the Utah Bar and that said general counsel
makes no Utah court appearances and signs no Utah pleadings,
motions or briefs,'' unquote. In addition, the ABA has
thoroughly examined Mr. Griffith's record and made the
determination that he is qualified to serve on this bench.
A prominent Salt Lake City attorney, James Jardine, has
described what Mr. Griffith would bring to the court, quote,
``He is a skilled, thoughtful, experienced lawyer...He is
extraordinarily thoughtful. His intelligence is tempered by his
judgment. He engenders trust and confidence among colleagues.
His integrity, balance and patience are genuine virtues. He
will in every way enhance the court,'' unquote. Mr. Jardine
concluded, quote, ``I think in a time of divisiveness, his
appointment can be a point of agreement,'' unquote. Mr. Jardine
served in the Justice Department under then-Attorney General
Griffin Bell.
I could not agree than with Jim Jardine. This important
court needs this good man to serve, and I hope that the Senate
will treat a member of the Senate family with all due respect
and move quickly to confirm the President's nominee, Tom
Griffith, to this long vacant seat.
I personally know Tom. He is a personal friend. I watched
him when he served in the Senate. I saw a man of inestimable
abilities who did the job here and did it fairly, and I know my
colleagues on the other side know that. So I don't think you
could get a person for this particular position.
We will chat more about Tom later, but let me talk about
Paul Crotty. He is our distinguished district nominee for the
Southern District of New York. He has impeccable credentials
which include an LL.B. from Cornell Law School with the highest
honors and a 2-year clerkship with Hon. Lloyd MacMahon in the
Southern District of New York.
He has practiced law with the renowned firm of Donovan,
Leisure, Newton and Irvine, in which he became a partner--a
great law firm. He has had an illustrious career in the public
sector, as well, serving as New York City Commissioner of
various offices in two mayoral administrations. He is currently
the Group President for New York and Connecticut of Verizon
Communications.
We welcome you this morning.
John Seabright is our nominee for the District of Hawaii. A
distinguished graduate of George Washington University Law
School, Mr. Seabright has had an equally distinguished legal
career and brings 20 years of experience to the Federal bench.
After a short tenure in private practice, he entered the
public sector first as an Assistant U.S. Attorney for the
District of Columbia, then as an Assistant U.S. Attorney for
Hawaii. Since 2001, he has served as the Supervisory Assistant
U.S. Attorney in Hawaii. So the Committee welcomes him this
morning.
We are grateful to have both of you here as district court
nominees, and, Mr. Griffith, you as a circuit court of appeals
nominee. We welcome your families and your friends, as well. We
are grateful to have all of them here. You have all had
tremendous testimony by various Senators from your respective
States and we are very happy to have you all here.
With that, I will turn to our distinguished friend, Senator
Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you very much, Mr. Chairman,
and I commend you for scheduling a hearing on judges on the one
day which we are back in session. No sooner are we here than we
have a judicial hearing.
I join my colleagues in welcoming the distinguished
nominees who are before us today. Mr. Griffith comes highly
recommended by his two home State Senators, who know him very
well, and backed up by a very impressive record on the Virginia
Law Review, a mark of distinction, summa cum laude at Brigham
Young University, valedictorian in the College of Humanities--
that is first in his class--and has been noted with some
specificity, served as counsel for the very complex hearings on
the impeachment proceeding.
Mr. Crotty comes well recommended, a special call by former
Senator Alfonse D'Amato, no longer in the Senate, but still
heard with some gusto and emphasis in these chambers. J.
Michael Seabright was recommended by Senator Inouye, which
carries enormous weight with this Committee and in the Senate.
So I am pleased to see these distinguished nominees here,
Mr. Chairman, and look forward to participating in the
confirmation process.
Chairman Hatch. Thank you so much, Senator.
What we are going to do now is recess until about five
after eleven and allow our colleagues time to come back. In
fact, we will recess until eleven. I can start my questions at
eleven. Maybe we will delay it just a little bit, but I hope
all of the three judgeship nominees will be here promptly at
eleven.
We apologize for this intervening time, but we want to
accommodate our colleagues on the other side. These caucus
meetings are very important at this time and it is the only way
I know that we can conclude this matter. So we will do our
very, very best to conclude this after we begin again at
eleven. So I would appreciate it if all of you would come back
at that time.
With that, we will recess until 11:00 a.m.
[The Committee stood in recess from 9:39 a.m. to 11:20
a.m.]
Chairman Hatch. We will call the Committee to order, and
let me just say this. We are not sure whether any Democrats are
going to come to the hearing, and my personal belief is that
they like all three of you and that we have a real chance of
maybe putting some judges through before the end of this
session. Now, it is miraculous if we do, but I think that with
the help of my fellow Committee members, we may be able to do
that.
But I still want to ask some questions of the three of you,
so I am going to ask all three of you to come up to the table.
Usually, we would start with the circuit court of appeals
nominee first, but I am going to have all three of you in the
interest of time.
Would you please raise your right hands?
Do you swear that the testimony you are about to give will
be the truth, the whole truth and nothing but the truth, so
help you God?
Mr. Griffith. Yes.
Mr. Crotty. Yes.
Mr. Seabright. Yes.
Chairman Hatch. Thank you. Please be seated.
Without objection, I will put a statement of Senator Leahy
into the record immediately following my statement, if you
will. Senator Leahy sends his regrets that he cannot be here.
I think what we will do is start with you, Mr. Griffith,
and have you make any statement you care to make. I would like
you during your statement to introduce your wife and family
members who are here, and friends, if you care to go that far.
Then we will do the same with you, Mr. Crotty, and then
with you, Mr. Seabright.
STATEMENT OF THOMAS B. GRIFFITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA
Mr. Griffith. Thank you very much, Senator. It is an honor
to be here. It is an honor to be nominated by President Bush
for this position, and I want to publicly thank the President
and express my gratitude to him for his confidence in me. I am
also mindful of the Senate schedule and how busy you all are,
and appreciate a great deal giving the three of us an
opportunity to appear before the Senate.
I would like to introduce my family, if that is okay.
Behind me is my wife of 28 years, Susan Stell Griffith.
Chairman Hatch. We are so happy to have you here, Susan.
Mr. Griffith. And her father, my father-in-law, the best
father-in-law in the world, William Stell.
Chairman Hatch. That is a good sign, when the father-in-
law--
Mr. Griffith. That is right.
Chairman Hatch. We are happy to have you here.
Mr. Griffith. My wife and I have six children, two of whom
still live in the Washington, D.C., area, our two married
daughters, and I would like to introduce them and their
husbands, if that is all right.
Chairman Hatch. That would be great.
Mr. Griffith. Eric Watts and Chelsea Griffith Watts.
Chairman Hatch. So happy to have you here.
Mr. Griffith. My daughter Chelsea is not feeling too well
today because she is expecting and suffering from morning
sickness.
Chairman Hatch. Some of us know how to deliver babies.
Mr. Griffith. Fortunately, we are not at that point just
yet.
Then I would also like to introduce my son-in-law Ryan
Clegg and his wife, my daughter, Megan Griffith Clegg.
Chairman Hatch. So happy to have you both here.
Mr. Griffith. Our children are home in Utah and I have a
son--
Chairman Hatch. I know you had a number of friends in the
audience both this morning and now.
Mr. Griffith. I am grateful for their presence.
If I might just say one further expression of gratitude, I
am very grateful to be back here in the Senate. This is an
institution that I love and for which I have profound
admiration and respect.
I counted among the greatest honors of my life that I was
able to serve as Senate Legal Counsel. Some nice things were
said about that this morning. I want to acknowledge that
earlier today, my predecessor as Senate Legal Counsel, Michael
Davidson, one of the finest lawyers I have ever worked with or
known, was here, and I want to say publicly that much of the
credit that you and others gave me for my performance as Senate
Legal Counsel was because I was trained by Mike Davidson.
But I am honored to be here before the Committee, and I am
willing and anxious to answer any questions that you may have.
[The biographical information of Mr. Griffith follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Hatch. Well, thank you so much, Mr. Griffith.
Mr. Crotty.
STATEMENT OF PAUL A. CROTTY, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF NEW YORK
Mr. Crotty. Senator, good morning. Thank you very much.
Like Mr. Griffith, I would like to join in his thanks to you
for convening this hearing and the many courtesies your staff
has extended to us building up to the hearing today.
I, too, am honored by the nomination of the President of
the United States and very thankful to the President for the
honor he has conferred upon me in nominating me. I know that my
nomination takes place because of the strong support I have
received from Senator Schumer over the last 2 years. I am very
appreciative of that, along with the support of Governor
Pataki, who joins with the Senator, as he indicated in his
opening remarks about how things work together to produce
acceptable candidates for nomination to the district courts in
New York State.
If I could, Mr. Chairman, I would like to introduce my
family who is with me today. First of all, my wife Jane of 37
years.
Chairman Hatch. Jane, we are happy to have you here.
Mr. Crotty. And my son John. John is the Executive Vice
President of the Housing Development Corporation of New York
City, the leading multi-family bond issuer in the United
States, and his wife Kate.
Chairman Hatch. John and Kate, we are happy to have you
here.
Mr. Crotty. My daughter Elizabeth, who is in her fourth
year with Mr. Morgenthau. She is a member of Trial Bureau 70.
She just moved over to the Special Investigations Unit.
Chairman Hatch. Very happy to have you here.
Mr. Crotty. And my son David, who is with Verizon and works
in the area of strategic development and works on mergers and
acquisition.
I am also joined by two of my brothers--my brother Bob, who
is a partner at Kelley, Drye and Warren in New York City, and
my brother Jerry, who was Secretary to Governor Cuomo, who is
now working in New Jersey.
Chairman Hatch. Happy to have you here.
Mr. Crotty. And two colleagues from Verizon--Roger Mott,
who is in our legislative office here in Washington, and Tom
Dunne. Tom Dunne and I worked together very closely on
repairing the telephone networks after the terrorist attack on
9/11, and Tom is one of the great unheralded heroes of
Verizon's efforts in restoring telephone communications.
So thank you very much, Senator.
Chairman Hatch. Well, we are honored to have all of you
here.
Mr. Crotty. Thank you.
Chairman Hatch. Thank you, Mr. Crotty.
[The biographical information of Mr. Crotty follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Hatch. Mr. Seabright, we will hear from you now.
STATEMENT OF J. MICHAEL SEABRIGHT, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF HAWAII
Mr. Seabright. Thank you very much, Senator Hatch. I
appreciate the opportunity to come here today and appear before
you.
I, too, want to begin by thanking the President for the
honor of nominating me for this position for District Court
Judge for the District of Hawaii. I also want to thank and
recognize the two Senators, my home State Senators, Senators
Inouye and Akaka, for their support for my nomination, and
their help in getting me through this process and understanding
the process and really walking me through the process.
I also would like to reintroduce, behind me, my wife
Margaret Ahn.
Chairman Hatch. Margaret, happy to have you with us.
Mr. Seabright. My daughter, who is a sophomore in high
school and getting a few days off high school coming to
Washington, Kate.
Chairman Hatch. That is great. Good to have you here.
Mr. Seabright. And my son Nick, who likewise--he is in the
sixth grade and gets a few days off school, but gets a real
nice lesson in civics.
Chairman Hatch. A wonderful family.
Mr. Seabright. And then my mother Joan is here.
Chairman Hatch. Happy to have you here, Mom.
Mr. Seabright. My sister Leslie.
Chairman Hatch. Leslie.
Mr. Seabright. And my brother-in-law Adam.
Chairman Hatch. It is great to have you all here.
Mr. Seabright. Thank you.
[The biographical information of Mr. Seabright follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Hatch. Well, we are delighted to have all of you
here. These positions are, to me, some of the most important
positions in our country. One-third of the separated powers of
this country happen to be the judiciary, so we take this very
seriously. Everybody on this Committee takes it seriously. We
have had all kinds of experiences over the last 28 years with
regard to judicial nominees. I think it is important that we
ask a few questions here. I believe that all three of you
should be able to be confirmed.
Let me start with you, Mr. Griffith, since there has been
some controversy with regard to some of the experiences that
you have gone through. If you are confirmed, Mr. Griffith, your
ability to work with other judges on the Circuit Court of
Appeals for the District of Columbia will be an important
element of your effectiveness.
Can you please tell us what you believe the role of a judge
should be--well, the role and significance of collegiality is
and how you will contribute to it once you become a judge?
Mr. Griffith. Thank you. I think that is a critical
question. I think it is a critical attribute that judges need
to find ways to work with their colleagues. What they are about
is administering laws fairly and justly. They are about a
process that ought to be collaborative to get the benefit of
colleagues' thoughts on nettlesome issues that have great
impact on the lives of the parties.
So I think collegiality is an indispensable requirement of
an appeals court judge, and I believe that I have demonstrated
through my life that I have found ways to reach out to others,
to collaborate, to come up with shared solutions.
Chairman Hatch. That has been my experience with you.
Mr. Crotty, how do you feel about that?
Mr. Crotty. Well, Senator, thank you for the question.
Collegiality, of course, is very important, but on a district
court it is a little bit different. The importance there, I
think, is collegiality between the bench and bar and having a
district court judge being able to treat the litigants before
him with courtesy and respect, while running a courtroom which
is based on decorum and order so that the interests of justice
are fairly served.
The role of collegiality in a district court is also
supported by the collegiality that exists among the district
court judges and it is an important attribute of the Southern
District of New York. They have always gotten along well with
one another. I know many of the judges based on my own personal
experience and appearances in the courthouse, and I hope I
would be able to contribute to that in a very positive vein so
that there is collegiality not only among the district court
judges, but more importantly collegiality between the judge and
those appearing before the judge on matters of great importance
to the litigants.
Chairman Hatch. Well, thank you.
Mr. Seabright.
Mr. Seabright. Thank you, Senator. Coming from Hawaii, we
have a small district. We only have right now three full-time
district court judges. If confirmed, I would be the fourth, and
I know all three of the judges very well. I have tried many
cases before them as a career Assistant United States Attorney
in the District of Hawaii. I get along well with all three of
them and respect them greatly.
And I have no question that the collegiality among the four
of us, if I was confirmed, would work greatly towards the
benefit of the court in making it run smoothly and having the
judges be able to work cooperatively to implement the various
rules and procedures that are necessary in the court.
And I agree with Mr. Crotty, as well, that it is vitally
important that a district court judge show civility towards the
litigants that appear before that court. And I can assure you,
Senator, and the Committee as a whole that in my practice of
law I have always done that in the past and I will continue to
do that as a district court judge.
Chairman Hatch. Well, thank you.
Now, Mr. Griffith, could you please speak about the
importance of judicial temperament and indicate what elements
of judicial temperament that you consider to be the most
important?
Mr. Griffith. Thank you. I think judicial temperament is
critically important. A litigant ought to be able to have
confidence that when he or she brings a dispute before a court
and a judge is involved that that judge is thoughtful, is fair,
is scrupulous in attention to fact, is diligent in identifying
the principles of law that govern, and then is fair and
impartial in applying that law to the dispute. Litigants
deserve that when they come into the courts of the United
States.
And so I think all of those elements are critical to
judicial temperament. I think perhaps the most important is the
willingness to withhold judgment until all arguments are heard,
until all facts are explored, so that the decision the judge
makes can be the most considered and most accurate.
Chairman Hatch. Thank you.
Do you agree with that, Mr. Crotty?
Mr. Crotty. Yes, I do, Senator. I was going to quote Finley
Peter Dunne, who was a great commentator around the time of
Teddy Roosevelt, who, through is character, Mr. Dooley, said
with regard to judicial temperament he has the judicial
temperament; he hates work.
But I think today we have to be at the opposite end of that
spectrum, and I think that temperament--to be a good district
court judge, a good circuit court judge, you have to be willing
to work, and work hard. And I think important in that is the
willingness to listen and to learn from the advocates who
appear before you, to give them an opportunity to make their
case, and do that against the background of respecting the role
of advocate, extending them courtesy and trying to be
responsive. And many of the values that Mr. Griffith cites, of
course, I agree with. That would be my answer.
Chairman Hatch. Thank you.
I think you agree with both of those, don't you?
Mr. Seabright. I do, Senator.
Chairman Hatch. That is great.
[Laughter.]
Mr. Griffith. Maybe we could start at the other end and
come down.
[Laughter.]
Chairman Hatch. It would have been the end of you if you
didn't agree.
[Laughter.]
Chairman Hatch. All three of you, I take it, agree that it
is important for lawyers to do pro bono work.
Mr. Crotty. Yes, Senator.
Mr. Griffith. Yes.
Mr. Seabright. Yes.
Chairman Hatch. Let me go to Mr. Griffith. Now, I don't
want you two to feel excluded here, but there have been some
issues raised about Mr. Griffith that I would like to clarify
and resolve for the benefit of my colleagues. I have no doubt
that all three of you are worthy of becoming Federal judges.
Let me just go to you, Mr. Griffith, and ask you these.
Some have attempted to make much of the lapse of your bar
license here in Washington, D.C. In fact, you have had some
pretty vicious articles written about that.
Mr. Griffith. I have noticed.
Chairman Hatch. Let me just read to you an excerpt of a
letter sent to me and my good friend from Vermont, Senator
Leahy, from Stephen Umin, of the law firm of Williams and
Connolly, one of the most prestigious firms in this town.
Mr. Griffith. Mr. Umin was here earlier today and had to
leave.
Chairman Hatch. He was here to support you.
Mr. Griffith. Yes.
Chairman Hatch. I won't read the whole letter. I will put
it in the record, without objection. But he said, ``Dear
Chairman Hatch and Senator Leahy, we write in support of the
nomination of Thomas B. Griffith to the United States Court of
Appeals for the D.C. Circuit. We have worked with Tom in a
variety of contexts and can attest to his outstanding character
and legal ability. Recently, Tom was unfairly portrayed in the
Washington Post for late payment of his D.C. Bar dues. The Post
improperly equated Tom's situation to `disciplinary
suspension,' a rare sanction imposed only when a lawyer
knowingly refuses to pay bar dues. It was nothing of the kind.
When advised of the problem, Tom promptly paid his dues in
full. Tom is an outstanding attorney who takes his
responsibilities as a member...''
But more specifically, he says in this letter, ``Each year,
the D.C. Bar sends its members a reminder to renew their bar
memberships. In this process, there is always potential for
inadvertent oversight. As a result, the D.C. Bar Council notes
that every year over 3,000 D.C. lawyers and a number of sitting
judges are `administratively suspended' for late payment of
dues. This is what happened to Tom. By immediately paying his
dues when he became aware of the oversight, Tom took the proper
course of action. According to the D.C. Bar Council, such an
oversight is entirely common and of no major concern,
particularly where no reminder notice is sent.''
Now, this letter from Mr. Umin is endorsed by over a dozen
prominent District of Columbia lawyers. I have other letters
from the likes of former Chief Judge of the U.S. Court of
Appeals for the D.C. Circuit, Abner Mikva, Hofstra Professor of
Law Monroe Freedman, and George Washington Professor of Law
Thomas Morgan, experts in ethics, which I will make a part of
this record, without objection. Each of these individuals point
out the distinction between a technical administrative
suspension and disciplinary suspensions.
Now, can you shed some light on this issue for us? Tell us
what happened so that everybody knows and we get this put
behind you, because you have been very unfairly treated on this
issue.
Mr. Griffith. I would be happy to, Senator Hatch, and thank
you for the opportunity to respond to that question. First of
all, it was an oversight on my part and I take full
responsibility for it. I deeply regret that my bar dues were
not paid in 1998 and for 2 years thereafter.
If you will allow me, maybe I can provide some context to
explain what happened.
Chairman Hatch. Go ahead.
Mr. Griffith. I graduated from law school in 1985, from the
University of Virginia, and went to work in Charlotte, North
Carolina, at a fine firm that you mentioned earlier today,
Robinson, Bradshaw and Hinson. As an associate there, I learned
that one of the things that law firms typically do for their
lawyers is keep track of their bar membership dues. And in
1985, 1986, 1987, all the way through 1989, my law firm in
Charlotte paid my bar dues. I can tell you right now, I did not
give a single thought to that. They did it automatically and I
was grateful for it.
Chairman Hatch. And you relied on it?
Mr. Griffith. And I relied on them to do that.
When I came to Washington, D.C., in 1989, I was first
associated and then became a partner at the law firm of Wiley,
Rein and Fielding. I found out they did the same thing, as
well. And so from 1989 to 1994, I relied on them and I really
never gave a thought to whether my bar dues were going to be
paid. I just delegated that to them and relied on that.
When I became Senate Legal Counsel in 1995, much to my
chagrin I learned that the Senate does not pay one's bar dues.
It is not an excessive amount. So that wasn't a major burden. I
think at the time it was $120, $130, $140 or so. But when I
learned that the Senate wouldn't pay, I notified the D.C. Bar
to send the bar notices to my home, where I pay personal bills.
They did so in `95, `96 and `97, and every time they sent a
notice, I paid.
In 1998, Senator, I don't know what happened. I have no
recall of ever receiving a notice from the D.C. Bar in 1998
that my bar dues were due or that they were past due or that
they were about to, you know, cause my membership to lapse. I
have no memory of receiving any such notice. And to my
knowledge, I have been told that neither does the D.C. Bar have
any record that they sent out any of those notices. And so in
1998, my bar membership lapsed due to my inadvertent failure to
pay my bar dues.
In 1999, I left the Senate. After the impeachment trial, I
left the Senate and returned to my law firm, at Wiley, Rein and
Fielding, and expected that they again would pay my bar dues
and keep me--
Chairman Hatch. As they had always done.
Mr. Griffith. As they had always done, and keep me up to
date. They did not, and they have acknowledged their error in
it. When I returned to my firm, I had no idea that my
membership had been suspended on a temporary basis for this
lapse and was oblivious to the fact, assuming that my law firm
was going to continue, as they had done before, to pay my bar
dues.
I left Wiley, Rein and Fielding in 2000 to become Assistant
to the President and General Counsel at Brigham Young
University. I first learned that my bar dues had not been paid
and that my membership had lapsed in 2001. I remember the day
well.
Chairman Hatch. How did you remedy that?
Mr. Griffith. My secretary came into the office and said
she had just spoken with the D.C. Bar. We were inquiring about
getting a certificate of good standing, and she said the D.C.
Bar says it is fine; they will give you the certificate of good
standing; you just got to pay the back dues you owe. And I
said, what? And she said, but don't worry; they said that you
have 5 years to pay them. And I said, well, no, I don't have 5
years to pay them; I have got a week. Let's cut the check and
get this done, upon which I immediately paid. The D.C. Bar
immediately sent me a certificate of good standing. They
treated it, as Mr. Umin's letters suggest, as an administrative
matter. It was certainly not a disciplinary matter.
Now, having said all that, I bear responsibility for the
fact that my bar dues weren't paid. I relied on others and I
should not have. I should not have relied on others to do it.
And let me assure you today--it may not come as any surprise--I
don't rely on anybody to pay my bar dues now. I know that D.C.
Bar dues are due July 1st of each year, and if you talk to my
current secretary, I think it is about beginning in April when
I start hectoring her to say has it come in yet, has it come in
yet?
I take my membership in the bar and the obligations of the
bar seriously. I deeply regret that through my oversight that
this problem happened. But I can assure you, Senator, that had
I known in 1998 that my bar membership lapsed for an
inadvertent failure to pay my bar dues, I would have
immediately rectified it. In fact, when I did learn it, I
immediately rectified it.
Chairman Hatch. I have no doubt about that.
Now, I notice the distinguished Senator from New York is
here. We are grateful that you came, and I am going to
interrupt this hearing.
I appreciate that explanation because that should wipe away
any concerns, because that could happen to any of us,
especially if you don't get a notice. I think we all rely on
those notices.
Mr. Griffith. I don't anymore.
Chairman Hatch. I can see that. Well, that is a good
practice. I am going to have to start thinking about my own
notices from here on in.
We are going to turn to the distinguished Senator from New
York and show deference here. We are grateful that you would
take time out of what we know is a really busy schedule to come
and chat with us here today. If you would care to, you could do
it from up here.
PRESENTATION OF PAUL A. CROTTY, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK, BY HON. HILLARY RODHAM
CLINTON, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Clinton. That is fine, Mr. Chairman. I am very
appreciative of this opportunity to come and saw a few words on
behalf of an excellent nominee, Paul Austin Crotty, who has
been nominated to serve on the United States District Court for
the Southern District of New York. It is a great pleasure for
both Senator Schumer and myself to be such enthusiastic
supporters of this nomination.
I know that there are a number of family members. I don't
know if they have been introduced yet, Paul, but I think you
can see by the strong support of the family who is here, as
well as Paul's mother, who lives in Buffalo, New York, that
this is a family of great distinction and service in New York.
There are few individuals who I believe the Senate could
confirm or the President nominate who could bring such a
breadth and depth of relevant professional and public community
experiences. He has been, of course, a distinguished lawyer in
the private sector. He has a great deal of experience also in
the business world, having served as a very important executive
for Verizon.
But in the business of his work, he has always found time
to serve his community. He took time to serve on the Lower
Manhattan Development Board, created after the September 11th
terrorist attacks, to help Manhattan and New York recover from
the devastation of those attacks. He has been active in a
number of important organizations, like the New York Urban
League and the City Bar Fund, the United Way.
You couldn't really do justice to his involvements without
also mentioning that he has served both Republican and
Democratic administrations in New York City. He certainly
served with distinction both former Mayor Ed Koch and former
Mayor Giuliani.
So without question, he has the intellect, demeanor,
maturity and commitment to serve with distinction on the
Federal bench. We are very fortunate to have a nominee of his
standing that I am sure will be confirmed to begin service in
New York. And he will not only make people from New York very
proud, but I believe this Committee, the Senate and our country
proud as well.
So I thank you for letting me come by and make a few brief
remarks. I didn't want the moment to pass, Mr. Chairman,
because it is not always the case that we have such
enthusiastic support on both sides of the aisle for a nominee.
This is one that I am very proud to be here to lend my voice
to, and I thank you for the courtesy of this time.
Chairman Hatch. Well, thank you. It isn't always the case,
so it is really wonderful to be able to see this kind of
bipartisanship.
Mr. Crotty. Mr. Chairman, could I express my thanks to the
Senator for her encouragement and her endorsement this morning,
which I am very appreciative of, and also for the many
courtesies that she has extended to my family, especially my
mother? The Senator was good enough to send her a nice note and
give her a copy of her book when my mother turned 90. And I
must say to the Senator that she is a fan for life, and many
more fans in the Crotty family.
So thank you very much, Senator.
Chairman Hatch. Yes. I want one of those autographed books,
too.
[Laughter.]
Chairman Hatch. Remember that, Senator. We are honored to
have you here.
Mr. Crotty, I think it is a real tribute to you to have
both of these New York Senators of another party come and
testify so graciously and so strongly for you.
Mr. Crotty. Thank you, Mr. Chairman.
Chairman Hatch. If Schumer and Clinton are for you, then I
am certainly for, is all I can say.
Mr. Crotty. Thank you very much, Mr. Chairman.
Chairman Hatch. I want to go back to our questions to
clarify some of these problems with which I think you have been
unfairly treated, Mr. Griffith.
When you filled out your application to the Utah State Bar,
question 52 asks whether you have previously been disbarred,
suspended, censured, sanctioned, disciplined, or otherwise
reprimanded or disqualified, whether publicly or privately, as
an attorney. You answered no to this question.
Now, let me ask you, have you ever been disciplined in any
way by any bar, including in D.C. or Utah?
Mr. Griffith. No, Senator, I have not.
Chairman Hatch. Now, some have criticized you for answering
no on that, since you did have this administrative suspension
that 3,000 lawyers in D.C. commonly have from time to time. How
would you answer that?
Mr. Griffith. When I filled that out, the thought never
crossed my mind that that question might relate to a temporary
lapse due to an inadvertent failure to pay bar dues. The
question--
Chairman Hatch. Some would say, well, it wasn't temporary,
it was 3 years. But the fact is that you have explained it
adequately that the only year really where you were personally
responsible for it, or at least where you had the sole
obligation to take care of it was 1998, when you didn't receive
a notice.
Mr. Griffith. Yes, sir, that is correct.
Chairman Hatch. And the bar admits they probably didn't
send you a notice.
Mr. Griffith. Yes, sir, that is correct.
Chairman Hatch. The other two, you had relied on your firm,
which you had always done before. But go ahead.
Mr. Griffith. I was just saying the thought never occurred
to me that that might cover--that someone might argue that that
had something to do with this administrative action that was
taken.
And if I might add, this issue came to light when I filled
out my Senate Judiciary Committee questionnaire, which we all
labored over, a great labor of love. The question there I was
asked--I don't remember the exact wording; I think it is
question number 11. List your bar memberships and any dates in
which your membership has lapsed. And I said my membership in
D.C. had lapsed during this period of time and that is how the
issue came to light. But I never thought that what happened to
me was in any way the gravamen of that question, which is
clearly--I thought clearly having to do with a disciplinary
matter.
Chairman Hatch. Okay, I think that is a good explanation
that anybody should accept.
Have you ever been disciplined in any way by any bar
association?
Mr. Griffith. No, sir.
Chairman Hatch. As many have pointed out and as the letter
from Mr. Umin pointed out, the D.C. Bar administratively
suspends over 3,000 D.C. lawyers, including many sitting
judges, for late payment of dues, and these are not considered
disciplinary actions. Is that right?
Mr. Griffith. That is my understanding.
Chairman Hatch. Now, you have been criticized by some for
not being a member of the Utah Bar while assuming the position
of Assistant to the President and General Counsel of Brigham
Young University, the largest private university in the
country.
Please tell us what efforts you made to ensure compliance
with the Utah Rules of Professional Conduct and to avoid the
unlawful practice of law.
Mr. Griffith. Certainly, I would be glad to, Senator. I
have never engaged in the unlawful practice of law. When I
accepted the position to be Assistant to the President and
General Counsel at Brigham Young University, it was my
understanding that in Utah in-house counsel need not be
licensed in Utah, provided that when legally advice is given,
it is done so in close association with active members of the
Utah Bar.
I was taking a position at a large institution that had a
multi-jurisdictional presence. I knew that most of my legal
work was going to be involved with Federal statutes, with
Federal regulations, and so I organized my office accordingly.
When I am involved in legal matters--not all of the work
that I do is legal work, but when I am involved in legal
matters, I am very careful to closely associate myself with
active members of the Utah Bar. I supervise an office that
includes four other attorneys, each of whom is an active member
of the Utah Bar.
I frequently hire outside counsel on matters, and so I am
always closely associated with an active member of the Utah
Bar. And I do that whenever I am anywhere close to doing legal
work, and especially so on those rare instances when I have to
get involved with a matter of distinctly Utah law.
But that was my understanding. That is the way I have
organized my office and that is the way I have organized my
work. That understanding was confirmed when I arrived in Utah
and began to work at the university in conversations with other
Utah lawyers, and that is still my understanding today.
I believe you made reference earlier to a letter to the
Committee from five past presidents of the Utah Bar and the
current executive director of the Utah Bar that say an in-house
counsel in Utah need not be licensed in Utah, provided that he
or she is closely associated with active members of the Utah
Bar and makes no appearances in Utah courts or signs no Utah
pleadings. And I haven't done either of those either.
So I have tried to be as careful as I can to--and I have
been meticulous about making certain that when I am involved in
legal matters, I only do so with active members of the Utah
Bar.
Chairman Hatch. So you had four Utah lawyers who advised
you on Utah Bar matters?
Mr. Griffith. Yes.
Chairman Hatch. Utah legal matters?
Mr. Griffith. Yes. I actually use--we use them for more
than just Utah matters, but for any legal matter we work
collaboratively.
Chairman Hatch. Yes, I am sure you use them for a variety
of things.
So you are asserting here, and I think properly so, that
you did not unlawfully practice law in Utah?
Mr. Griffith. Absolutely not. And, Senator, let me tell you
another reason why I wouldn't do that. I care too much about my
clients to do anything consciously that would put them at risk,
and if I thought for a moment that what I was doing for my
client--and now my client is Brigham Young University--was in
any way jeopardizing them, I wouldn't do it, I wouldn't do it.
I have tried to be very careful about that throughout my career
and I have been careful about that here.
Chairman Hatch. This position you held was also an
administrative position, as well, where you particularly
advised the president of the university on legal matters and
other matters as well.
Mr. Griffith. That is right. Not all of what I do is legal
work. I am an officer of the university and there is a fair
amount of non-legal work, but there is a lot of legal work as
well. I am the general counsel as well.
Chairman Hatch. And you understand the distinctions here?
Mr. Griffith. Yes.
Chairman Hatch. In fact, I don't think he would be
offended, but one of the former presidents of the Utah Bar is
here today, Randy Dreier.
Mr. Griffith. That is my understanding.
Chairman Hatch. I said hello to Randy as I came into the
meeting and he has been a very strong supporter of your
nomination.
Mr. Griffith. As you know, Mr. Dreier was one of the five
past presidents of the Utah Bar who signed the letter I
referred to. I had never met Mr. Dreier before today and so I
was pleased to make his acquaintance.
Chairman Hatch. Well, it is my understanding that although
there is no special exemption for general counsels, the Utah
Bar advised you of what you could do in order to avoid the
unlawful practice of law while remaining in your current
position as General Counsel to Brigham Young University.
Now, have you adhered to those recommendations?
Mr. Griffith. Absolutely. They were recommendations that I
had been adhering to before the letter came and that I have
since. They describe precisely what I have been doing since
arriving in Utah.
Chairman Hatch. I have been here during all those years
when you were counsel to the Senate, the Senate Legal Counsel,
and some of those years were difficult years.
Mr. Griffith. They were.
Chairman Hatch. One of the most important trials in the
history of the country was held during your tenure as Senate
Legal Counsel, and that was, of course, the impeachment trial
of President Clinton. And I happen to know that both sides felt
that you acted not only honorably, but effectively and
professionally in every way during that very difficult time for
all of us. I don't know of very many attorneys that have had--
in fact, I don't know of any attorneys other than those that
were here at the time that have had that experience.
My experience with you has been that you are a person of
the highest ethical, moral and legal status. So, naturally, not
just because of our friendship, I would support you for any
court in this land, and I personally believe that you would add
a great dimension to the Circuit Court of Appeals for the
District of Columbia. And I think our colleagues understand
that, as well. At least I am quite sure of that and I hope that
is true. They should-- let's put it that way--because many of
them have had the experience of knowing you.
As far as I am concerned, you are a member of this Senate
family and you deserve to be confirmed. So I am going to do
everything in my power to see that you are, and I believe I
will have help from others as well.
Mr. Griffith. Thank you.
Chairman Hatch. Frankly, those were the major questions
that I think had been raised about you, and I am sure you are
pleased to have had an opportunity to explain them in public--
Mr. Griffith. Very pleased, at long last.
Chairman Hatch.--since I think you haven't been treated
fairly, perhaps because those who wrote about these just didn't
have the information that we are bringing out here today.
I would put in the record at this point a wide variety of
letters from Democrats and Republicans, who are top leaders of
the bar and otherwise here in the District of Columbia and
elsewhere, who are strong supporters of this nominee and who
believe he will be an excellent addition to the Circuit Court
of Appeals for the District of Columbia.
I also want to compliment you, Mr. Crotty, and you, Mr.
Seabright. You come with the best of recommendations. I think
the comments of your Senators have been very, very good.
Frankly, I know a lot about both of you and I think that the
President deserves great commendation for all three of you. We
will do everything we can to try and get you through before the
end of this session. We only have a week and so we will have to
do that in the best way we can, and I will see what can be done
to get this done. We are appreciative that you are all here
today. I believe that our colleagues should be comforted by the
answers to the questions that we have asked.
With that, I don't see any reason to continue this hearing.
We are going to do our very best to get all three of you
through, and hopefully we can do that before the end of this
session of Congress. I will do my best to do that and I hope my
colleagues will honor me with the respect of being able to do
that.
Mr. Crotty. Thank you very much, Mr. Chairman.
Mr. Griffith. Thank you very much, Senator.
Mr. Seabright. Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you, and we thank your families
for being here. We appreciate all of you sitting through this
and we are sorry we had to have this interruption in between,
but I will always try and accommodate my colleagues, if I can.
As much as it was an interruption, I think it has turned out to
be a pretty good day. Thanks so much. Great to be with you.
Mr. Seabright. Thank you.
Mr. Griffith. Thank you, Mr. Chairman.
Chairman Hatch. We will recess until further notice.
[Whereupon, at 12:00 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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