[Senate Hearing 108-914]
[From the U.S. Government Printing Office]
S. Hrg. 108-914
NOMINATIONS OF BRUCE E. KASOLD, ALAN G. LANCE, SR., LAWRENCE B. HAGEL,
ROBERT N. DAVIS, WILLIAM A. MOORMAN, AND MARY J. SCHOELEN, TO BE
JUDGES, U.S. COURT OF APPEALS FOR VETERANS CLAIMS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST AND SECOND SESSIONS
__________
MARCH 4, 2003, JUNE 17, 2003, APRIL 1, 2004 AND SEPTEMBER 30, 2004
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
-----
U.S. GOVERNMENT PRINTING OFFICE
32-820 PDF WASHINGTON : 2007
------------------------------------------------------------------
For sale by Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2250. Mail: Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON VETERANS' AFFAIRS
Arlen Specter, Pennsylvania, Chairman
Ben Nighthorse Campbell, Colorado Bob Graham, Florida
Larry E. Craig, Idaho John D. Rockefeller IV, West
Kay Bailey Hutchison, Texas Virginia
Jim Bunning, Kentucky James M. Jeffords, (I) Vermont
John Ensign, Nevada Daniel K. Akaka, Hawaii
Lindsey O. Graham, South Carolina Patty Murray, Washington
Lisa Murkowski, Alaska Zell Miller, Georgia
E. Benjamin Nelson, Nebraska
William F. Tuerk, Staff Director and Chief Counsel
Bryant Hall, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
March 4, 2003
Nominations Including Bruce E. Kasold to be Judge,
U.S. Court of Appeals for Veterans Claims
SENATORS
Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania.... 1
Warner, Hon. John, U.S. Senator from Virginia.................... 1
WITNESSES
Kasold, Bruce E., nominee to be Judge, U.S. Court of Appeals for
Veterans Claims................................................ 3
Prepared statement........................................... 4
Questionnaire for Presidential nominees...................... 5
Supplemental questionnaire................................... 8
Attachments.............................................. 14
APPENDIX
Campbell, Hon. Ben Nighthorse, prepared statement................ 21
Bunning, Hon. Jim, prepared statement............................ 21
----------
June 17, 2003
Nominations of Alan G. Lance, Sr., and Lawrence B. Hagel
to be Judges, U.S. Court of Appeals for Veterans Claims
SENATORS
Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania.... 23
Craig, Hon. Larry E., U.S. Senator from Idaho.................... 23
Crapo, Hon. Michael, D., U.S. Senator from Idaho................. 24
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado........ 72
WITNESSES
Hagel, Lawrence B., nominee to be Judge, U.S. Court of Appeals
for Veterans Claims............................................ 25
Prepared statement........................................... 26
Questionnaire for Presidential nominees...................... 27
Supplemental questionnaire................................... 35
Response to written questions................................ 51
Lance, Alan G., Sr., nominee to be Judge, U.S. Court of Appeals
for Veterans Claims............................................ 54
Prepared statement........................................... 54
Questionnaire for Presidential nominees...................... 57
Supplemental questionnaire................................... 61
----------
April 1, 2004
Nominations Including Robert N. Davis to be Judge,
U.S. Court of Appeals for Veterans Claims
SENATORS
Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania.... 79
Cochran, Hon. Thad, U.S. Senator from Mississippi................ 79
Lott, Hon. Trent, U.S. Senator from Mississippi.................. 80
WITNESSES
Robert N. Davis, nominee to be Judge, U.S. Court of Appeals for
Veterans Claims
Prepared statement........................................... 82
Questionnaire for Presidential nominees...................... 83
Supplemental questionnaire................................... 88
Attachments.............................................. 94
Response to written questions................................ 110
----------
September 30, 2004
Nominations Including Mary J. Schoelen and William A. Moorman
to be Judges, U.S. Court of Appeals for Veterans Claims
SENATORS
Page
Specter, Hon. Allen, Chairman, U.S. Senator from Pennsylvania.... 117
Graham, Hon. Lindsey, U.S. Senator from South Carolina........... 131
Rockefeller, Hon. John D., IV, U.S. Senator from West Virginia... 131
WITNESSES
Schoelen, Mary J., nominee to be Judge, U.S. Court of Appeals for
Veterans Claims................................................ 117
Prepared statement........................................... 119
Questionnaire for Presidential nominees...................... 120
Attachments.............................................. 124
Supplemental questionnaire................................... 125
Moorman, Major General William A. (Ret.), nominee to be Judge,
U.S. Court of Appeals for Veterans Claims...................... 137
Prepared statement........................................... 138
Questionnaire for Presidential nominees...................... 139
Supplemental questionnaire................................... 145
Attachments.............................................. 151
NOMINATIONS INCLUDING BRUCE E. KASOLD TO BE JUDGE, U.S. COURT OF
APPEALS FOR VETERANS CLAIMS
----------
TUESDAY, MARCH 4, 2003
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3 p.m., in Room
SR-418, Russell Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Warner, and Allen.
OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,
U.S. SENATOR FROM PENNSYLVANIA
Chairman Specter. The Committee on Veterans' Affairs will
now begin. We have the nomination of Bruce E. Kasold, Esquire,
to be judge of the U.S. Court of Appeals for Veterans Claims.
I will turn immediately to the senior Senator from Virginia
for the introduction of judge-to-be Kasold.
Senator Warner?
STATEMENT OF HON. JOHN WARNER,
U.S. SENATOR FROM VIRGINIA
Senator Warner. Thank you very much, Mr. Chairman and
Members of the Committee. I am delighted to appear here on
behalf of this distinguished nominee.
I have known Mr. Kasold for a very long time, Mr. Chairman.
He was on my staff as a Congressional fellow more than 12 years
ago. Later, when I was privileged to become Chairman of the
Rules Committee in 1995, Mr. Kasold became our chief counsel.
We steered our way through some heavy waters in those days. He
was always by my side and really handled the tough questions
very, very well.
He has an impressive resume. Graduated from the United
States Military Academy, Mr. Kasold went on to receive his law
degree from the University of Florida where he was on the Law
Review and earned the prestigious order of Order of the Coith.
Mr. Chairman, with all your tremendous achievements in the law,
you immediately recognize in this individual an outstanding
person, am I not correct?
Chairman Specter. You are correct. He may be overqualified.
Senator Warner. Thank you. In addition, he received his
master's in law from Georgetown University and a master's of
law equivalent from Judge Advocate General's graduate program
collocated on the University of Virginia. He has over 20 years
of service with the United States Army, first in the combat
arms, air defense artillery, and then as a judge advocate in
the Army's Judge Advocate General's Corps. Furthermore, in
addition to serving as the general counsel for the Augsberg
Military Command, Mr. Kasold served as assistant general
counsel in the Army's Office of General Counsel. He also served
as a special Assistant U.S. Attorney in military and
administrative law where he prosecuted numerous criminal cases
before court martial and tried cases before Federal
magistrates.
After retiring from the military, Mr. Kasold worked in the
private sector with the well-known firm of Holland & Knight. In
1998, Mr. Kasold moved on to his current position as chief
counsel for both the Secretary of the Senate and the Sergeant
at Arms. In this role, he has continued to serve the Senate,
the Members and the staff on issues such as administrative
claims and personnel matters. Without a doubt, Mr. Kasold's
education, legal experience, and achievements make him well-
suited, Mr. Chairman, and I am proud to be here on his behalf
today.
Might he at this time introduce to the Chairman the
numerous members of his family in attendance today?
Senator Specter. Thank you very much, Senator Warner for
those----
Senator Warner. If you will allow the nominee to introduce
his family, Mr. Chairman?
Chairman Specter. By all means.
Senator Warner. Thank you.
Mr. Kasold. We have my wife Patricia, my mom Louise, my son
Adam, and my in-laws, a host of them, Billy, Pam, my father-
and mother-in-law, my niece, Doris.
Chairman Specter. You have a wonderful family. It is quite
a turnout as a testament to you, Mr. Kasold. And that was an
elegant introduction by an elegant introducer. There was only
one item that I had awaited some comment on. Both of you--you
and Senator Warner--have been an avid squash player.
Senator Warner. That is correct.
Chairman Specter. And judge-to-be Kasold is an avid squash
player.
Senator Warner. That is correct.
Chairman Specter. Have you ever played squash? Are you able
to testify to his capability in that important aspect?
Senator Warner. No. When you get to be my age you transfer
to tennis, and he has been a frequent tennis partner, is and
will always be one. His golf game is awful.
[Laughter.]
Chairman Specter. You did not comment on his tennis game. I
can tell you his squash game is excellent. I know you have had
that knee issue, but you are too young to have given up squash,
Senator Warner.
Senator Warner. You are nice to say that. Thank you. We had
many good times together.
Chairman Specter. And we shall have some more.
Mr. Kasold, and General Nicholson, if you will both rise I
will administer the oath.
[Witnesses sworn.]
Chairman Specter. You may be seated, and we shall begin
with Mr. Kasold. Let me state for the record, in the interest
of full disclosure, that Mr. Kasold is a personal friend. For
many years we have been friends and squash opponents. And both
before and after his nomination, he has been a tenacious
player; gives no quarter. None is asked and certainly none is
given.
Mr. Kasold, do you care to make an opening statement?
Mr. Kasold. Yes, sir, I have a brief one.
STATEMENT OF BRUCE E. KASOLD, NOMINEE TO BE JUDGE, U.S. COURT
OF APPEALS FOR VETERANS CLAIMS
Thank you, Mr. Chairman. I would like to also thank Senator
Warner for his kind words.
Sir, it is an honor to have been nominated by the President
to serve as a judge on the United States Court of Appeals for
Veterans Claims. Indeed, I can think of no greater honor than
to serve those who have served our Nation in time of war and in
defense of peace.
I would like to thank my wife and son, my mom and dad, for
their total support and love, and my in-laws who are, indeed, a
second family. I would also like to thank you, Mr. Chairman,
for your support, and Senator Graham for his support in
recommending to the President, along with Senators Warner,
Lott, Thurmond, and Santorum, and Congressman Tom Davis. I
would like to thank Chesterfield Smith and Dick Duvall of the
law firm of Holland & Knight. There are many others to whom I
also extend my heartfelt thanks for their support and I have
noted them in my complete statement that I would ask be
included in the record.
Mr. Chairman, my education and experience are highlighted
in the information I have previously provided to the Committee,
but I would like to share with you some personal insights and
the way I try to approach life and how it might apply, should I
be confirmed. First, I try to follow the Golden Rule instilled
by my parents and faith, to do unto others as I would have them
unto me.
Second, I try to live, work, and play by the ideals
enshrined in my alma mater's motto, Duty, Honor, Country.
And third, I am a firm believer in the fact that Senator
Warner has crystallized in words so often in our meetings when
I worked for him, that there is no end to what we can
accomplish if we work together as a team and not worry about
individual glory.
Mr. Chairman, should I be confirmed to serve as a judge on
the Court of Appeals for Veterans Claims, I can assure you, the
Committee, the Senate, and those who come before the court that
I will endeavor to give my best, and to render decisions in a
fair and impartial manner based on the applicable law and facts
in the case.
I again thank you, and I am prepared to answer any
questions to the best of my ability.
[The prepared statement of Mr. Kasold follows:]
Prepared Statement of Bruce E. Kasold, Nominee to be Judge,
U.S. Court of Appeals for Veterans Claims
Mr. Chairman, Senator Graham, and Members of the Committee:
It is an honor to have been nominated by the President to serve as
a judge on the United States Court of Appeals for Veterans Claims.
Indeed, I can think of no greater honor than to serve those who have
served our Nation in time of war or in preparation therefore.
First and foremost, I would like to thank my wife and son, and my
Mom and Dad, for their total support and love, and my in-laws who are
indeed a second family. I would also like to thank you, Mr. Chairman,
for your support and that of Senator Graham, in recommending me to the
President, along with Senators Warner, Lott, Thurmond, and Santorum,
and Congressman Tom Davis.
I would also like to thank Chesterfield Smith and Dick Duvall of
Holland & Knight, as well as the other outstanding attorneys at Holland
& Knight with whom I have had the pleasure to work. I thank Secretary
of the Senate Emily Reynolds and former Secretaries of the Senate, Gary
Sisco and Jeri Thomson, as well as the Sergeant at Arms, Al Lenhardt,
and former Sergeant at Arms, Jim Ziglar, all terrific and supportive
bosses of mine. The Senate has indeed been fortunate to have such
capable leadership in its officer ranks.
Thanks, too, to Ernie Heuter, President of the National Legal
Center for the Public Interest and the Federal Bar Association for
their full support. Finally, my heartfelt thanks to the many fine
commanders, officers, and soldiers of the United States Army, the
professors at West Point, the University of Florida, Georgetown
University, and the Judge Advocate General's Graduate School located at
the University of Virginia, and the Sisters and teachers at St. John's
and at Mercy High, both in Riverhead, NY.
Mr. Chairman, my education and experience are highlighted in the
information I have previously provided to the Committee, but I would
like to share with you some personal insight in the way I approach life
and how it might apply should I be confirmed. First, I try to follow
the golden rule, instilled by my parents and faith, to do unto others
as I would have them do unto me. Second, I try to live, work, and play
by the ideals enshrined in my alma mater's motto: ``Duty, Honor,
Country.'' Third, I am a firm believer in the fact, as Senator Warner
often states, that there is no end to what we can accomplish if we work
together as a team and not worry about individual glory.
Mr. Chairman, should I be confirmed to serve as a judge on the
Court of Appeals for Veterans Claims, I can assure you, this Committee,
and the Senate, and those who come before the Court, that I will
endeavor to give my best and to render decisions in a fair and
impartial manner, based on the applicable law and facts in the case.
I again thank you, Mr. Chairman and Members of the Committee, and I
am prepared to answer any questions to the best of my ability.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Specter. Thank you very much, Mr. Kasold. Let us
begin with your concept of the nature and extent of the Federal
Government's obligation to the Nation's veterans and their
survivors or dependents.
Mr. Kasold. Sir, our Nation has always supported the
veteran. President Lincoln, I think, said that it was a
Nation's duty to care for the veteran who fought in wars and
their families, and I fully support that view.
Chairman Specter. The Court of the Veterans Claims allows
non-attorney practitioners to appear and argue for claimants.
Contrasting attorneys with non-attorney practitioners, how
would that affect your proceedings and your ultimate
adjudication of a case? Also include in that the so-called pro
se litigants, those who represent themselves.
Mr. Kasold. Sir, I do not think it would affect the
ultimate adjudication at all. I believe this court was designed
to ensure that the veterans receive the benefits that they are
entitled to. I think that actually as a judge, your case and
your workload might be easier when the claimant is represented
by counsel or by the Veterans Service Organizations. But I
think it is the duty of the judge to assess the facts, review
the case, and ensure that those benefits that the claimant is
entitled to are in fact awarded. So I do not think it would
impact the end results at all.
Chairman Specter. The judgeship is Article I as
distinguished from Article III judges who have life tenure. I
would be interested in your views as to what discretion as an
Article I judge you would give to executive branch
determinations contrasted with the approach of an Article III
judge with an independence of Article III standing.
Mr. Kasold. Sir, I do not think it would be any different.
I have reviewed the hearings before this panel and Chief Judge
Nebeker, the first chief judge of the court, I think addressed
it the way I view it, that deference is given to an agency when
it is interpreting its own organic legislation. Questions of
law are determined de novo, and the legislation creating this
court makes it clear that questions of fact are determined by
the Board of Veterans' Appeals and overturned only when not
substantiated fully.
Chairman Specter. Would you hesitate to reverse a Veterans'
Administration decision that is consistent with long-standing
VA practice but is contrary to your best reading of the words
of the statute or reasonable statutory interpretation?
Mr. Kasold. No, sir. If the best reading of the statute was
A, for example, I would not hesitate to overturn an
interpretation that had B. I recognize that regulations that
have been around for a long time are given certain weight, but
I also recognize that this court is new. It has been around for
about 12 years, and that many of the regulations in the
Veterans' Administration have not had a judicial review. So all
of that would factor into an evaluation of any interpretations.
Chairman Specter. Would the potential cost of overturning a
historical but arguably erroneous statutory interpretation
enter your decisionmaking in such a case?
Mr. Kasold. Sir, I do not think the cost of a decision
based on clear reading of the statute would enter into a
determination. If the statute is somewhat ambiguous, cost might
be a consideration as to what was really meant by the statute.
But if it is clear, cost would not enter into it.
Chairman Specter. There is a long-standing principle,
justice delayed is justice denied, and in many cases it does a
veteran little good to prevail on a claim after years of
decisions, appeals, remands, et cetera. Have you studied the
scope of authority that veterans court judges have to sua
sponte craft remedies? And in what sorts of cases, if any,
should the veteran court judges directly award compensation to
veteran claimants or remand the case to the VA to craft the
appropriate remedy?
Mr. Kasold. Sir, I would not say I have studied the scope
of authority of the court to sua sponte award a particular
remedy. I am aware that this is an appellate court. I am aware
of its scope of review. I am also aware of, or at least my
understanding of the legislation is that Congress intends for
benefits to receive their benefits. Congress has directed the
Government, through the Veterans' Administration, to assist the
veteran in developing the facts necessary to support a claim.
And Congress has directed the Secretary and the Board of
Veterans' Claims to balance out--if it is evenly balanced, to
give the benefit of the doubt to the claimant, and in your most
recent legislation you directed the court to consider that
requirement to have that balance.
I think as a judge, the whole purpose for this court is to
ensure that the veterans receive the benefits that they are
entitled to. It would certainly be my personal goal to bring
that about as quickly as possible. Whether or not the case gets
remanded depends on the facts of the case; whether or not you
can decide it on the facts before you and the law before you
depends on the individual case.
Chairman Specter. Public Law 107-330 provides that in
deciding a case, the Court of Appeals must take into account
the VA's application of the so-called ``benefit-of-the-doubt
rule.'' What is your understanding of this requirement and how
would you analyze the VA's compliance with the benefit of the
doubt rule?
Mr. Kasold. Sir, my understanding is that if you have a set
of facts--and I do not mean one on one side and three on the
other side, but just a set of facts that leave you in some kind
of doubt, that benefit of the doubt is to go to the veteran in
the award of the benefits. At the appellate level, I believe
Congress has made clear that we are to take that into
consideration, and in assessing the case, make a determination
as to whether or not that benefit of the doubt has, in fact,
been given to the claimant.
Chairman Specter. With your 21 years of active duty in the
U.S. Army, and the U.S. Senate for the last 7 years, do you
believe that your almost 30 years of Government service might
be seen by VA claimants as a cause for pro-Government bias? How
would you deal with that perception if, in fact, you found it
to exist?
Mr. Kasold. I do not think it would be fair, but I
recognize that some people may come with a view that an
individual who has worked for the Government might be biased.
If they were aware of my actual career, much of it in the JAG
Corps for the Army, in that position you serve the Government
at times and at other times you actually serve legal assistance
in assisting the soldier. I actually believe most veterans
would view somebody with that type of experience, JAG
experience and having knowledge of the JAG Corps, would
probably have a bias that you would get a fair hearing.
But I believe the way you take care of the bias is by being
fair and impartial in your dealings with claimants, from the
hearings that might take place to writing a clear opinion based
on fact and law so that they can understand, so that there are
no biases to be taken from the opinion.
Chairman Specter. Mr. Kasold, I know the answer to this
next question, but I am going to ask it for the record. There
is a large backlog of litigation and I know from our 6:30 a.m.
meetings you are always there ahead of time. Are you prepared
to work hard and be prompt and do your utmost in diligence to
perform your duties and to get rid of the backlog and move very
promptly on judicial decisions?
Mr. Kasold. Yes, sir.
Chairman Specter. Senator Thurmond made a comment in a
hearing during my early days on the Judiciary Committee more
than 20 years ago. There were two judges from Pennsylvania, two
nominees, and Senator Thurmond said, ``If you are confirmed, do
you promise to be courteous?'' That is translated into, if you
are confirmed, do you promise to be courteous? I thought to
myself that was a peculiar question because what are they going
to say except yes? And not surprisingly, both nominees answered
yes.
Then Senator Thurmond said, ``the more power a person has,
the more courteous the person should be.'' Translated into, the
more power a person has, the more courteous the person should
be. Whenever I am at a hearing for a judge nomination and
Senator Thurmond is not present, and he had been on this
Committee up until his term ended last January 3, when he is
not here I always ask that question. I know you are about to
promise to be courteous, right?
Mr. Kasold. Yes, sir.
Chairman Specter. But remember that once you have on that
robe you have a great deal of power. Some of the lawyers are
not going to suit your fancy. Some of them may not suit
anybody's fancy. And especially since you will not have
lawyers, you will be having non-lawyers represent people who
will not be familiar with the litigation rules, and pro se,
Latin for representing yourself. So bear that in mind. Many
nominees whom I have given the Thurmond admonition are to be
reminded later how helpful it is to think about that when they
tend to be irritated, or out of sorts, or feeling a little
above the reach of common people who do not have black robes.
Mr. Kasold, I am delighted to see you here today. It has
been a long struggle getting you here, for reasons which we do
not need to discuss. But I am confident that your confirmation
will proceed rapidly, notwithstanding the Estrada filibuster.
Chairman Specter. That concludes the hearing.
[Whereupon, at 4:08 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Ben Nighthorse Campbell,
U.S. Senator from Colorado
Thank you, Mr. Chairman. I appreciate your convening today's
hearing which will give us the opportunity to hear testimony from Bruce
Kasold, nominee to be Judge, Court of Appeals for Veterans Claims, and
John Nicholson, nominee to be Under Secretary for Memorial Affairs,
Department of Veterans Affairs. I welcome both witnesses and look
forward to their testimony.
Mr. Kasold, I understand you have spent some time here on the Hill
as Chief Counsel for the Secretary of the Senate and the Rules
Committee and also have experience working with the Pentagon Credit
Union. Your work reviewing benefit claims and issuing decisions on
appeals for the VA will be an important part of the effort to expedite
the claims process. Each veteran is entitled to fair and timely
consideration of his or her appeal.
And, Mr. Nicholson, I understand you are originally from Strubel,
Iowa, which has a population of about 80 persons. That is even smaller
than my town of Ignacio, Colorado. I think you will probably agree with
me that lots of very good people come from the small towns of this
Nation.
Throughout my terms in the House and Senate, I have been especially
interested in seeing that we honor the memory of those who have lost
their lives serving in our Nation's wars. And, one of the best ways we
can do that is to recognize and protect the sanctity of veterans'
memorials. In fact, I have a bill in the Senate right now that would
prohibit the desecration of veterans' memorials and permit guide signs
to veterans' cemeteries on Federal aid highways.
I am encouraged that the Department's study last year provided a
nationwide review of conditions at our VA national cemeteries, and I am
hoping that the increase in funding for the National Cemetery
Administration will allow for some new cemeteries where they are
needed.
I have always supported the VA's efforts to do the absolute best
they can with the money they are provided. This year, however, I am
enormously concerned that the VA health care system is not currently
able to meet the needs of our veterans. We have an obligation to help
them get the care they need and deserve.
Last month, I met with Secretary Principi to discuss the VA's
enrollment cuts. Though he has had to step up to the plate to make some
hard calls, I was encouraged by his commitment to our veterans. I
believe our Department of Veterans Affairs is being run by someone who
truly has the welfare of veterans at heart.
I believe it is important that we quickly move ahead with these
nominations and give the Secretary the best help possible in tackling
the tough job ahead.
Thank you, Mr. Chairman.
__________
Prepared Statement of Hon. Jim Bunning, U.S. Senator from Kentucky
Thank you, Mr. Chairman.
I am glad this Committee is acting so quickly to fill vacant
positions at the Department of Veterans Affairs and the Court of
Appeals for Veterans Claims. When confirmed, these nominees will help
fulfill our country's commitment to our veterans and improve the
services the government provides.
General Nicholson, I met with you last week and we had a good and
frank discussion. I wish you the best in your new position, and I urge
you, as strongly as possible, to keep this Committee informed and to
always speak the truth--good or bad.
Mr. Kasold, I congratulate you on your nomination. You will hold an
honored and sacred position. I know this because one of my sons is a
Federal judge, and I know the rigors of the job. I trust that once
confirmed, you will always be mindful of the reason you were nominated,
to serve our Nation's veterans.
I wish both of you the best. Thank you, Mr. Chairman.
NOMINATIONS OF ALAN G. LANCE, SR., AND LAWRENCE B. HAGEL TO BE JUDGES,
U.S. COURT OF APPEALS FOR VETERANS CLAIMS
----------
TUESDAY, JUNE 17, 2003
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:37 p.m., in
room SR-418, Russell Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Campbell, Craig, and Crapo.
OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,
U.S. SENATOR FROM PENNSYLVANIA
Chairman Specter. Good afternoon, ladies and gentlemen.
The Veterans' Affairs Committee will now proceed with the
nominations of Mr. Alan G. Lance of Idaho and Mr. Lawrence B.
Hagel of Virginia.
We have with us two distinguished senators from Idaho, and
it is a great pleasure for me to yield to my colleague, Senator
Larry Craig, the senior Senator from Idaho.
STATEMENT OF HON. LARRY E. CRAIG,
U.S. SENATOR FROM IDAHO
Senator Craig. Mr. Chairman, thank you very much. Both
Senator Crapo and I are pleased to be before the Committee
today to introduce the Committee to Al Lance, President Bush's
nominee for the United States Court of Appeals for Veterans
Claims.
I think it is because of Al's extensive experience, both as
an Attorney General of the State of Idaho, a member of the
Idaho Legislature, and for years, a man who has worked his way
up through the ranks of veterans organizations to become a
National Commander of the American Legion, that President Bush
felt he was eminently qualified to serve in this capacity.
I can speak for Al and give him, I think, the highest
praise that any one person can give another and say that he is
my friend and I have had the privilege of working with him over
the years to know him and to trust him, to respect his
positions, both his legal positions as Attorney General of the
State of Idaho.
And then I watched him perform marvelously well on behalf
of veterans across this Nation as he served as Commander of the
American Legion.
Al and his family, and I and my wife, Suzanne, have known
each other a good number of years. I respect him highly and I
was extremely pleased that President Bush would nominate him
and very pleased, Mr. Chairman, that you now have him before
our Committee.
Al Lance will serve this Nation and the veterans of this
Nation very, very well in the capacity he has been asked to
serve in.
Thank you.
Chairman Specter. Thank you very much, Senator Craig, for
coming today and for making the recommendation.
Senator Crapo?
STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM IDAHO
Senator Crapo. Thank you very much, Mr. Chairman. I, too,
can give Al Lance my strongest recommendation and endorsement
to the Committee.
As a matter of fact, as I was walking over here from my
office, I was thinking about the time I have spent with Al
Lance. And this is one of those candidates for an office who
come here to Washington for their hearing for whom I can
honestly say I know him very well. We served in the Idaho
Legislature together. When he decided to leave the legislature
and run for Attorney General, I think I had already left and
run for Congress or it was right in the same time frame.
We worked with each other on our respective campaigns and
on behalf of many, many other candidates in Idaho for their
campaigns. He has been very extensively involved in Idaho
politics.
I am an attorney, as you know, and Al Lance as our Attorney
General has worked very closely with me on many, many issues
that have involved the State of Idaho and the Federal
Government in terms of protecting States rights and standing up
for the interests of the State of Idaho.
As Senator Craig has so well stated, Al has, throughout all
of that time, been an unequaled advocate for our veterans. I
can honestly say that, as Larry said, he is a friend, and that
the President of the United States could not have made a better
selection.
Chairman Specter. Thank you very much, Senator Crapo.
You come very, very highly recommended, Mr. Lance, and your
background is outstanding. I do not want to prejudge your
nomination before at least I have a chance to hear from you,
but it is always supportive to have both United States
senators, and especially when one of the senators, Senator
Craig, is a Member of this Committee.
It seems to me on your career path you might have chosen to
be headed to the U.S. Senate. But this nomination and
confirmation is not a detour necessarily. It may be in line.
But only time will tell. I say that only in jest. You have got
two young vigorous senators here.
Senator Crapo. We were trying to figure out which one of us
you were suggesting he knock off.
Chairman Specter. I saw that contemplation, Senator Crapo.
I know the feeling exactly, and that is why I detoured on my
line of diversion.
I have a strong suspicion that Senator Craig and Senator
Crapo have other duties this afternoon, other things they have
to attend to. So they do not need me to tell them they are free
to leave. Neither is under subpoena to be here.
Senator Craig. I am going to change seats and listen to Mr.
Lance's testimony.
Chairman Specter. I have deferred my comments until we
heard from two introducing senators because my responsibilities
require me to stay, but at least Senator Crapo is moving onto
other duties.
I welcome both Mr. Lance and Mr. Hagel to this hearing. Let
me begin by asking you, Mr. Lance, to introduce any members of
your family who are present.
Mr. Lance. Thank you, Mr. Chairman, and thank you for the
opportunity. My wife of 34 years, originally from Sioux Falls,
South Dakota, Sherrie. Our daughter, Lisa, who graduated from
Willamette Law School, is a member of the Idaho Bar, and works
for the Department of the Interior as an attorney. Lisa is a
lawyer and works for them there. And recently, Mr. Chairman,
last month, she presented us with the newest member of our
family, my son-in-law, Brian Rund. Brian is a fine young man
who is finishing his master's program here at American
University in Washington, DC. Brian and Lisa live in Arlington,
Virginia.
Our oldest son, Mr. Chairman, Alan Jr., lives in Las Vegas,
Nevada. He is not with us as a result of his conflicting
schedules.
And last, but certainly not least, our youngest son, Luke
who lives in Sacramento, California, and attends American River
College as a business student. And when not engaged in his
studies, he is a staff member for the Department of Justice
Litigation Division of the Office of the Attorney General of
California.
Thank you, Mr. Chairman.
Chairman Specter. Thank you.
Mr. Hagel, would you care to introduce any members of your
family who may be present?
STATEMENT OF HON. LAWRENCE B. HAGEL, NOMINEE TO BE JUDGE, U.S.
COURT OF APPEALS FOR VETERANS CLAIMS
Mr. Hagel. Thank you, Senator.
Accompanying me today is my wife, Virginia, of 30 years and
my daughter, Jennifer, who has traveled here today from
Chicago, where she is a member of the national touring company
of the Second City Theatre.
My son, Jack, who has also traveled here from Rhode Island
He is a reporter with the Associated Press.
My son, Joseph, is also here. Joseph just graduated from
high school in Fairfax, Virginia, and is headed next year on a
fellowship, under the auspices of the Rotary Club, to study in
Argentina for a year.
My brother, Randy, is here with his family, his wife Donna
and their two children, Laura and John.
I also have a number of colleagues from the Paralyzed
Veterans of America here with me. And good friends.
[The prepared statement of Mr. Hagel follows:]
Prepared Statement of Lawrence B. Hagel, Nominee to be Judge,
U.S. Court of Appeals for Veterans Claims
Mr. Chairman, thank you, and the Members of this Committee for
convening to consider my nomination to what I believe is an extremely
important position in our government.
The U.S. Court of Appeals for Veterans Claims first came to my
attention in 1989 while I was serving on active duty as a Marine Corps
Judge Advocate. News of the Court, then called the U.S. Court of
Veterans Appeals, came by way of an article in a legal publication
announcing the passage of the Veterans' Judicial Review Act.
Reading the article, I was struck with the significance of this
event and of its potential impact on the administration of veterans
benefits determinations. As I reflected on the newly enacted statute
and gathered more information on the administration of the veterans
benefits system, I came to realize that my background as a lawyer
combined with my years of military service might be put to best use
advocating for veterans before this new court. This course particularly
appealed to me because, during my years in the Marines, I had witnessed
so many exceptional examples of sacrifice and of selfless service to
our country by young Americans. There appeared to be few career choices
better than helping these veterans to obtain benefits earned by their
dedicated service to America. Consequently, I set out to seek such a
position, eventually leaving the Marine Corps to accept a position as
counsel with the Paralyzed Veterans of America, joining PVA in January
1990.
From this vantage point I have appeared before the Court on behalf
of veterans and Veterans Service Organizations, served on the Court's
Rules Advisory Committee and participated in its judicial conferences.
But most importantly, I have seen firsthand the impact of the Court on
the lives of individual veterans and on the system of benefits designed
to serve them. In short, over the past thirteen and one-half years, I
have developed a deep appreciation for the significance of the Court's
work. I do not take lightly the responsibility of the position for
which I have been nominated.
This Nation has provided veterans of its armed services with a wide
range of benefits. Additionally, Congress has enacted a number of
procedural safeguards governing the adjudication of applications for
those benefits. In simple terms, the Court's job, as an independent
reviewer of agency action, is to ensure, within its assigned scope of
review, that the laws enacted by Congress are followed. In the process,
each veteran, whether prevailing before the court or not, must be
treated fairly and with dignity. If confirmed and appointed, I pledge
my best efforts to accomplish this.
In considering my qualifications for this position, I ask the
Committee to be cognizant not only of my service to veterans and
Veterans Service Organizations, but also of my significant involvement
in other legal issues, including representing the United States in a
number of capacities. This experience, which involved appearing on
behalf of the government in both criminal and civil matters and
advising government officials regarding legal responsibilities, is
approximately equal in time to that spent representing veterans. My
work as a government counsel will, I believe, help me to have a
balanced perspective on the legal issues faced by the Court.
In closing, I want to thank the Committee for the opportunity to
present this statement, and would be happy to answer any questions the
Members of the Committee may have.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Response to Written Questions Submitted to Lawrence B. Hagel,
Nominee to be Judge, U.S. Court of Appeals for Veterans Claims
Question 1. The issue of statutory construction and the so-called
``plain meaning'' rule, has been pivotal in many critical cases before
the U.S. Court of Appeals for Veterans Claims.
A. Would you hesitate to reverse or remand a decision by the
Department of Veterans Affairs (VA) that is consistent with long-
standing VA practice--but is contrary to your best reading of the
express words of a statute?
Response. No. The age of a VA practice, or regulation for that
matter, is not the test of its validity. This is especially true since
the practices and regulations of VA until 1988 were not generally
subject to judicial review. If, however, the language of the statute
was unclear or subject to more than one reasonable interpretation,
consideration of such matters as legislative history and consistent
agency interpretation would be proper.
B. Would your judgment on such a question be influenced by your
conception of the ``common sense'' of the VA's historical
interpretation?
Response. If the VA interpretation conflicted with the plain
language of the statute, its ``common sense'' would not be a basis for
upholding the VA interpretation.
C. How about your sense of what is the preferable or most logical
policy?
Response. No. In my view it is not the place of the Court to
determine what is good policy. Establishment of policy is the
responsibility of Congress and VA when VA is acting within the limits
of its authority to implement laws passed by Congress.
D. Would the potential cost of overturning a historical--but,
arguably, erroneous--statutory interpretation enter into your
decisionmaking in such a case?
Response. The cost that VA may incur is not a proper element of
making a decision regarding the validity of a particular policy or
regulation.
Question 2. The Committee receives extensive mail expressing a
common theme: justice delayed is justice denied, and it does a veteran
limited practical good to prevail on a claim if it takes years of
decisions, appeals, and remands to ultimately prevail.
A. Do you think it takes too long for a claim to work its way
through the administrative and judicial review process?
Response. At least for certain cases, yes. I believe there is
unanimity in both the veterans and VA communities on the response to
this question. The Secretary has expressed his personal concern
regarding this issue, and the Veterans Service Organizations have
expressed this concern to Congress for some time. It is, however,
important that the claim be adjudicated correctly. Consequently a focus
on speeding up the adjudication process must not be achieved by unduly
sacrificing the quality of the decision or important statutory rights
of the claimant.
B. If so, do you have any proposed remedies the Committee might
consider to speed up the process?
Response. Finding the appropriate balance between speed and quality
is at best a difficult task. I do not believe there is any single
solution to resolve this problem, which involves the quality of the
initial agency decision, the handling of remanded decisions, and the
structure and authority of the appellate agencies.
Several individuals and organizations (including VA), have offered
remedies, some of which are highly controversial. Properly constructed
and evaluated demonstration projects designed to test the effect that
some of these suggestions have on the speed and accuracy of claims
processing may provide sufficient empirical data upon which to base
appropriate legislation or changes in practice and to convince these
important critics of the value of change.
C. Do you know the extent of the authority of a judge in the U.S.
Court of Appeals for Veterans Claims to, sua sponte, craft a remedy in
a given case?
Response. The jurisdiction and scope of review of the Court are
proscribed by the enabling legislation. For matters that the statute
reserves to the Secretary, those cases must be remanded for the
Secretary to exercise his judgment. Subject to the judicial policy
against issuing advisory opinions, I do believe, however, it is helpful
for the Court to answer completely where possible the legal questions
presented to it.
D. In what sorts of cases, if any, can that Court directly award,
e.g., compensation to veteran-claimants?
Response. There are very few cases where the Court can award
benefits directly to the veteran. In order for the Court to do so the
law would have to clearly dictate the right to a benefit and the
evidence in the case would need to be fully developed. There are some
cases, however, where Court rulings guarantee that the veteran will
ultimately receive some benefit. I can think of at least two
possibilities. One is a direct finding that a particular disability is
service connected. The second would be a situation where the denial of
benefits turned solely on the application of a regulation that the
Court found to be contrary to law, e.g., Gardner v. Derwinski. While
these findings will ultimately result in benefits, the individual case
would still have to be remanded to the VA to adjudicate the level of
disability and the amount of retroactive benefits due.
E. Should the Court have that authority?
Response. In general, I do not believe that the Court is in the
best position to determine the level of disability or to calculate the
precise value of an award of a particular benefit to a veteran.
Consequently, when entitlement has been established as discussed in the
previous answer, the implementation of that decision in a particular
case lies within the expertise of the Secretary, subject to the
appellate process.
F. When must the Court remand a case and allow VA to craft the
appropriate remedy?
Response. When proper adjudication of the case requires action
committed by statute to the Secretary.
G. Do you agree with these rules?
Response. Yes, in general. But I do believe the Court should do
what it can in its decisionmaking to reduce the possibility that the
case will return to the BVA or the Court on a subsequent appeal.
H. What do you think the rules governing such matters should be?
Response. If the Court is truly to be viewed as an appellate court,
I believe the rules as they exist are appropriate. If Congress wanted
to expand the ability of the Court to make more decisions that would
result in the direct award of benefits by the Court, it would need to
change the standard of review to permit de novo review of factual
matters. I do not particularly favor this.
Question 3. As the General Counsel of Paralyzed Veterans of America
(PVA), you've served with and supervised other attorneys, some of whom
will presumably appear before you if you are confirmed.
A. Do you think their clients might be perceived as having an
unfair advantage?
Response. It is not possible for me to know the perceptions of
others. If confirmed, it would be my responsibility to judge each case
on its own merits applying the appropriate law to reach a decision.
This is what I intend to do. In time, those interested will review the
decisions of which I have been a part and hopefully judge that I have
been true to this aspiration.
B. Would the fact that a PVA staff member is serving as counsel to
a claimant be cause for recusal?
Response. No, that fact alone would not be sufficient cause for
recusal.
Question 4. Since 1992, you have been a member of the Rules
Advisory Committee of the Court of Appeals for Veterans Claims.
A. Please describe the work you've done on the Committee.
Response. My term with the Committee ended on June 30, 2003. Over
the eleven years I served on the Committee, I offered suggestions
regarding rule changes, considered and debated rule changes offered by
others, performed research for consideration by the Committee members
regarding proposed rule changes and drafted proposed final language of
proposed rule changes adopted by the Committee.
B. Please describe changes in the Rules of Practice that have been
made since you've been a member of the Committee.
Response. It is difficult to recall, in absolute detail, all of the
rule changes that have taken place during my eleven years as a member
of the Committee. However, some of those changes involved:
Introduction of the concept of limited appearance to
enable representatives to evaluate cases for representation.
Permitting the filing of various papers by facsimile.
Time limits for filing various papers with the Court.
Changes to the form of papers and expansion of the minimum
length of briefs to be filed with the Court.
Standards for granting extensions of time to file required
documents with the Court.
Rules evidencing date of mailing of documents to the
Court.
Simplification of language to accommodate pro se
appellants.
Citation rules regarding single judge opinions and other
nonprecedential authority.
The design and requirements of various forms included in
the appendix to the rules.
C. Has the Court been responsive to the recommendations of the
Rules Advisory Committee?
Response. Rule changes suggested by the Committee are reviewed and
discussed by the Board of Judges. While the Committee is not privy to
those discussions, the Court has adopted a number of the changes
recommended by the Committee. This causes me to believe that the Court
gives serious consideration to Committee recommendations.
Question 5. In one of your responses to the Committee's
Questionnaire for Presidential Nominees, you answered that you
currently receive monthly disability compensation from VA for a
service-connected disability, and that your mother receives Dependency
and Indemnity Compensation from VA as a result of your father's death
on active duty. I do not want to inquire into the personal details of
either your claim or your mother's. But I am interested in learning
whether you or your mother were forced to gain unwanted personal
experience in the appellate mechanisms of the claims adjudication
process.
A. Did you or your mother have to appeal a VA Regional Office
denial of your claims?
Response. No.
B. How far up the appellate ladder did you or your mother have to
go, if at all, before your claims were satisfactorily resolved?
Response. No appeal was filed in either case.
C. What lessons, if any, did you take from that experience to your
work as a veterans' advocate?
Response. Both my mother and I were represented by non-lawyer
service officers of Veterans Service Organizations. In addition, I
represented my mother in one particular part of her claim. My
experience in both situations has led me to believe that a veteran is
best served to have some knowledgeable representative assist in the
prosecution of the claim at the agency of original jurisdiction.
D. What lessons would you take to your work on the bench?
Response. Having experienced the claims process as a claimant and
as a representative, if confirmed, I believe I would have an
appreciation for obstacles facing claimants unfamiliar with VA as well
as the complexities faced by VA adjudicators.
Question 6. In your article, ``Five Years Under the Veterans'
Judicial Review Act: The VA is Brought Kicking and Screaming Into the
World of Meaningful Due Process,'' 46 Maine Law Review 43 (1994), you
wrote there is a need for more trained advocates who were knowledgeable
in the law of veterans' benefits.
A. Is a lack of properly trained advocates still a problem today?
If so, how can it be addressed?
Response. This remark referred to the high pro se rate the Court
was experiencing at the time the article was crafted and the limited
availability of properly trained or resourced advocates to represent
the interests of veterans before the Court. Since 1994, the Veterans
Consortium Pro Bono Program and the National Organization of Veterans
Advocates have made great strides in increasing the number of advocates
qualified to represent veterans. The Veterans Consortium alone, with
the strong support of four Veterans Service Organizations, has trained
over 1,700 lawyers licensed in 49 states, the District of Columbia and
the Commonwealth of Puerto Rico. While the initial pro se rate remains
high, a much greater number of veterans whose cases merit it are now
afforded representation than at the time of this article.
For the reasons described in the referenced article, adequate
representation of veterans remains an important issue and warrants
constant monitoring.
B. What is the Court's role in addressing that problem?
Response. By its active role in the creation of the Veterans Pro
Bono Program and its strong continued support, the Court has taken
steps to address this issue. The Court should continue to be sensitive
to this issue and should be alert to ensure that significant
precedential decisions are not issued without the benefit of full
representation on both sides of the issue.
Chairman Specter. Thank you very much, Mr. Hagel. If you
two gentlemen would stand for the administration of the oath.
[Witnesses sworn.]
Chairman Specter. You may be seated.
Mr. Lance, do you care to make an opening statement?
STATEMENT OF ALAN G. LANCE, SR., NOMINEE TO BE JUDGE, U.S.
COURT OF APPEALS FOR VETERANS CLAIMS
Mr. Lance. Mr. Chairman and Members of the Committee, let
me thank you for having this hearing.
Let me extend my thanks as well to Mr. Tuerk and the staff
members for their assistance during the last few weeks in
getting prepared for this hearing today.
In addition, I would like to thank our Congressional
delegation, Senator Craig, Senator Crapo, Mike Simpson, and
Congressman Butch Otter, for their continuing support, along
with our Governor Dirk Kempthorne, who is a former colleague of
yours.
In addition, my thanks to Thorpe Orton and Janet Carter and
Attorney General Lawrence Wasden of the Office of the Attorney
General of the State of Idaho, for assisting me in locating
certain documents and providing them to the Committee.
Let me also thank, Mr. Chairman, my former colleagues, the
Attorneys General of the United States, all of whom have
endorsed me for this position, with special thanks going to
Attorney General Mike Fisher of Pennsylvania and former
Attorney General Bob Butterworth of Florida for coauthoring the
letter of endorsement and representation.
Mr. Chairman, my ambition and my livelihood for the last 30
years has been devoted to the law as a means of making a
living. For the last quarter of a century my passion has been
serving veterans and I would like to continue to do so.
Thank you.
[The prepared statement of Mr. Lance follows:]
Prepared Statement of Alan G. Lance, Sr., Nominee to be Judge,
U.S. Court of Appeals for Veterans Claims
I want to thank Chairman Specter, Senator Graham, and the Committee
for holding this hearing today to consider my nomination to serve as a
judge on the United States Court of Appeals for Veterans Claims. It is
an honor to appear before you.
For more than 30 years, I have been dedicated to the Armed Forces
of the United States and the brave men and women who served our
country. During my career, I have been a soldier, an attorney, a
veterans' advocate, and a political leader. I am committed to the
issues that are important to our Nation's veterans. Promises were made
to them in return for their service, and I have fought to make certain
those promises are kept within the parameters of the law.
After graduating from South Dakota State University as an Army
Scholarship recipient, Distinguished Military Student and Distinguished
Military Graduate, I was commissioned in the Regular Army in June 1971.
I attended the University of Toledo School of Law, where I was member
of the Law Review. I graduated in December 1973 and was admitted to the
Ohio Bar on April 27, 1974. I then matriculated from Judge Advocate
General's School at the University of Virginia in 1974. My assignments
included: Command Claims Officer, 1974-75; Defense Counsel, 172nd
Infantry Brigade, Ft. Richardson, AK, 1974-77; Chief of Criminal
Defense, 172nd Infantry Brigade, Ft. Richardson, AK, 1975-76; Military
Magistrate, 172nd Infantry Brigade, Ft. Richardson, 1975-76;
Prosecutor, Federal District Court of Alaska, Anchorage, AK, 1976-77;
Command Judge Advocate, Corpus Christi Army Depot, Corpus Christi, TX
1977-78. Prior to my honorable discharge as a Captain in 1978, I was
honored to receive a National Defense Service Ribbon and the Army
Commendation Medal.
I became active and involved in veterans issues shortly after
discharge. After moving my family to Meridian, Idaho in 1978, I joined
American Legion Post 113, where I served as Post Commander on four
separate occasions. My involvement with the American Legion included
several positions at the local, state, and national levels, including:
Department of Idaho State Judge Advocate, 1981-88; Department of Idaho
State Commander, 1988-89; Ex-Officio member of the National POW/MIA
Committee, 1996-1999; Alternate National Executive Committeeman, 1992-
94; National Executive Committeeman, 1994-96; Chairman, National
Foreign Relations Commission 1996-97; National Legislative Consultant,
1998-99; Chairman, National Advisory Committee, 2000.
My fellow American Legion members elected me to serve as the
National Commander of the American Legion for 1999-2000. The American
Legion provides representation to over one-fifth of the veterans who
make claims for benefits with the Department of Veterans Affairs and
Board of Veterans' Appeals. My long service in the American Legion has
provided me with a detailed background and familiarity with the issues
that are so important to our veterans, and that routinely are raised in
cases before the United States Court of Appeals for Veterans Claims.
I have also enjoyed a long and varied career as a practicing
attorney. I operated a private law firm in Meridian, Idaho from 1978-
94. Meridian was a growing, but small, community during that time
period, and my law practice encompassed a variety of areas. I also
stayed active in community, serving as President of the Meridian
Chamber of Commerce and forming a new Rotary Club chapter.
I also became active in state politics. In 1990, I was elected to
serve as a member of the Idaho House of Representatives. After one term
in the House, my colleagues elected me to serve as the House Majority
Caucus Chairman. I served in the Idaho House of Representatives for two
terms, from 1991-94, with assignments on the Committees on State
Affairs, Judiciary, Rules and Administration, Transportation and
Defense, and Ways and Means.
In 1994, I was elected to serve as Idaho's Attorney General. The
Attorney General is a member of the executive branch and is the chief
legal officer of the State. The Attorney General is also assigned the
constitutional duty of managing the State's endowment lands as a member
of the State Board of Land Commissioners. I was also active in the
National Association of Attorneys General, serving on the Executive
Committee, and I was also elected to serve as the Chairman of the
Conference of Western Attorneys General from 1999-2000. I am honored to
have received the recommendation of all of my fellow Attorneys General
for this nomination. The people of Idaho reelected me to serve as their
Attorney General in 1998, and earlier this year, I left office as the
longest serving Attorney General in Idaho history.
One of my accomplishments as Attorney General involved resolution
of a lawsuit that the State of Idaho filed against the United States
Department of Veterans Affairs (VA). The lawsuit involved a proposed
reduction of benefits to the residents of the State Veterans' Home in
Lewiston, Idaho. The VA eventually recognized its error and the matter
was resolved in favor of the State. This lawsuit benefited veterans and
State Veterans' Homes across the country.
The reason I seek your confirmation of my nomination to serve as a
judge on the United States Court of Appeals for Veterans Claims is
because I am committed to serving those who served in our Armed Forces.
This court was created in 1988 to deal with veterans' issues involving
disability and survivor benefits, education benefits, life insurance,
home loan foreclosures, and waivers of indebtedness. This Committee
certainly knows how important these issues are to the men and women who
served, and you are also, no doubt, aware that the caseload of this
court has almost doubled over the last 10 years. It is vitally
important that this court be fully staffed so that these issues are
resolved in a timely and regular fashion. As an attorney committed to
the rule of law and quite familiar with interpreting legislation and
legislative intent, and as a long-time veterans advocate, I will be
dedicated to the mission of this court so that claims are resolved in a
legal, fair, and uniform manner.
I also recognize that a judge on this court must understand the
relationship between the Secretary of Veterans Affairs, the Board of
Veterans' Appeals, the Court of Appeals for Veterans Claims, the Court
of Appeals for the Federal Circuit, and the Supreme Court of the United
States. When cases are remanded, the directives must be followed. Each
of these entities plays a vital role in the uniform body of veterans'
benefits law, and all of them must work together in order to resolve
cases in a timely and reliable manner.
In conclusion, I want to once again thank Chairman Specter, Senator
Graham, and this Committee for holding this hearing. My service in the
United States Army led me to become an active member of the American
Legion for over 25 years. I believe my record of service and commitment
to our veterans and the issues that are important to them will serve me
well if I am confirmed to this court. More importantly, I believe my
record will be a benefit to the constituents of this court and the
entities that Congress has created and assigned duties to implement our
veterans' benefits laws. I thank you and ask for your favorable
consideration of my nomination to the United States Court of Appeals
for Veterans Claims.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Specter. Thank you very much, Mr. Lance.
In your resume there is a notation of your service as
National Commander of the American Legion which is a very
important position. In that role, you obviously have had the
obligation as an advocate for veterans interests. When you
serve in a judicial capacity you are the arbiter, the umpire.
Would you comment on your approach to that role and the
difference which you see with the assurances that you can
provide to this Committee that you will be able to shed your
role, so to speak, of advocate to be an impartial arbiter?
Mr. Lance. Thank you, Mr. Chairman, I will.
Mr. Chairman, I think that those who represent the American
Legion who are here today can vouch for the fact that I will be
fair and impartial. The obligation of a judge of this court is
to the Congress of the United States, as well as to the
taxpayer, as well as to the executive branch and the Secretary.
I would intend to fulfill that obligation in trying to service
veterans and to provide them justice in their claims.
If anything, Mr. Chairman, I might hold the American Legion
advocates, who account for about 21 percent of the cases before
the Board of Veterans' Appeals, to a higher standard than the
other colleagues.
I would assure you, Mr. Chairman, and others, that I would
fulfill my oath in office to be fair and impartial irrespective
of whether or not the veteran were represented by private
council or one of the VSOs.
Chairman Specter. Mr. Hagel, I think it most expeditious,
since there are overlapping questions, to deal with the
nominations jointly.
And you, like Mr. Lance, have had an advocacy role as
General Counsel for the Paralyzed Veterans of America. What
assurances can you provide that in your new judicial role you
will be able to exercise the imperatives of the different
perspective?
Mr. Hagel. Thank you, Senator. In addition to the almost 14
years that I served in the General Counsel's Office, both as
Deputy General Counsel and General Counsel of the Paralyzed
Veterans of America, I have indeed represented veterans and
their interests and I am proud of that.
But almost for an equal amount of time, as the information
I submitted to the Committee notes, I have represented the
interest of the Government in various capacities. I understand
the issues on both sides of the fence, if you would.
The responsibility of a judge is to know the law, to read
the law, to apply the law to the facts of the particular case.
That is what I would intend to do if I were confirmed by the
Senate.
Chairman Specter. Mr. Hagel, let me begin with you on the
next general question, and that is with respect to the
deference, if any, that an appellant tribunal should give to an
executive branch agency's findings of fact in deciding claims
for benefits from that agency. Is there any difference in
deference which you would give to an Article 1 court,
contrasted with the deference to an Article 3 court?
Mr. Hagel. No, Senator, I don't think there would be any
appreciable difference in fact-finding. I think the statute is
clear that the court must review findings of fact made by, in
this case, the Board of Veterans' Appeals, under a clearly
erroneous standard and that is what I would apply.
Chairman Specter. Mr. Lance, with all of your extensive
experience, do you place any credence in the complaint that is
heard from time to time about Article 1 courts serving a little
too closely to the branch that they are a court of, contrasted
with the life tenure which is accorded to Article 3 judges? Is
there anything to it that there is a little partiality, a
little administrative control sometimes that creeps into the
Article 1 courts?
Mr. Lance. Mr. Chairman, thank you.
No, not in my opinion. The criticism is made, the Chairman
is correct, you hear that criticism periodically. But in
reviewing the cases that at least I have reviewed of the U.S.
Court of Appeals for Veterans Claims, it is clear to me that
they do their level best to apply the law, are not as closely
affiliated to the VA or the BVA, as some would suggest that
they are, in terms of applying the law fairly and uniformly and
executing and exercising those mandates as provided by
Congress.
So in response, Mr. Chairman, no, I do not give any
credence to that complaint.
Chairman Specter. There are many more questions which I
have, but I have taken some time, now let me yield to my
distinguished colleague, Senator Campbell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL,
U.S. SENATOR FROM COLORADO
Senator Campbell. Thank you, Mr. Chairman.
First, let me say that I have read the backgrounds on both
our nominees. They are very highly respected, well qualified,
fine families and they have done a great job in the jobs they
have already finished before they came here.
And I would think that because of that strong support and
no real vocal opposition that they would not have any problem
at all getting through the process. I am sorry to say, however,
we have seen other nominees, at least one, to the same court
being held up, as you know, Mr. Chairman. I am sorry that it
has become sort of a partisan issue, a lot of our nominees that
are being held up, as you probably know.
I just would hope you do not get discouraged. This is not
an easy process. And when you have 100 senators, about a third
of whom are running for president themselves, and all of the
rest of them are a bunch of flaming eagles, too, it is very
difficult to get anything through.
I just would hope that you are in it for the long run and
you do not get discouraged and go home. And I hope your
families will stick it out with you, too.
Thank you, Mr. Chairman. I have no questions.
Chairman Specter. Thank you very much, Senator Campbell.
The Court of Veterans Appeals allows non-statutory
practitioners to appear and argue cases for claimants. When I
first joined the Judiciary Committee, Senator Strom Thurmond
was the Chairman. And at one of the first hearings, he asked
two nominees from Pennsylvania if they promised to be
courteous. And that is translated into do you promise to be
courteous.
And I thought to myself that really was not a very erudite
or piercing question because what could the nominee do but say
yes. The nominees, Judge Caldwell and Judge Mannesmann,
appeared that day, this was 1982.
And then Senator Thurmond said, ``The more power a person
has the more courteous a person should be.'' Translated the
more power a person has, the more courteous the person should
be.
And having practiced law for some time, I have noted the
tremendous authority of the black robe. Having learned a good
deal from Senator Thurmond, that being one of the items,
whenever I am at a confirmation hearing I ask the question. But
I think that is something which I will not ask you if you
promise to be courteous because I know the answer.
I think that is something which ought to be in your mind at
all times. It is very, very easy to be out of sorts and the
power is just overwhelming. People like Senator Campbell and
Senator Craig and Senator Crapo and I have to, at least
sometimes, be deferential to voters. But judges who have either
fixed terms, 15 years or life, have great temptation to be a
little less than courteous.
And many, many people who have been confirmed years after
the fact have said, ``I remember when you mentioned to be
courteous and I just want you to know I have been courteous.''
I consider no attribute of a judge more important than being
courteous.
And you might be tested when you have some of these non-
attorney practitioners appear before you or people who appear
pro se before you, that is representing themselves. And you
also might be tempted when some lawyers appear before you,
because there have been known occurrences where lawyers are not
too relevant or responsive or professional in their approach.
So I would ask you to make a comment about what special
consideration you would give to the non-attorney practitioners
or the pro se litigants who appear before you.
Mr. Lance?
Mr. Lance. Thank you, Mr. Chairman.
I think it is correctly pointed by the Chairman that this
court, given the number of pro se litigants, I believe 52
percent of all cases before the court start out pro se and that
number dwindles back down to 35 percent.
But it is very difficult, as the Chairman is aware, to deal
with advocates who are advocating their own case and to have to
tell them in a polite, courteous, and professional manner that,
in fact, maybe their cause of action is not as strong as they
perceive it to be.
I believe that I can do that, Mr. Chairman. In my capacity
as National Commander, of course, I came under the same types
of conditions and circumstances as the Chairman has described.
I will promise you, Mr. Chairman, and all the veterans in this
room and the veterans throughout the United States that I will
be courteous.
Chairman Specter. Are you going to give a similar answer,
Mr. Hagel?
Mr. Hagel. Yes, Senator.
Chairman Specter. OK, gentlemen.
Senator Campbell. There is a moral in that story, Mr.
Chairman.
Chairman Specter. Bear it in mind.
Mr. Lance, in response to the Committee's supplemental
questionnaire, you identified two organizations that you had
been a member of, the Sons of the American Legion and the Forty
` Eight Society. Are these organizations open only to men?
Mr. Lance. Mr. Chairman, the Sons of the American Legion, I
think the name speaks for itself. Yes, sir, that is a male
organization. Where a person has had a father or a grandfather
who is a member of the American Legion.
The Forty ` Eight, unfortunately, is indeed, as we speak,
Mr. Chairman, still restricted to males. The American Legion
has been attempting to convince the Forty ` Eight over the last
several years that that policy is no longer applicable in
today's society.
As National Commander of the American Legion, I wrote them
a letter and suggested that they needed to come in conformance
with the 21st century. Unfortunately, to date, that has not
happened and I am no longer a member of that organization.
Chairman Specter. Did you terminate your membership because
of the practice that you concluded was discriminatory?
Mr. Lance. That was one of the reasons, yes, sir.
Chairman Specter. Were there other reasons?
Mr. Lance. Their inability to address the problem in a
businesslike and professional manner.
Chairman Specter. But that turned on the discrimination
issue as well?
Mr. Lance. Yes, sir.
Chairman Specter. How do you distinguish your reaction
there from your reaction to the Sons of the American Legion
which, as you accurately stated, speaks for itself, covering
only men.
Mr. Lance. There, sir, the Sons of the American Legion has
been organized. We have a very vibrant American Legion
Auxiliary consisting of 2 million members and we have the
Juniors Auxiliary, that is for the females, the counterpart or
the distaff, if you will, for those interested in Legion
activities and Legion work.
Chairman Specter. Mr. Hagel, in response to one of the
questions, you stated that you represented a claimant in a case
captioned Thielman vs. Derwinski, and during the consideration
of that case by the Board of Veterans' Appeals you filed a
motion with a request that certain members be disqualified
after information surfaced which suggested that, on
reconsideration, those members might not be impartial.
Are any of the individuals you sought to have disqualified
still members of the BVA?
Mr. Hagel. I do not know the answer--I know that at least
one of the individuals is not, Senator. I do not know, I would
like to go back to look at the files of the case and the roster
of the BVA to determine that.
Chairman Specter. If there are members still sitting from
the BVA, would that influence you in any way on matters which
come before you in a confirmed capacity?
Mr. Hagel. I would only say that I would look at each case
as it came before me and judge it based upon the facts that
were before me. I would not allow facts that I knew from other
cases to influence my decision in a particular case.
Chairman Specter. Mr. Lance, in your response to the
Committee questionnaire, you listed as one of your significant
legal activities is your involvement in the revision of the
search and seizure provisions of the Idaho code. What revisions
were incorporated on that activity of yours?
Mr. Lance. Mr. Chairman, I believe it was last legislative
session or two legislative sessions ago, working with our
legislature, we brought the search and seizure provisions of
the Idaho law up to the Federal standards.
Chairman Specter. Did you have to do that? You were bound
by them anyway.
Mr. Lance. In Federal District Court, yes, sir. But in
State Court, we had an old code that went back to the 1970s.
Chairman Specter. 1970s?
Mr. Lance. Yes, sir.
Chairman Specter. Was that an ancient time?
Mr. Lance. Sir, it was before cell phones. Our law,
strictly construed, would indicate that a district judge in the
State of Idaho, who wished to issue a phone tap order had to
issue it for that telephone sitting on that desk and not the
roving situs cell phone. So we brought it up into the 21st
century. It complies, to a great extent, to the Federal law
that does exist.
Chairman Specter. Were there Federal Court judicial
decisions dealing with cell phones prior to that revision?
Mr. Lance. In the Federal system, sir, yes. The State
judges, however, were somewhat impaired as a result of our
reading of Idaho law.
Chairman Specter. So, it existed for the Federal system but
not for the State system and the point of the revision in the
code was to give guidance to the State Court judges which would
be applicable without going through the interpretation process?
Mr. Lance. That is correct sir, in State Court.
Chairman Specter. That is a long and complicated history.
For so many years States were not bound by search and seizure
rules. And they came into the 19th century in Mapp vs. Ohio in
1961. I was an Assistant DA at the time. And one of the first
cases that came into the criminal court, one of the elderly
judges listened to the motion to suppress and said, ``Motion
denied, this is not Ohio.''
I argued a case as an Assistant DA, a case called
Commonwealth vs. Richardson. The defendant's lawyer was making
the point that the search and seizure was unreasonable and the
president, Judge Chester Rhodes of the Superior Court, kept
saying but they found the glass from the jewelry store in his
cuff links. And the lawyer tried to make the point that it had
to be tested by probable cause in advance of the search and it
was totally incomprehensible to the judge.
But a lot has happened since that time and I commend you
for your work on the code. That is, I think I commend you for
your work on the code. I have not read it.
Mr. Lance. It is a good piece of work, sir.
Chairman Specter. Mr. Hagel, in your article Five Years
Under the Veterans Judicial Review Act, the VA is brought
kicking and screaming into the world of meaningful due process.
You stated the value of the Court of Appeals for Veterans
Claims would depend on the court's ability to maintain its
independence. Did you have some reason to believe that prior to
the wisdom in that Law Review article, the court had not
established its independence?
Mr. Hagel. Senator, I think that at the time that article
was written, I believe, on approximately the fifth year
anniversary of the court. And at that time, my coauthor and
myself believed that it was important to remind those readers
that it was a danger that any Article 1 court should always
guard against.
Chairman Specter. A little too much influence from the
agency that it sat in judgment on?
Mr. Hagel. That is correct.
Chairman Specter. That is the question I asked Mr. Lance
earlier. He said it was all copacetic. Some disagreement with
your soon-to-be colleague on the court, if confirmed?
Mr. Hagel. I do not have any disagreement. I think in
answering your question what I was trying to say is that, it is
extremely important that being an Article 1 court and
constantly dealing with the same agency, constantly having the
same litigants before the court, it is important that it
ensures that it maintains its independence because the
criticism can easily be made that it is not independent. And it
is something that the court should always guard against.
Chairman Specter. That certainly is a critical factor. That
is the overreach, and the great beauty of the American judicial
system is the independence. Some think that the Congress is
unduly influenced by being reelected and that the executive
branch is unduly influenced by being reelected. But there is a
quality of independence that the judicial branch has which is
superb.
The Constitution does not establish the courts as supreme,
but the courts took care of that earlier in Marbury vs. Madison
in 1803. And now major issues of national and international
importance are decided by one judge on five to four decisions.
So the independence is really very, very important.
However, there are pitfalls in writing Law Review articles.
We had a confirmation hearing--one where more war story, a
short one.
We had a confirmation hearing on Chief Justice Rehnquist.
He was asked a lot of questions about court stripping. Does the
Congress have the authority to take away the jurisdiction of
the court on First Amendment issues? And he would not answer
the question.
Overnight one of the staffs found an article which William
H. Rehnquist had written in the Harvard Law Record back in
about 1960 or 1958. In that article he criticized the Judiciary
Committee for asking softball questions to Justice Whittaker,
whose main achievement was that he represented two States, he
lived in Kansas and practiced law in the Missouri or vice
versa.
The author, William H. Rehnquist, suggested that there
ought to have been some more directed questions.
So being armed with that article, I went back to the
question the next day, does the Congress have the authority to
take away the jurisdiction of the Federal courts on First
Amendment issues? He still hesitated, and I produced the
article and said there was a William H. Rehnquist who wrote
this article. He answered a question with a question and said,
``Did I say that?''
And I said, ``I do not know whether you said it or not, but
that is what the book says you said.'' And he said , ``Well, if
I did, I was wrong.'' And then he answered the question. He
said that Congress did not have the authority to strip the
Federal courts of jurisdiction on First Amendment questions.
So then, as you might suspect, I asked him does the
Congress have the authority to strip the court of Fourth
Amendment issues? And he refused to answer that, as he did the
Fifth Amendment, Sixth, Seventh and Eighth.
I said why answer as to the First and not as to the Fourth,
Fifth, Sixth, Seventh, and Eighth. He would not answer that
question either.
He was confirmed 65 to 33, and it was touch and go, leading
to what many of us concluded was that nominees answer just as
many questions as they think they have to be confirmed.
But I think, you gentlemen, have answered more questions
than you have to to be confirmed. The principal purpose, or a
principal purpose of these hearings is to get an idea as to how
you will respond, your demeanor, how you handle questions, how
you reason. There are a number of other questions which we are
going ask you for the record which will be propounded, which we
would like you to return in writing.
We would like to take much more time, but we have taken a
fair amount of time in today's hearing. We have the Medicare
Reform bill on the floor and it is a very, very busy calendar.
We are taking up the issue of asbestos reform the day after
tomorrow and there is a tremendous amount of preparation
necessary.
So we are going to conclude the hearing at this point. We
thank you for coming in. I do not like to make firm
predictions, but I think your nominations are very sound and
highly likely to be confirmed.
I made that prediction for a Court of Appeals nominee 2
years ago and I was wrong. The nominee had superb
qualifications, but there is a little difference of opinion
depending on politics in the Senate these days.
But I do not think that is going to impede you in any way.
Senator Campbell, would you care to add anything?
Senator Campbell. No, Mr. Chairman. Well, maybe a comment
or two.
I was interested in your story about Justice Rehnquist. I
think he is a fine jurist, but if he had to go through the
confirmation hearing now, as opposed to say even 6 or 7 or 8
years ago, I think he would find it tougher, unfortunately.
Because now not having an answer does not seem to be sufficient
for some of our colleagues. They want you to have an answer,
and it better be the right one. And it is almost a litmus test
answer unfortunately, as you know.
I did want to ask one question of Mr. Lance. You mentioned
that you belong to the Sons of the American Legion and another
group. You said the Forty ` Eight, or something? Is that what
it is called, Forty ` Eight?
Mr. Lance. Yes, sir.
Senator Campbell. What is that? I am sorry, I have never
heard of that group.
Mr. Lance. It was an offshoot of the American Legion that
was begun after World War I.
Senator Campbell. Where did the name Forty ` Eight come
from, a battle or something?
Mr. Lance. No, sir, it came from the box cars that they
used in France in World War I that had the notation on the side
of 40 men or 8 horses. And that is where they took their name
from.
In fairness to them, their traditions and their rituals and
so forth are the result of basically the draft during World War
I and so forth and so on. And of course, in World War I women
were not drafted.
However, we are now in the 21st century and it is the
American Legion's opinion that possibly they should change
their bylaws and Constitution to include female members of the
Armed Forces honorable discharged.
Senator Campbell. Since you told a couple of war stories, I
think I better fess up and tell you, Mr. Chairman. I belong to
an all man's club. We cannot get any women to join the club.
It is true. It is based in Los Angeles and they do an awful
lot of charity work. They have a number of very high profile
people, some in the movie industry and so on that belong to it.
It is called the Ugly Motorcycle Club.
Funny name but in their bylaws they say anybody is welcome
to belong to it but they have got to subscribe to the bylaws,
which means you have got to be ugly. And we have not found any
women who would admit it, yet.
So far, it is an all male club, but we are still trying.
Thank you, Mr. Chairman. I think that is enough for today.
Chairman Specter. Thank you very much, Senator Campbell.
There will be some more questions submitted for the record.
Thank you both very much.
The Committee is now adjourned.
[Whereupon, at 3:14 p.m., the Committee was adjourned.]
NOMINATIONS INCLUDING ROBERT N. DAVIS TO BE JUDGE, U.S. COURT OF
APPEALS FOR VETERANS CLAIMS
----------
THURSDAY, APRIL 1, 2004
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:35 p.m., in
room 418, Russell Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Cochran, Lott and Congressman
Murphy.
OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,
U.S. SENATOR FROM PENNSYLVANIA
Chairman Specter. Good afternoon, ladies and gentlemen. The
hearing of the Veterans' Affairs Committee will now proceed.
We are joined by high-level dignitaries today, Members of
the Congress of the United States, two United States Senators,
and without further ado, I turn to the senior Senator from
Mississippi, Senator Thad Cochran.
STATEMENT OF HON. THAD COCHRAN,
U.S. SENATOR FROM MISSISSIPPI
Senator Cochran. Thank you, Mr. Chairman. It's a pleasure
and an honor for me to be here with Robert Davis, who taught at
the University of Mississippi School of Law for 13 years. He is
now on the faculty at Stetson University College of Law in
Florida.
He has been a friend of mine because I was on the campus
from time to time for events at the law school. I came to know
him really as the founder of the Journal of National Security
Law. He is a scholar. He has written numerous articles, not
only for that publication but on a variety of subjects in many
other law journals around the country. But he was well
respected at the university and well liked by the students.
He had also taught, before he came to Ole Miss, at
Georgetown University and at Washington Lee University, among
other colleges and universities around the country. He is a
graduate from Georgetown University Law Center here in
Washington. He is a naval officer, a Reservist, who was
activated after September 11, 2001. He is a fine naval officer
and law professor, and I am confident that he will serve with
distinction on the Veterans Court of Appeals.
It is a pleasure to recommend him to you and to introduce
him, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Cochran.
Your recommendation is very weighty with this Committee and
with the U.S. Senate.
I will now turn to Senator Trent Lott.
STATEMENT OF HON. TRENT LOTT,
U.S. SENATOR FROM MISSISSIPPI
Senator Lott. Thank you, Mr. Chairman. It's a pleasure to
be before you, as Chairman of this very important Committee. It
is a great honor to be here to endorse this nominee, Robert
Davis, for this important judicial position.
As is usual, when you follow your senior colleague, you
just say ``me, too.'' I know that Senator Cochran has pointed
out some very important things about this distinguished
nominee. I, too, knew him when he was at Ole Miss, my alma
mater. He has an outstanding record and a diversity of
backgrounds at a lot of different schools.
As has been pointed out, he not only worked in national
security law, but also in administrative law, alternative
dispute resolution, and sports law. He has quite a diversified
background of education and teaching. He also worked as a
government attorney with the Commodity Futures Trading
Commission and the Department of Education.
I think that combination of education, experience, teaching
and in the military, serving now as a Commander in the Navy,
the Reserves, makes him uniquely qualified to take this
position with the U.S. Court of Appeals for Veterans' Claims.
He is an outstanding individual, one that we're very proud
of, that we had a significant portion of his life in
Mississippi. It is a great honor for me to be here and to
endorse his nomination for this important position.
Chairman Specter. Thank you very much, Senator Lott. You
have great references, Professor Davis, to have two
distinguished lawyers, two distinguished Senators, men I have
known for a very, very long time. I have high regard for their
opinions. So thank you very much, Senator Cochran, Senator
Lott.
I know you have many obligations this afternoon, so if you
wish to take leave at this time, thank you.
Chairman Specter. Professor Davis, tell us a little bit
about your own background, where you went to school, what your
professional career has entailed.
Mr. Davis. Thank you, Chairman Specter, for the
opportunity.
I spent most of my youth in Davenport, IA. I went to
college in Connecticut, at the University of Hartford, and law
school at Georgetown here. Upon graduation----
Chairman Specter. What year at Georgetown, the graduation?
Mr. Davis. 1978, sir.
Chairman Specter. And since then?
Mr. Davis. Since then, I practiced in Washington for 10
years in a variety of government positions, as a government
attorney. I taught part time at----
Chairman Specter. With what departments were you
associated?
Mr. Davis. With the Commodity Futures Trading Commission
initially, and then the Department of Education. After that,
shortly with the United States Attorneys Office for the
District of Columbia.
I began teaching in 1988. At the same time, I joined the
military for the first time as a Reserve Officer. I moved to
Oxford, MS. I stayed there for about 16 years, I guess,
teaching and--actually, 13 years there, and then 3 years in
Florida at Stetson University College of Law.
Chairman Specter. You reviewed a book authored by Professor
Christopher Edley, agreeing with his idea that there should be
judicial deference to agency decisions.
Mr. Davis. I vaguely remember the book review, Senator.
Chairman Specter. I hadn't come to a question yet.
[Laughter.]
Chairman Specter. Why do you think there should be
deference to agency decisions?
Mr. Davis. Senator, the short answer is the agencies are
the experts, and certainly in terms of fact finding in the
areas within which the Congress has provided legislation for
those agencies to operate, the authorization. It seems to me
that they are the best first place to interpret the law since
they deal with it on a daily basis.
Chairman Specter. Do you think that sometimes agencies take
advocacy positions, like to uphold the government's view, just
as a matter of predisposition after hearing so many matters and
tending to side with the government?
Mr. Davis. Senator, I think that is a danger. I think it
probably happens from time to time. But in my experience,
agency counsel has been very interested in objective and fair
decisionmaking.
Chairman Specter. Senator Thurmond was Chairman of the
Judiciary Committee, and in an earlier hearing that I attended
in 1982 with two Pennsylvania nominees, Senator Thurmond asked
the nominees, ``If you're confirmed, do you promise to be
courteous?'' Translated into English, that is ``If you're
confirmed, do you promise to be courteous.'' I thought it was a
rather nonrevealing question. What could they say, but, Yes.
Both nominees said yes, and Senator Thurmond said, ``The more
power a person has, the more courteous the person should be.''
Translated into English, ``The more power a person has, the
more courteous the person should be.'' I have since come to
regard that as a very profound question and a very profound
observation. If you are confirmed, do you promise to be
courteous?
Mr. Davis. Absolutely, Senator. Absolutely.
Chairman Specter. Sometimes when you don those black robes
and you have either life tenure or tenure for 15 years, judges
tend to become impatient.
You taught constitutional law. What would you think of a
constitutional amendment that subjected Federal judges to
election every 6 years, and Senators to serve for life?
[Laughter.]
Chairman Specter. Be careful now. Be careful in your
answer.
Mr. Davis. Do you want----
Chairman Specter. I withdraw the question, Professor Davis.
Professor Davis, we have a long list of questions for you
to respond to here. I am hopeful we can get you confirmed.
[The prepared statement of Mr. Davis follows:]
Prepared Statement Robert N. Davis, Nominee to be Judge,
U.S. Court of Appeals for Veterans Claims
Chairman Specter, Senator Graham and the distinguished Members of
this Committee. I appreciate the opportunity to appear before you today
as you consider my nomination to serve as a judge on the United States
Court of Appeals for Veterans' Claims. I would also like to thank the
distinguished Senators from Mississippi, Senator Thad Cochran and
Senator Trent Lott, for their joint appearance here today and that very
kind introduction.
My remarks will be brief. If confirmed, I will dedicate my efforts
to assisting my fellow judges to efficiently and fairly adjudicate
cases and decrease the backlog of matters pending before the Court
consistent with the rule of law. If confirmed, a priority mission will
also be to ensure that those veterans who have business before the
United States Court of Appeals for Veterans' Claims receive thorough,
expeditious, and objective decisions. My diverse background and twenty-
six years of experience as a lawyer will allow me to bring a fresh
perspective to the Court, if confirmed. This experience includes
thirteen years as a law professor, and an equal amount of time as a
government attorney trying both criminal and civil cases, a
Commissioner to the National Commission on Uniform State Laws, an
Arbitrator and Mediator with the American Arbitration Association and
the United States Postal Service, a Hearing Officer for the SFOR Claims
Tribunal in the Republic of Serbia, Sarajevo, Bosnia, and a member of
the United States Navy Reserves. This diverse background and experience
will assist me, if confirmed, in adjudicating the variety of veteran's
benefIt claims that fall within the jurisdiction of the Article I
United States Court of Appeals for Veterans' Claims.
As a young boy growing up in Davenport, Iowa, I dreamed of becoming
a lawyer someday. That dream became a reality when I graduated from law
school. It was made possible because of the support I received from my
parents and family members, teachers at all grade levels, and friends.
It was also made possible because of the freedoms we enjoy as
Americans. However, I did not dream that someday I would be teaching
law at the University of Mississippi School of Law or at my present
station, Stetson University College of Law in Gulfport, Florida, the
home state of my father who is now deceased, and my grandparents with
whom I would frequently visit in Fort Pierce as a child. And I most
certainly did not dream that someday I would be nominated by the
President of the United States of America to become a Federal judge.
However, this great Nation of ours with all of its quirks and
imperfections has a way of making dreams become reality. Even things
that I may not have dreamt, may happen to anyone of us if given the
opportunity to achieve in a free nation.
In conclusion, I would like to thank the Committee for the
opportunity to appear before you today and present this statement. I
would be happy to answer any questions that you may have.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Response to Written Questions Submitted to Robert N. Davis,
Nominee to be Judge, U.S. Court of Appeals for Veterans Claims
Question 1. In 1991, you reviewed a book authored by Professor
Christopher Edley, Jr. titled, Administrative Law: Rethinking Judicial
Control of Bureaucracy. See 43 Admin. L. Rev. 819 (1991). Professor
Edley advanced some rather novel ideas on the issue of judicial
deference to agency decisionmaking, and your commentary seemed to agree
with them. You said, for example, that ``I agree totally with
[Professor] Edley's proposition that our traditional approach [to
administrative law] does not provide adequate guidance on when
[judicial] deference [to administrative agencies] is appropriate.'' Do
you believe that ``guidance'' on the issue of deference owed by the
courts to administrative agencies has been clarified since you wrote
that statement? If you are confirmed, what principles would guide you
in determining the appropriate degree of deference owed by the U.S.
Court of Appeals for Veterans Claims (``the Court'') to decisions of
the Department of Veterans Affairs (``VA'')?
Response. A. Yes, I believe that ``guidance'' on the issue of
deference has been clarified and reinforced since I wrote the above
statement. When the book review was written in 1991, my major point of
agreement with Professor Edley was with his thesis that often,
administrative agency action is not always so easily divided into the
law, fact or policymaking categories. Because agency action may
frequently involve a mix or blend of these categories, it may not
always be easy to apply conventional judicial review approaches to
mixed agency action. However, since writing the book review, I have not
found a better approach than the traditional one based on the
separation of powers model. The issue of deference owed by courts to
administrative agencies is a consistent theme in administrative law.
The debate regarding scope of review and judicial deference will
probably continue to occupy jurists, administrative law scholars and
practitioners for some time to come. However, I believe, as do several
administrative law scholars, that the United States Supreme Court has
consistently sent strong signals to the lower Federal courts, to leave
agency determinations alone unless the agency has abused its discretion
or acted inconsistent with its statutory authority. Recent
administrative law cases indicate that the early messages of cases like
Chevron U.S.A., Inc. v. Natural Resources Defense Council 467 U.S. 837
(1984) and Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc. 435 U.S. 519 (1978) has been received and
followed. See, for example, Household Credit Inc., v. Pfenning, 2004 WL
840101, April 21, 2004, holding that the Federal Reserve Board's
promulgation of Regulation Z interpreting the ``finance charge''
definition to exclude over-limit charges under the Truth in Lending
Act, was not unreasonable and therefore entitled to judicial deference.
B. If I am confirmed, I would be guided by the following principles
in determining the appropriate degree of deference owed by the United
States Court of Appeals for Veterans Claims (CAVC) to decisions of the
Department of Veterans Affairs. First, I would be informed by the
express provisions of the relevant statute(s) providing judicial review
authority. Second, I would follow precedent to the extent that it is
consistent with statutory authority. Third, I would recognize that the
agency is usually in the best position to determine facts and defer to
such factfinding determinations by the Board of Veterans Appeals (BVA)
unless they are ``clearly erroneous.'' Fourth, with respect to issues
of law, I would review Board determinations ``de novo'' to ensure a
consistent rule of law development. Additionally, constitutional
principles of fundamental fairness and procedural regularity would also
inform my decisions on the bench.
Question 2. Further with respect to Professor Edley's article, you
state that he advances the notion that courts and agencies should
``form a partnership in which the courts make decisions based on how
effectively and efficiently the agency is responding to the needs of
society.'' Do you believe that courts should take into account how well
an agency is responding to the needs of society when it reviews agency
actions? How can it do that? Do you think judges have particular
expertise in making such judgments?
Response. A. While I do not believe it is the role of the courts to
take into account how well an agency is responding to the general needs
of society when it reviews agency actions, it seems to me that part of
what the court must do when it reviews agency actions is to answer
several fundamental questions in the case. What is the problem? What is
the remedy? Is there a way to fix the cause in order to avoid similar
problems in the future? I do not believe the agency focus should be on
the ``needs of society'' generally; however, I do believe that the
reviewing court should certainly consider in the context of each case
presented whether or not the agency is fulfilling its specific
statutory mandate efficiently. Thus, questions regarding whether the
Board of Veterans Appeals or the CAVC case processing procedures
ensures timely decisions for claimants go directly to the issue of
whether the agency is responding to the needs of its constituents.
B. I believe the ability of courts to address the question of
whether the agency is responding to the needs of its particular
constituents is limited to the context of the specific case when it
reviews agency actions. However, the end of year reports of the CAVC,
for example, should certainly be scrutinized by the judges, from a big
picture perspective, in an effort to detect patterns, trends, gaps,
highs and lows or particular areas of case processing that need
attention or are problematic at the agency level.
C. While I do not believe that judges have a particular expertise
in making determinations about the agency response to the needs of
society generally, I do believe judges are in a good position to
determine whether agencies are efficiently fulfilling their statutory
mandates based on an assessment of the kinds of cases brought before
the court, or the frequency of the type of case or the problems that
certain agency rules generate for claimants. However, the question of
whether or not agencies are ultimately fulfilling their statutory role
by meeting the needs of their constituents seems to me to be a job
better left to the Congress.
Question 3. You are a Professor of Law at Stetson University
College of Law, and you have taught administrative law there and at the
University of Mississippi. Which two or three administrative law cases
would you cite as being the most significant on the topic of judicial
review of an agency's actions? Why these cases?
Response. A. In my view, the two most significant cases on the
topic of judicial review are Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984) and Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).
Both cases are law defining moments in administrative law because they
directly address the role of the courts in reviewing administrative
action. Chevron addresses judicial review for issues of law and Vermont
Yankee addresses judicial review in the context of administrative
rulemaking.
B. In Chevron, the United States Supreme Court developed a two-step
approach for the courts to follow when addressing scope of review
issues of legal interpretation. There, the Court said, if the intent of
Congress is clear and it has spoken directly to the precise question at
issue then follow that intent. However, if the court determines that
Congress has not directly addressed the issue, the court's role is not
to simply impose its own construction on the statute but rather to
determine whether the agency's interpretation is based on a permissible
construction of the statute. The Court has long recognized that
considerable weight should be accorded to an executive department's
construction of a statutory scheme it is entrusted to administer.
In Vermont Yankee, the Court held that Sec. 553 of the
Administrative Procedure Act established the maximum procedural
requirements which Congress was willing to have the courts impose on
agencies conducting rulemaking procedures. Agencies are free to grant
additional procedural rights in the exercise of their discretion, but
reviewing courts are generally not free to impose them if the agencies
have not chosen to grant them.
Thus, both cases stand for the general proposition that because
agencies are charged with the day to day administration of the organic
statute, agencies are entitled to a good degree of deference and
discretion regarding the best methods to pursue the discharge of their
statutory duties.
Question 4. The issue of statutory construction, and the so-called
``plain meaning'' rule, has, on occasion, been pivotal in veterans'
litigation. Would you hesitate to reverse or remand a decision by the
VA that is consistent with long-standing VA practice, but is contrary
to your own best reading of the express words of a statute? Would your
judgment on such a question be influenced by your conception of the
``common sense'' of VA's historical interpretation or by your sense of
what is the preferable or most logical policy? Would the potential cost
of overturning a historical--but, arguably, erroneous--statutory
interpretation enter into your decisionmaking in such a case?
Response. A. I would hesitate to reverse or remand a decision by
the VA that is consistent with long-standing VA practice, but is
contrary to my own best reading of the express words of a statute. I
would hesitate to substitute my judgment for that of the agency charged
with implementing the statute as long as the agency construction is a
reasonably permissible one. This approach is consistent with
administrative law precedent.
B. My judgment on such a question would be influenced by my concept
of the ``common sense'' of the VA's historical interpretation and its
logic as applied.
C. A cost-benefits analysis would certainly enter into my
decisionmaking regarding whether or not it is appropriate to overturn a
historical, but arguably erroneous, statutory interpretation. However,
if the interpretation is clearly contrary to the statutory scheme I
would be more inclined to overrule the agency despite the cost. If, on
the other hand, the agency interpretation is a close call (as to
whether it is erroneous) and the potential cost of overturning the
interpretation is excessive, I would be less inclined to overrule the
agency.
Question 5. The Committee receives extensive mail that expresses a
common theme: that justice delayed is justice denied, and that it does
a veteran limited practical good to prevail on a claim if it takes
years of decisions, appeals, and remands to ultimately prevail. From
what you have been able to learn about the adjudication of veterans'
benefits since your nomination, do you think it takes too long for a
claim to work its way through the current administrative and judicial
review process? If so, do you have any proposed remedies the Committee
might consider to speed up the process?
Response. A. I strongly believe that one of the major weaknesses of
the VA processing system is precisely that it takes too long for a
claim to work its way through the current administrative and judicial
review process. On average, it takes the regional offices 184.2 days to
render a decision on an initial claim and an average of 672 days to
process a remand from the CAVC or the BVA. (June 3, 2002, Draft Report
of ABA Section of Administrative Law and Regulatory Practice.) The time
frame for CAVC decisionmaking, from filing to disposition has averaged
around 1 year for the last 7 years. (Report to the Social Security
Advisory Board by Paul Verkuil and Jeffrey Lubbers, March 1, 2002.) For
veterans who may have limited resources at their disposal, justice
delayed is justice denied.
B. The proposed remedies that I would give serious consideration to
include many of the recommendations contained in the October 2001, VA
Claims Processing Task Force Report to the Secretary of Veterans
Affairs. The Task Force identified flaws to exist in accountability,
communications, and change management. The Task Force recommended
actions to improve the appeal resolution time of veterans' claims at
the Board of Veterans' Appeals and actions to improve the timeliness
and quality of compensation and pension medical examinations conducted
by the Veterans Health Administration. Among the suggested
recommendations include the creation of Teams from experienced staff in
order to expedite resolution of Compensation and Pension claims cases
over 1-year old; Revision of the operating procedures in VBA manual
(M21-1) involving the time for submitting evidence by a claimant,
physician or hospital; Require that BVA process the current workload of
appeals rather than issuing remands; Establish specialized claims
processing teams within defined claims processing functions; Designate
specialized Regional Offices to work specific tasks in order to
increase efficiency; Decrease the time delay necessary to place
incoming claims under control; Improve record recovery from record
center; Authorize VBA Regional Offices to hire administrative staff and
contract for administrative services to support claims processing;
Better utilize Veterans Service Organizations; and Consolidate the
function of income matching.
Additionally, according to a March 2002 Report to the Social
Security Advisory Board by Paul Verkuil and Jeffrey Lubbers, the main
criticisms of the VA appeals process concerns the slowness of the
administrative process and the penchant of both the BVA and the CAVC to
remand cases back to the rating boards. Recommendations in this report
similarly include taking remand authority away from the BVA or
elimination of the reconsideration option before a hearing officer at
the VBA and go directly to the BVA.
Similarly, the administrative law and regulatory practice section
of the American Bar Association in its July 2002 Report on
Recommendations for Improvements in Veterans' Judicial Review,
recommends that the CAVC should hear all questions of law presented to
it rather than refusing to resolve a legal claim not expressly argued
before the BVA; and exercise its statutory authority to expedite VA
decisions when it remands a case for further administrative proceedings
by ordering VA to readjudicate the case by the date ordered by the
court.
In my view, these recommendations are certainly starting points for
a major system overhaul with a focus on providing timely, fair, and
expeditious resolution of VA claims. If confirmed, I would dedicate my
energy to ensuring that claims processing systems at all levels work
efficiently so that veterans will recognize that there has been a major
improvement in the amount of time it takes for a claim to reach
finality. Moreover, none of the reform recommendations that I have read
seem to include an alternative dispute resolution process. I would
recommend, to the extent possible, that it would be worthwhile to
investigate whether there may be a role for mediation or arbitration in
the VA claims process and/or some expanded use of the CAVC's case
settlement process.
Question 6. It has been posited that the U.S. Court of Appeals for
Veterans Claims should have broader discretion to craft remedies sua
sponte when it finds errors in VA decisionmaking. Do you have any views
on this subject?
Response. I believe giving the CAVC broader discretion to craft
remedies sua sponte could significantly aid the Court in addressing
backlogs and ultimately assist in providing a better and more efficient
appeals system by resolving issues itself rather than remanding issues
to the BVA. The administrative law and regulatory practice section of
the ABA stated in its July 2002 Report that ``When the CAVC remands a
case, it contributes to delay by refusing to resolve issues presented
to it other than the ground relied upon for remand.'' The ABA Report
concluded that the impact of the CAVC remand practice is significant
because it has remanded nearly 70 percent of the cases it has heard
over the last 7 years. In my view, this remand percentage is too large.
One of the ABA recommendations to Congress was that it enact
legislation to require the CAVC, when it remands a claim for further
administrative proceedings, to resolve all allegations of error
presented by and briefed by the appellant that, if left unresolved,
could be the subject of a subsequent dispute before the VA.
Additionally, the ABA has recommended that the CAVC as a matter of
general practice should hear all questions of law presented to it
rather than refuse to resolve a legal claim not expressly argued before
the BVA.
Question 7. The U.S. Court of Appeals for Veterans Claims allows
non-attorney practitioners to appear and to argue cases for claimants.
Further, the Court hears many appeals--more than most courts, I think--
where a non-attorney claimant appears pro se. How would the
participation of a non-attorney advocate in a case before you affect
your approach to hearing--and deciding--a case? Do you think judges
should make special accommodations for non-attorney practitioners? For
pro se litigants?
Response. A. I understand that dealing with pro se cases is one of
the Court's biggest problems. The participation of a non-attorney
advocate or a pro se litigant can be even more demanding of judicial
resources because of the necessity to ensure that the claimant is
adequately and fairly represented. The participation of a non-attorney
advocate in a case before me would affect my approach to hearing and
deciding a case only to the extent that I would take particular care to
make sure that the litigant received fair representation. The public
list program and the National Organization of Veterans Advocates have
helped to provide a baseline standard of non-attorney representation,
but the quality of advocates is not always consistent.
B. While I do not believe special accommodations for non-attorney
practitioners or pro se litigants should be made in the general conduct
of a hearing or in the way a judge should decide a case, I do think the
judicially responsible approach should be to take all steps to ensure
that the litigant gets a fair hearing and decision. This is no more or
less than any other litigant is entitled to but ensuring a fair process
may take more time when the litigant is a non-attorney or pro se.
Question 8. The Committee's staff--and the White House Counsel's
Office and the Department of Justice--are currently researching a legal
question that has arisen as we consider your nomination. The question
is, generally, whether Reserve Officers have to--or ought to--resign
their commissions if they serve on the bench. Have you considered this
question? In your White House vetting process, did anyone there raise
the issue? Do you intend to remain a Reserve Naval Officer if you are
confirmed by the Senate?
Response. A. I remember raising the question when I was initially
interviewed by the White House regarding my status in the Naval
Reserves but no one had an answer. While I am not aware of any express
prohibition of a judge serving in the military Reserves, to the extent
that it would become difficult or impossible for the Reserve Officer to
meet his or her obligations on the bench I think it would be
appropriate and prudent to resign the commission. The potential
difficulty would arise if the officer were activated or recalled to
active duty based on a national emergency like 9/11.
B. I have considered the question and am aware of several judges
who have also been Naval Reserve Officers. The judges that I know are
state court judges in Florida.
I am not aware of any law prohibiting a Federal judge from serving
in the Naval Reserves. I know the Soldiers and Sailors Relief Act
requires employers both public and private to maintain the
servicemembers' job.
C. In my own experience, I have attempted to balance my
professional career with my responsibilities as a Naval Reserve
Officer. It has not been easy but my employers have been supportive of
my service to my country. I recognize that it may be much easier to
take a leave of absence from an academic institution than from a
private or public employer or from the bench. If I am confirmed by the
Senate, my intention is to maintain my Reserve commission unless it
clearly interferes with my responsibilities on the bench. If the
Reserve commission interferes with my judicial duties then I would
resign my commission.
Question 9. Committee staff has been informally advised by the
Department of Justice that it sees no per se proscription against
retention of a commission in the Armed Forces and service on the
bench--at least so long as a Judge's service in the military is not of
a legal nature. One might wonder, however, whether the time-demands of
the military might prevent a Judge from executing his or her judicial
responsibilities. Do you forsee any problems of this nature? What will
you do if you are activated again? Would you be forced to resign from
the bench? Would you be forced to--and would you be allowed to--resign
your commission?
Response. A. The normal time demands of the military would not
prevent a judge from executing his or her judicial responsibilities.
The requirements are to perform military drills with a unit 1 weekend a
month and a minimum of 2 weeks active duty per year. In. my military
career, I have usually performed much more service on an annual basis
than the required minimum.
B. The situation is complicated when a national exigency requires
activation of the Reserve forces. In the past, I have volunteered for
active duty service in exigent circumstances or when I thought I could
contribute to a mission. However, I understand that there are
categories of Reserve military service that may not require activation.
I would have to look into this. If I am on the bench and activated, I
don't believe I would have the option of resigning my commission until
after the period of activation has ended.
C. Activation with the military would not force me to resign from
the bench but it would temporarily delay my ability to continue the day
to day work of the court.
Usually, involuntary recalls are no longer than 2 years. The
longest period of time for which I have been activated has been 2 years
and even then I, along with many servicemembers, was allowed to return
to my civilian career after 1 year.
Question 10. During your time as a Law Professor at the University
of Mississippi, you spent a considerable period of time away from the
law school to serve in the Navy.
This Committee oversees the administration of two statutes by the
Department of Labor that protect servicemembers and their families in
such situations. First, the ``Uniformed Services employment and
Reemployment Rights Act,'' 38 U.S.C. Sec. 4301 et seq., assures that
employers will not penalize employees for serving in the Reserves.
Second, the recently recodified ``Servicemembers Civil Relief Act,''
Public Law 108-189, December 19, 2003, protects servicemembers and
their families from lawsuits, evictions, and default judgments during
periods when they are away from home on active duty service. Has your
experience with your employers provided you with any insight on the
efficacy of these statutes in protecting the rights of servicemembers?
Do you feel like your career at Mississippi suffered because of
absences from campus for active duty service?
Response. A. My experience with my employers both at the University
of Mississippi and at Stetson University has always been extremely
positive regarding my military service. Both institutions have been
exceptionally supportive and have accommodated my service commitment
without question. Both institutions were cognizant of their legal
responsibilities under the Servicemembers Civil Relief Act and the
Uniformed Services Employment and Reemployment Rights Act. In my
experience, most employers of my brothers and sisters at arms have been
supportive generally. However, I am aware of situations where the
servicemember's military commitment has caused problems at his or her
place of employment. In my judgment, these statutes are critically
important to attracting and keeping good people in the military
Reserves. Without employment security, I believe it would be more
difficult to maintain the high quality of the current volunteer Reserve
service.
B. Yes, I believe my career did suffer because of absences from
campus for active duty service in two basic ways. First, because of my
unavailability during the summer months (my choice) and the potential
to recall for active duty, I believe administrators may have been
reluctant to seek me out for academic administrative positions. While,
I have never applied for such a position, other colleagues who did not
have the military commitment that I did, were considered and received
administrative positions. Second, the time that I spent away from home
on active duty delayed some of my writing projects. Though I always
exceeded my publication requirements for regular promotion and tenure,
I was not always able to complete other projects within the timeframe
that I anticipated because of military service interruptions. Again,
these decisions to serve were my decisions and I realized the impact
they could have on my civilian career at the time. However, ultimately,
I believe my military career enhanced my legal career by providing me
opportunities in the national security law field that I would not have
had otherwise.
Question 11. You recently wrote an article titled ``Striking the
Balance: National Security vs. Civil Liberties,'' in the Brooklyn
Journal of International Law. In the article, you concluded that in
enacting the USA Patriot Act, Congress struck an appropriate balance
between national security and Fourth Amendment privacy concerns. But
you also noted at the outset of the article that ``the USA Patriot Act
is not perfect; no piece of legislation is,'' What defects--or
``imperfections''--have you identified in the USA Patriot Act? Do you
have suggestions for changes that Congress should consider as it
considers reauthorization of this legislation?
Response. A. One of the major criticisms of the USA Patriot Act is
that it was passed in haste without appropriate Congressional
deliberation and thus, contains provisions that undermine individual
freedoms. A number of highly controversial USA Patriot Act provisions
have been identified by several organizations (Center for Democracy &
Technology and the American Civil Liberties Union) for Congressional
review as USA Patriot Act II is considered. These provisions include,
Sec. 203(a) sharing grand jury information; Sec. 213 sneak and peek
searches; Sec. 215 records searches; Sec. 216 pen registers for the
Internet; Sec. 358 exceptions to financial privacy laws; Sec. 505
National Security Letter exceptions to privacy laws; and Sec. 802
definition of domestic terrorism.
B. The recommendations I included in the law review article were
to:
1. Ensure that the next version of the USA Patriot Act II, goes
through the full legislative process including full committee hearings
and debate.
2. Integrate the findings of the DOJ Report on the implementation
of the USA Patriot Act on the proposed new USA Patriot Act II.
3. Study the DOJ report and make any abuses identified by it the
focal point for amendments, revisions and new legislation.
Question 12. During your employment with the Department of
Education you participated in an agency exchange program that allowed
you to be assigned to the office of the U.S. Attorney for the District
of Columbia. There, you tried a variety of criminal cases. How long
were you so assigned to the U.S. Attorney's office? During your time
with the exchange program, did you ``first chair'' these prosecutions?
Was your time as a prosecutor valuable to you? Did it teach you
anything about good--or bad--judicial temperament?
Response. A. My position as Special Assistant United States
Attorney for the District of Columbia was part of an agency exchange
program with the Department of Education. The goal was to give lawyers
at the Department of Education an opportunity to get a good amount of
trial experience working with the United States Attorney's office. The
program was approximately 4 months and during that period, most of the
attorneys had both bench and jury trials.
B. During that 4-month assignment, I first Chaired at least twenty
cases about ten jury trials and ten bench trials. After the first trial
as second Chair, we usually were given our own caseload to work and
take to trial.
C. My time as a prosecutor was probably one of the most rewarding
experiences of my legal career. I learned so much about trying cases
and the judicial process. After that experience, I had a new confidence
in my abilities as a lawyer.
D. Fortunately, the experience was instructive on many levels. I
learned that the quality of the District of Columbia bar and bench was
very high. Most of the judges on the District of Columbia Superior
Court while polite, were no nonsense in their approach to handling
cases on their docket. I saw colleagues get upbraided by judges and on
at least one occasion I remember during an initial appearance, one of
the judges asking me in an exasperated tone, why I did not make the
observation earlier that the defendant appeared to be intoxicated.
During that experience, I learned that judges are people too with
different personalities. I saw a consistent thread however, on the
bench, most of the judges exercised very calm and careful control over
their courtroom. They all took great care to make sure that the
defendant received a fair trial and they were not hesitant to put the
prosecutors to the test regarding the strength of their cases against
the defendants.
Question 13. I note in your nomination materials that you served as
a Hearing Officer on a Claims Tribunal in Serbia in 1999. Please
elaborate for the Committee the nature of that service. Was this quasi-
judicial service of any assistance to you as you prepare to ascend the
bench?
Response. A. My experience as a Hearing Officer for the SFOR
Republic of Serbia Claims Tribunal was the result of being in the right
place at the right time. My assignment in Sarajevo was as an
intelligence officer, but several people were also aware that I was a
lawyer. As a result of my legal background, I was asked to fill a
position as an American hearing officer on the SFOR Claims Tribunal for
a day. This claims tribunal was gearing up to hear a number of cases in
Bosnia. I sat as one of five judges and heard personal injury and
property cases. These cases included alleged property damage from NATO
ordnance explosions and automobile accidents on the narrow, poorly
maintained, and dangerous Bosnian roads. Accidents with SFOR vehicles
occurred frequently and were often fatal for both the military
personnel and local residents. My job as a hearing officer was to vote
on whether under the circumstances of the case we would recommend and
authorize payments of claims filed.
B. This unusual quasi-judicial international experience was very
helpful as I prepare to ascend the bench if confirmed. Not only did my
years as a mediator and arbitrator aid in this function, but hearing
cases involving local residents claims against coalition military
forces reinforced to me the importance of having a judicial system that
is fair. Even in the context of a combat environment, the SFOR
coalition partners were attempting to expose the Bosnians, Serbians,
and Croatians to a fair legal system and judicial process that worked
without corruption. As I prepared for hearings that day, I was told
that one of our goals was to help demonstrate to the local people that
judicial systems can work even at a rudimentary level. In some ways,
the experience with SFOR makes me even more committed to ensuring that
the veterans who file claims with the VA get expeditious and fair
resolution. The SFOR tribunal did not have the resources of a large
executive department at its disposal but we were committed to quickly
and fairly resolving claims.
Chairman Specter. We have a real snarl today in the Senate
about confirmation of judges. We're having a hard time getting
judges confirmed for the U.S. Court of Appeals for Veterans
Claims. It's all tangled up in a lot of lines.
The Administration will not allow Senators to look at the
confidential investigative files, and in the Judiciary
Committee, Members can see the files. We should be able to see
them. I have taken it up with White House counsel, Alberto
Gonzales. But right now we have a judge being tied up on that
point, isn't that right, Mr. Tuerk?
Mr. Tuerk. That's correct.
Chairman Specter. Then on the broader issue, we have an
escalation of controversy where when we had the President of
one party and the Senate controlled by the other, a stalemate.
And now that we have both the White House and the Senate
controlled by the same party, we come to the filibuster. The
President has exercised his constitutional prerogatives for
interim appointments, and now the Senate is exercising its
asserted power for filibuster. So I do not know where the
nomination is going to go.
You are obviously very well qualified. There are quite a
number of questions I would like you to respond to for the
record. But unlike Ms. Iovino, where I think confirmation will
occur in due course--unless the stalemate proliferates to all
nominees, which is a possibility--but I think at this time it's
unlikely. I just wanted to make you aware of that. I was on the
floor within the hour trying to find a judicial protocol to
solve the problem.
Mr. Davis. I appreciate that, Mr. Chairman.
Chairman Specter. Professor Davis, I will do my best to
move for your confirmation. You have a very distinguished
record and I think the court is lucky to have a man of your
background and qualifications.
Mr. Davis. Thank you, Mr. Chairman.
Chairman Specter. That concludes the hearing.
[Whereupon, at 3 p.m., the Committee adjourned.]
NOMINATIONS INCLUDING MARY J. SCHOELEN AND WILLIAM A. MOORMAN TO BE
JUDGES, U.S. COURT OF APPEALS FOR VETERANS CLAIMS
----------
THURSDAY, SEPTEMBER 30, 2004
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:04 p.m., in
room SR-418, Russell Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Craig, Graham, and Rockefeller.
OPENING STATEMENT OF HON. ARLEN SPECTER, CHAIRMAN,
SENATOR FROM PENNSYLVANIA
Chairman Specter. Good afternoon, ladies and gentlemen. We
will now proceed with the hearing for three nominees who are
before the Committee.
If you will all stand and take the oath.
Do you all solemnly swear that the testimony you will give
before the Committee will be the truth, the whole truth and
nothing but the truth, so help you God?
Ms. Schoelen. I do.
Gen. Moorman. I do.
Chairman Specter. The nominees before us today are Mary J.
Schoelen, and Major General William A. Moorman, United States
Air Force (Retired), to be Judges of the United States Court of
Appeals for Veterans Claims.
Ms. Schoelen is no stranger to this Committee, having
served on the staff here for many years, and we will turn to
her first.
Ms. Schoelen, do you have an opening statement?
STATEMENT OF MARY J. SCHOELEN, NOMINEE TO BE JUDGE, U.S. COURT
OF APPEALS FOR VETERANS CLAIMS
Ms. Schoelen. Yes. Thank you, Mr. Chairman.
I am honored to have been nominated by the President an
associate judge on the United States Court of Veterans Claims.
I would like to thank Senator Rockefeller for his unwavering
support, not just for my nomination, but for my work on the
Committee. It was a true privilege to work for someone who
cares so passionately for the American people and who has
devoted himself to improving the quality of their lives.
I have had the tremendous fortune to work for not one, but
two great Senators. I can express nothing but admiration for
Senator Bob Graham's integrity and intellect. Their efforts are
great examples of what can be accomplished through a lifetime's
commitment to public service.
From the time that I first set my sights on law school, I
was also determined to pursue a life in public service. My
father, Commander Lawrence Schoelen, did have such a life,
serving more than 27 years in the United States Navy. Through
him, I learned firsthand of the sacrifices that servicemembers
and their families are asked to make.
My abiding respect for those who have answered the call to
service has grown into a career spent working on veterans
issues. While still a law student, I joined the National
Veterans Legal Services Program and represented veterans who
were appealing VA decisions on their benefits claims. I found
this work immensely rewarding.
After graduating law school, I came to work for this
Committee as an intern and developed a great appreciation for
the ability of the legislative process to touch millions of
lives. From there, I returned to representing veterans in their
appeals, as well as training and supervising other veterans'
advocates, at the Vietnam Veterans of America.
I returned to the staff of the Senate Committee on
Veterans' Affairs in 1997, where I have worked on a wide range
of veterans-related issues. During this time, I have been
privileged to work closely with the Veterans Service
Organizations, VA, the Department of Labor and my colleagues on
the House VA Committee staff.
Through these experiences, I have become very familiar with
the complexities of the VA benefits delivery system and its
controlling statutes. I believe that the insights and skills I
have gained representing disabled veterans before VA and
working on veterans legislation here in the Senate have
prepared me for the challenges that judges on this court face.
Throughout my career, I have labored to achieve a balance
that ensures veterans receive the benefits they earned through
their service, while striving to develop sound policy that
guarantees the long-term integrity of the system. If confirmed,
I will continue to seek this balance on the court. I will
review the facts and the applicable laws of each case and
dedicate myself to rendering fair and timely decisions.
Mr. Chairman, thank you for the opportunity to appear here
today. It is a true honor to be considered for this position. I
would like to thank your Committee staff for their assistance
during the nomination process, as well as their professionalism
and collegiality over the many years that we have worked
together. Finally, I would like to thank my family, Brad Smith,
colleagues and friends who have gathered here today to show
their support.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Schoelen follows:]
Prepared Statement of Mary J. Schoelen, Nominee to be Judge,
U.S. Court of Appeals for Veterans Claims
Thank you, Mr. Chairman and Members of the Committee.
I am honored to have been nominated by the President to serve as an
associate judge on the United States Court of Appeals for Veterans
Claims.
I would like to thank Senator Rockefeller for his kind introduction
and his unwavering support--not just for my nomination, but for my work
on the Committee. It was a true privilege to work for someone who cares
so passionately for the American people and who has devoted himself to
improving the quality of their lives.
I have had the tremendous fortune to work for not one, but two
great Senators. I can express nothing but admiration for Senator Bob
Graham's integrity and intellect.
Their efforts are great examples of what can be accomplished
through a lifetime's commitment to public service. From the time that I
first set sights on law school, I was also determined to pursue a life
in public service. My father, Commander Lawrence Schoelen, did have
such a life, serving more than 27 years in the United States Navy.
Through him, I learned firsthand of the sacrifices that servicemembers
and their families are asked to make.
My abiding respect for those who have answered the call to service
has grown into a career spent working on veterans issues. While still a
law student, I joined the National Veterans Legal Services Program and
represented veterans who were appealing VA decisions on their benefits
claims. I found this work immensely rewarding. After graduating law
school, I came to work for this Committee as an intern, and developed a
great appreciation for the ability of the legislative process to touch
millions of lives. From there, I returned to representing veterans in
their appeals, as well as training and supervising other veterans'
advocates, at the Vietnam Veterans of America. I returned to the staff
of the Senate Committee on Veterans' Affairs in 1997, where I have
worked on a wide range of veterans-related issues. During this time, I
have been privileged to work closely with the Veterans Service
Organizations, VA, the Department of Labor, and my colleagues on the
House VA Committee staff.
Through these experiences, I have become very familiar with the
complexities of the VA benefits delivery system and its controlling
statutes. I believe that the insights and skills I have gained
representing disabled veterans before VA and working on veterans
legislation here in the Senate have prepared me for the challenges that
judges on this court face.
Throughout my career, I have labored to achieve a balance that
ensures veterans receive the benefits they earned through their
service, while striving to develop sound policy that guarantees the
long-term integrity of the system. If confirmed, I will continue to
seek this balance on the court; I will review the facts and these
applicable laws of each case and dedicate myself to rendering fair and
timely decisions.
Mr. Chairman, thank you for the opportunity to appear here today.
It is a true honor to be considered for this position. I would like to
thank your Committee staff for their assistance during the nomination
process, as well as their professionalism and collegiality over the
many years that we have worked together. Finally, I would like to thank
my family, Brad Smith, colleagues and friends who have gathered here
today to show their support. I would especially like to thank Jim
Gottlieb, Bill Brew, Ellen Doneski, Bryant Hall, and Buddy Menn.
Without them, this would not have been possible.
I am prepared to answer any questions that Members of the Committee
may have.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Specter. Senator Graham has entered the room, and
it is our custom that when a Senator arrives, we recognize them
immediately.
So, Senator Graham, we will hear from you now.
STATEMENT HON. LINDSEY O. GRAHAM,
SENATOR FROM SOUTH CAROLINA
Senator Graham. Mr. Chairman, that is a great custom.
It is with great pleasure that I appear before our
Committee. I have enjoyed serving on the Committee under your
chairmanship, and today is one of the fun things a Senator gets
to do and introduce to his colleagues a very fine gentleman for
a very important position.
General Moorman--in our relationship, I always waited on
him because he was a two-star general and I was a lieutenant
colonel. But, Mr. Chairman, I could not more highly recommend a
person to this Committee than General Moorman. He is the most
recent Judge Advocate General of the Air Force. He is now
retired. He has had about every job an Air Force lawyer could
have. He led the Department extremely well as the Judge
Advocate General for the Air Force, a man of the highest
integrity.
He was in the Pentagon on September 11, 2001, and took a
leadership role of evacuating the building, caring for those
who were hurt, then went with the air staff to plan a counter-
response.
Since his retirement, General Moorman has served in the
Department of Veterans Affairs as a counselor to the general
counsel and as Assistant to the Secretary for Regulation
Policy. In this role, Mr. Chairman, he was responsible for a
comprehensive review of all VA regulations to ensure clarity,
consistency, user-friendliness and compliance with the law. In
other words, he tried to take the regulatory scheme of the VA
and put it in understandable English.
He has been there for his country in a variety of roles. He
has served the Veterans Department well. He has served his
Nation well in uniform, and I think he would be a great
addition to the Court of Appeals for Veterans Claims. He will
make it more efficient. He is an eminently fair man, and it is
with great pleasure that I recommend his appointment to the
Committee.
General, I am very proud of you.
Chairman Specter. Thank you very much, Senator Graham.
Senator Rockefeller.
STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
SENATOR FROM WEST VIRGINIA
Senator Rockefeller. Thank you, Mr. Chairman. I am
unaccustomed to sitting here. This is a first. I am grateful to
you for holding this, welcoming our nominees, Robert Allen
Pittman and Mary Schoelen. They are very qualified, and I wish
to say a word about Mary.
I am particularly happy that Mary is having her hearing
today. She is no stranger to us. Indeed, the Chairman and I put
Mary's nomination forward in June of 2002. So it is a long time
in the works, but I am very glad that this hearing has been
scheduled and I appreciate it.
Mary first came to this Committee in 1994 as an intern,
working for free--that impresses me--and eager to gain more
experience in an area where she has always been interested and
passionate, and that is called veterans, individually and
collectively.
I have always been most impressed with Mary's compassion
for veterans that we serve and her commitment to work on
matters and people in whom she believes so strongly.
She never loses sight of serving the individual veteran.
One example of that is, I specifically recall one young West
Virginia veteran who was losing his fight with Lou Gehrig's
disease. His family felt that the law VA was applying to the
adaptive housing grant for his home was unjust. She listened,
she researched, and then she set about to successfully fix what
was wrong and make it right.
She took the plight of one individual veteran and worked to
change the entire law so that thousands of veterans could
benefit. That is just one small example of the many successful
pieces of legislation that Mary has championed and helped usher
through this process in this Committee and in this Congress to
a positive solution.
Mary has a huge range of experience, part of which I had to
cut out because it was so extensive so I wouldn't go on too
long. All of this experience will serve her well on the court.
When Mary finished her internship with this Committee, she
joined the staff of Vietnam Veterans of America. She
represented veterans before the VA and trained other advocates
for veterans. In 1997, I was very fortunate to convince Mary to
return to what at that point was my Committee staff it is nice
to say, where she later became the Committee's General Counsel
and Deputy Staff Director for Benefit Programs. She understands
veterans' matters from all angles.
Mary's unique perspective and knowledge gained while
advocating for veterans before the VA and here in Congress make
her particularly well-suited to be a judge on this court. This
Committee and the full Senate should be enormously proud that
one of our own is again willing to continue to serve veterans
in a very direct way.
Mr. Chairman, I feel very strongly about Mary
professionally and personally. I think she is a superb person,
an exceptionally wonderful person. I want very much to thank
you, Mr. Chairman, for moving these nominations expeditiously
to make this all happen. It is critical that these nominees for
this important and special court are approved. Your efforts to
achieve this should be properly recognized. I also want to
acknowledge your Chief Counsel, Bill Tuerk, for his fine work
during this process.
I thank you for your attention and recommend highly Mary
Schoelen to the position for which she has been nominated.
Chairman Specter. Thank you, Senator Rockefeller.
Ms. Schoelen, is there anyone in the hearing room you would
like to introduce?
Ms. Schoelen. Yes. Thank you, Mr. Chairman. With me today I
have my brother, Larry Schoelen, and my boyfriend, Brad Smith.
Chairman Specter. General Moorman, is there anyone in the
hearing room you would like to introduce?
General Moorman. Yes, Mr. Chairman. I have with me my wife,
Bobbie.
Chairman Specter. Since both Ms. Schoelen and General
Moorman are up for the same position, I will ask the questions
and ask each of you to respond.
As a generalization, Ms. Schoelen, what are your views as
to the role of a judge with respect to interpreting or making
law?
Ms. Schoelen. Well, a judge has the role to interpret law.
It is not their role to make law. The jurisdiction of the court
and the areas in which it is supposed to interpret statutes and
regulations have been clearly laid out, and that was what I
would endeavor to follow if I were to be confirmed.
Chairman Specter. What is your thought on that subject,
General Moorman?
General Moorman. Senator, I would agree with what Mary has
just said. I think that the role of a judge is to apply the law
to the facts that come before him, in accordance with the
statutes that govern the court.
Chairman Specter. What is your view of the unique procedure
in this court, where there are advocates for claimants who are
not members of the bar? Does that give you any pause, General
Moorman?
General Moorman. No, Senator, it doesn't. In this
particular case, I think in keeping with the general construct
of the court to handle veterans' claims, it is important that
veterans have the opportunity to come before the court and to
present their own cases, if they see that as in their
interests, and not feel as though they have to hire an attorney
to get a fair and just hearing of their claims.
Chairman Specter. Well, the issue of hiring an attorney may
not influence the court in terms of making a fair adjudication,
but how about the quality of presentation? Would you encourage
pro se litigants, people who are representing themselves, to
try to get professional assistance, a member of the bar?
General Moorman. I think that the rules of the court,
Senator, actually, if there is going to be a panel decision, do
encourage claimants who are appearing pro se to consider
representation. But in terms of what a judge should bring to a
particular case, I would hope that in my considerations it
would not matter whether the litigant came before me
representing himself or herself, or was represented by counsel,
because the duty of the judge is to decide the case fairly
based on the facts and the law.
Chairman Specter. Ms. Schoelen, do you think that there is
any significant advantage for a claimant to have a member of
the bar represent him as opposed to representing himself or
herself pro se, or having a non-lawyer advocate?
Ms. Schoelen. I don't believe that there is necessarily an
advantage between a member of the bar and a non-attorney
practitioner. There are many skilled non-attorney practitioners
who have practiced for years as veterans' advocates through the
service organizations that practice before the court.
I do think that the system of laws and regulations is
complex, and a pro se litigant would probably be greatly aided
by the help of an attorney or a non-attorney practitioner. But
I echo General Moorman's sense that it is their right, and if
that is what they wish to do, the court should certainly allow
for pro se litigants and review the evidence and the facts in
whatever manner they are presented.
Chairman Specter. Well, at one of the first hearings after
being elected to the Senate on the Judiciary Committee, Senator
Strom Thurmond was the Chairman and one of the questions which
he addressed to the nominees was, in his inimitable accent,
``If you are confirmed, do you promise to be courteous?''
Translated into English that is, if you are confirmed, do you
promise to be courteous? And the thought that went through my
mind was what a meaningless question. What is a nominee going
to say.
Both of the nominees responded in the affirmative, and then
Senator Thurmond said, ``The more power a person has, the more
courteous the person should be.'' Translated again, the more
power a person has, the more courteous a person should be. Over
the years, I have come to regard that as a very profound
statement, and when I have presided on hearings in the
Judiciary Committee or on this Committee, I have always asked
that question.
Ms. Schoelen, do you promise to be courteous?
Ms. Schoelen. Yes, Mr. Chairman.
Chairman Specter. General Moorman?
General Moorman. Absolutely, Mr. Chairman.
Chairman Specter. Well, remember that, because there are
nominees who have told me years later, more than decades later
that was a very important comment which was made because there
tends to be an attitude, once you have that black robe on, of
sort of omnipotence, and especially in a context where you are
going to have people who are pro se or who are not trained in
the law. It is true that some of the non-attorney advocates are
very well-versed and very, very experienced, and may have
superior skills than some beginning lawyers would who appear
before the court. But bear that in mind.
Ms. Schoelen, do you anticipate having any extra expertise
on being a judge of this court, if confirmed, as a result of
your work for the Committee? Do you think you will know a
little more about legislative intent, or have a little
different insight than, say, General Moorman will?
Ms. Schoelen. Well, I don't believe that any one staffer
can really try and nail down what congressional intent is,
since it is an understanding of the entire body and of both
chambers. And I don't really think that it would affect my
judgment in a particular case. I would look at the facts and
applicable law and, if necessary, then move on to the publicly
available legislative history.
Chairman Specter. Well, wouldn't congressional intent be a
relevant factor on interpretation of a statute which is not
plain on its face?
Ms. Schoelen. Yes, Mr. Chairman, and to that avenue I would
look to the publicly available documents that all judges would
have available to them.
Chairman Specter. And suppose you had some special
expertise. How could you close your mind to that?
Ms. Schoelen. Well, a judge's role is to be fair and
impartial, and I think that carries into that area of you have
to look at the facts that are before you and the law that is
before you and the available evidence that would clarify that
material.
Chairman Specter. General Moorman, do you think there is
any such thing as congressional intent, or do you think that
Justice Scalia is pretty much right when he says it is an
irrelevancy; that you only have to look at the face of the
statute?
General Moorman. Senator, I think that in the cases where
the statute is clear on its face, obviously there is no need to
look for legislative intent. But I would hope that in cases
where the statute is not clear on its face that I could look to
the record to define, if necessary, what the legislative intent
was and help inform my decision.
Chairman Specter. How would you seek to determine that
legislative intent, Ms. Schoelen?
Ms. Schoelen. I would look at Committee reports, joint
explanatory statements, floor statements that may have been
published in the Congressional Record.
Chairman Specter. Would you look at Committee reports?
Ms. Schoelen. Yes, sir.
Chairman Specter. Haven't you seen Committee reports always
prepared by staff? Would you say that staff intent is relevant?
Ms. Schoelen. Staff intent is illustrated through their
Members' direction and intent.
Chairman Specter. If it is ratified?
Ms. Schoelen. I'm sorry, sir?
Chairman Specter. Ratified?
Ms. Schoelen. Does the staff ratify what the Members say?
Chairman Specter. No. Does the Member ratify the staff? I
hadn't heard it in the reverse.
Ms. Schoelen. I would say it would perhaps depend on the
committee, sir.
Chairman Specter. I am sorry that Colonel Graham is gone.
How does a Senator's rating compare to a general's rating,
General Moorman, contrasted with a lieutenant colonel's rating
to a major general? And this is specifically with Senator
Graham, not any other Senator.
General Moorman. Well, I will be deeply indebted to Senator
Graham for the fine words that he spoke today, regardless of
how you would sort out the relative merits or whether or not we
are in uniform. And it is unlikely that I will be in uniform
again, so there would always be deference to Senator Graham.
Chairman Specter. Hypothetically, Ms. Schoelen, if you
found a longstanding precedent from the court which you thought
was erroneous under the plain meaning of the statutory
construction as you read it, how would you balance your own
view of a clear-cut statutory construction as opposed to a
longstanding practice of the court which you thought was wrong?
Ms. Schoelen. Mr. Chairman, if the interpretation of the
statute was clear on its face to be incorrect, it would be the
court's role to overturn that interpretation, despite
longstanding precedent.
Chairman Specter. What is your sense on that, General
Moorman?
General Moorman. I would agree completely, Senator. A judge
must rule on those legal issues as he sees the law----
Chairman Specter. Or she.
General Moorman.--or she sees the law.
Chairman Specter. Would the potential cost of overturning a
historically established rule enter into your decision on how
to adjudicate a case?
General Moorman. Senator, it wouldn't enter into my
decision if we were talking about a statute that was clear on
its face. However, if it was a statute that was not clear on
its face and I felt as though we were operating in an area
where, because there was latitude left in the statute, the
agency appropriately acted, then the agency's analysis,
including cost, would become an important factor in determining
whether or not they had taken an appropriate course in
regulating within the law.
Chairman Specter. To what extent do you think it's
appropriate for the agency to consider cost in its
decisionmaking process?
General Moorman. I think that, from time to time, it has to
be an important factor. I would think that it ought to weigh
less heavily where it is clear that the intent of Congress is
to deliver benefits, compensation and pension, to veterans. And
the overriding principles that underlie veterans' compensation
and pension programs are the delivery of those benefits.
Chairman Specter. Well, should it weigh at all under those
circumstances? Should cost weigh at all under the circumstances
you have just described?
General Moorman. With regard to particular benefits, I
would say not. With regard to defining the right policy
decisions within the law with regard to what conditions might
have to be met in order to qualify for benefits, I would say it
might be a consideration. I would not give it great weight.
Chairman Specter. Well, what kind of policy matters are you
thinking about where cost would be a factor?
General Moorman. I think the one situation that would come
to mind for me, Senator, would be not in the benefits area, but
more in the medical care delivery area, where the Secretary
made the decision, I think, reluctantly to stop enrollment of
Category 8 veterans because the net result of continuing to
enroll those veterans for care was that it put them behind the
queue of veterans who had been injured in service. Those kinds
of decisions.
Chairman Specter. Ms. Schoelen, how about the cost factor
as a consideration in your judgments, if confirmed?
Ms. Schoelen. I would again agree with General Moorman's
analysis that if an interpretation of the agency was wrong,
clearly wrong on its face, that cost should not play a factor.
But the court is not intended to overturn regulations or rules
that are not arbitrary and capricious. So, if there was not a
clear finding that the agency was acting in error, then it
would not come into play.
Chairman Specter. So you agree with what he said just like
he, a few moments ago, agreed with what you said?
Ms. Schoelen. Yes, sir.
Chairman Specter. Have you conspired in advance?
Ms. Schoelen. No, sir.
General Moorman. No, sir, we have not.
Chairman Specter. Senator Craig.
Senator Craig. Mr. Chairman, I am not going to try to
follow that line of questioning, but let me say thank you for
convening this hearing and having these folks before us. We
have a critical need in this particular area. The U.S. Court of
Appeals for Veterans Claims has a mounting caseload of
substantial proportion. In 2003, new case filings reached an
all-time high of 2,532. That is more than 200 case filings per
month. We have a nine-member court and four vacancies. They are
not at full speed and full muscle, and it is important that
they be for the sake of our veterans.
So, I do appreciate this hearing and I do appreciate
qualified people coming before us, and I think that is what we
have in both of these folks today. I look forward to moving
them forward, giving them the attention they need, and those
who have languished seeking the attention of the full Senate. I
hope that we can, at least, fill three of those four vacancies.
Thank you very much.
Chairman Specter. Thank you, Senator Craig. The Committee
has been very, I think fairly stated, diligent in proceeding.
Senator Craig. I appreciate that.
Chairman Specter. We have had some delays which are
regrettable, but none that has been attributable to the
excellent management of Bill Tuerk, the Staff Director, who
handles me like a mannequin.
Senator Craig. And then there is another factor here, too.
One more hearing during this session of Congress would give you
that opportunity to preside and this might well be your last
opportunity before this Committee.
Chairman Specter. Well, I consider it a high calling and if
I am not here, there will be someone excellent in the wings,
like Senator Craig. But we have tried to push this along very,
very expeditiously.
Senator Craig. And it is appreciated. Thank you.
Chairman Specter. The staff work here has been really
excellent. And ``mannequin'' might be the wrong word. It might
be more like Edgar Bergen and Charlie McCarthy. The only thing
I do not read are his questions. I use my own.
General Moorman, I didn't give you a chance to make an
opening statement. Would you like to make a concluding
statement?
General Moorman. Senator, I would like to make a brief
statement, if I may.
STATEMENT OF MAJOR GENERAL WILLIAM A. MOORMAN (RET.), NOMINEE
TO BE JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS
Mr. Chairman, Members of the Committee, I am honored to
have been nominated by the President for a position on the
Court of Appeals for Veterans Claims. I want to thank you for
the opportunity to appear here today. I also want to thank
Senator Graham for his gracious introduction, and most of all
my wife, Bobbie, who is here today and has always supported me.
Thirty-three years ago this month, I entered active duty in
the Air Force with the expectation that I would complete my 4
years of obligated service and return to practice law in my
hometown of Chicago. More than 30 years later, I retired from
the Air Force in the spring of 2002
During that 30-plus years, I learned firsthand about the
extraordinary men and women who serve our country in uniform.
Shortly after my retirement, I was offered a position at the
Department of Veterans Affairs. And in the last two years, I
have learned more about the lasting sacrifices that our
veterans have made for our country. If confirmed, I pledge to
the Committee and to the Senate that I will bring all that I
have learned to my new position, where I might assure that
every veteran and every veteran's family member who comes
before the court gets the full and fair hearing to which they
are entitled.
Thank you, Mr. Chairman.
[Prepared statement of General Moorman follows:]
Prepared Statement of Major General William A. Moorman (Ret.),
Nominee to be Judge, U.S. Court of Appeals for Veterans Claims
Mr. Chairman, Members of the Committee, I am honored to have been
nominated for a seat on the Court of Appeals for Veterans Claims. Thank
you for the opportunity to appear here today.
My thanks also go to my mother and father, Mary and Jim Moorman,
who taught me to treat others as I wanted to be treated, to always act
with integrity, and to believe that hard work is always worth the
effort. I thank my mother-in-law, Junice Zook, for her always positive
outlook, no matter how dire the situation and my late father-in-law,
Roy Zook, for his service in World War II and his loving example of a
life well-led. I thank our daughter, Kelly, just for being the terrific
person she is, for marrying a great guy, and raising two marvelous
grandchildren who are a constant source of joy in our lives. Finally, I
want to thank my wife, Bobbie, who is here today, for her constant,
loving support. Without her by my side, I could not continue in public
service.
Thirty-three years ago this month, I entered active duty in the Air
Force with the expectation that I would complete my 4-year tour of duty
and return home to Chicago to practice law. More than thirty years
later, I retired from the Air Force in the spring of 2002. During that
thirty plus years, I learned firsthand about the extraordinary men and
women who serve our Country. I saw the endless demands they faced. I
saw them put duty above all else. And, I saw their families willingly
shoulder the burden of service as well.
Shortly after my retirement, I was offered a position at the
Department of Veterans Affairs. In the last 2 years, I have learned
still more about the lasting sacrifices of those who have served our
Country. I have visited with wounded soldiers at Walter Reed and I have
met veterans from every conflict since World War II. I have heard their
stories of service, and I have seen the toll their service has taken on
their health.
If confirmed, I pledge that I will bring all that I have learned
over these last thirty-three years to my new position where I might
assure that every veteran and every veteran's family member gets the
full and fair hearing concerning their claims that our Nation has
promised to each.
Thank you Mr. Chairman. I'll be happy to respond to any questions
you and the Committee may have for me.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Specter. Thank you General Moorman, and thank you,
Ms. Schoelen. We will try to act expeditiously on your
nominations. We know the need for speed so that the court will
be able to discharge its duties.
That conludes our hearing.
[Whereupon, at 2:43 p.m., the Committee adjourned.]