[Senate Hearing 108-135]
[From the U.S. Government Printing Office]
S. Hrg. 108-135, Pt. 4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JULY 22, JULY 30, SEPTEMBER 3, SEPTEMBER 17, AND OCTOBER 1, 2003
__________
Serial No. J-108-1
__________
PART 4
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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TUESDAY, JULY 22, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 267
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 269
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 6
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
PRESENTERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
presenting Steven M. Colloton, Nominee to be Circuit Judge for
the Eighth Circuit............................................. 3
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa,
presenting Steven M. Colloton, Nominee to be Circuit Judge for
the Eighth Communications...................................... 4
Leach, Hon. Jim, a Representative in Congress from the State of
Iowa, presenting Steven M. Colloton, Nominee to be Circuit
Judge for the Eighth Communications............................ 5
Myrick, Hon. Sue, a Representative in Congress from the State of
North Carolina, presenting H. Brent McKnight, Nominee to be
District Judge for the Western District of North Carolina...... 5
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama,
presenting R. David Proctor, Nominee to be District Judge for
the Northern District of Alabama............................... 9
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama
presenting R. David Proctor, Nominee to be District Judge for
the Northern District of Alabama............................... 2
STATEMENTS OF THE NOMINEES
Castel, P. Kevin, Nominee to be District Judge for the Southern
District of New York........................................... 49
Questionnaire................................................ 50
Colloton, Steven M., Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 11
Questionnaire................................................ 12
Feuerstein, Sandra J., Nominee to be District Judge for the
Eastern District of New York................................... 68
Questionnaire................................................ 69
Holwell, Richard J., Nominee to be District Judge for the
Southern District of New York.................................. 84
Questionnaire................................................ 85
McKnight, H. Brent, Nominee to be District Judge for the Western
District of North Carolina..................................... 112
Questionnaire................................................ 113
Proctor, R. David, Nominee to be District Judge for the Northern
District of Alabama............................................ 178
Questionnaire................................................ 179
Robinson, Stephen, Nominee to be District Judge for the Southern
District of New York........................................... 215
Questionnaire................................................ 216
QUESTIONS AND ANSWERS
Responses of Steven M. Colloton to questions submitted by Senator
Leahy.......................................................... 241
Responses of R. David Proctor to questions submitted by Senator
Kennedy........................................................ 245
Responses of R. David Proctor to questions submitted by Senator
Leahy.......................................................... 252
Responses of R. David Proctor to questions submitted by Senator
Sessions....................................................... 258
WEDNESDAY, JULY 30, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois, prepared statement................................... 569
Edwards, Hon. a U.S. Senator from the State of North Carolina,
prepared statement............................................. 571
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 290
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 282
prepared statement........................................... 582
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 285
prepared statement........................................... 588
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting Glen E. Conrad, Nominee to be District Judge for the
Western District of Virginia................................... 280
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Larry Alan Burns and Dana Makoto Sabraw,
Nominees to be District Judges for the Southern District of
California..................................................... 272
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina presenting Henry F. Floyd, Nominee to be District
Judge for the District of South Carolina....................... 277
Hollings, Hon. Fritz, a U.S. Senator from the State of South
Carolina presenting Henry F. Floyd, Nominee to be District
Judge for the District of South Carolina....................... 274
Rogers, Hon. Michael, a Representative in Congress from the State
of Michigan presenting Henry W. Saad, Nominee to be Circuit
Judge for the Sixth Circuit.................................... 298
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Kim R. Gibson, Nominee to be District
Judge for the Western District of Pennsylvania................. 281
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon
presenting Michael W. Mosman, Nominee to be District Judge for
the District of Oregon......................................... 279
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Kim R. Gibson, Nominee to be District
Judge for the Western District of Pennsylvania................. 276
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Glen E. Conrad, Nominee to be District Judge for the
Western District of Virginia................................... 275
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon
presenting Michael W. Mosman, Nominee to be District Judge for
the District of Oregon......................................... 278
WITNESSES
Levin, Hon. Carl, a U.S. Senator from the State of Michigan...... 292
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan. 296
STATEMENTS OF THE NOMINEES
Burns, Larry Alan, Nominee to be District Judge for the Southern
District of California......................................... 375
Questionnaire................................................ 376
Conrad, Glen E., Nominee to be District Judge for the Western
District of Virginia........................................... 397
Questionnaire................................................ 398
Floyd, Honry F., Nominee to be District Judge for the District of
South Carolina................................................. 423
Questionnaire................................................ 424
Gibson, Kim R., Nominee to be District Judge for the Western
District of Pennsylvania....................................... 457
Questionnaire................................................ 458
Mosman, Michael W., Nominee to be District Judge for the District
of Oregon...................................................... 499
Questionnaire................................................ 500
Saad, Henry W., Nominee to be Circuit Judge for the Sixth Circuit 309
Questionnaire................................................ 311
Sabraw, Dana Makoto, Nominee to be District Judge for the
Southern District of California................................ 520
Questionnaire................................................ 521
QUESTIONS AND ANSWERS
Responses of Henry Saad to questions submitted by Senator Durbin. 550
Responses of Henry Saad to questions submitted by Senator Kennedy 552
Responses of Henry Saad to questions submitted by Senator Leahy.. 560
SUBMISSIONS FOR THE RECORD
Biden, Hon. Joseph R. Jr., a U.S. Senator from the State of
Delaware, a letter to the White House.......................... 567
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, statement in support of Larry Alan Burns, Nominee
to be District Judge for the Southern District of California
and Dana Makoto Sabraw, Nominee to be District Judge for the
Southern District of California................................ 574
Levin, Hon. Carl, a U.S. Senator from the State of Michigan,
series of letters concerning Michigan judicial nominees........ 594
The State, Columbia, South Carolina, October 24, 1994, article
and attachment................................................. 601
Warner, Hon. John, a U.S. Senator from the State of Virginia
statement in support of Glen E. Conrad, Nominee to be District
Judge for the Western District of Virginia..................... 603
WEDNESDAY, SEPTEMBER 3, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 607
prepared statements.......................................... 817
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 821
PRESENTERS
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado
presenting Phillip S. Figa, Nominee to be District Judge for
the District of Colorado....................................... 616
Boxer, Hon. Barbara, a U.S. Senator from the State of California
presenting Carlos T. Bea, Nominee to be Circuit Judge for the
Ninth Circuit, William Q. Hayes, Nominee to be District Judge
for the Southern District of California and John A. Houston,
Nominee to be District Judge for the Southern District of
California..................................................... 610
Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of
Colorado presenting Phillip S. Figa, Nominee to be District
Judge for the District of Colorado............................. 613
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Marcia A. Crone, Nominee to be District Judge for
the Eastern District of Texas.................................. 779
Ensign, Hon. John, a U.S. Senator from the State of Nevada
presenting Robert Clive Jones, Nominee to be District Judge for
the District of Nevada......................................... 609
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Marcia A. Crone, Nominee to be District Judge
for the Eastern District of Texas.............................. 615
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma
presenting Ronald A. White, Nominee to be District Judge for
the Eastern District of Oklahoma............................... 608
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting Robert Clive Jones, Nominee to be District Judge for
the District of Nevada......................................... 612
STATEMENTS OF THE NOMINEES
Bea, Carlos T., Nominee to be Circuit Judge for the Ninth Circuit 618
Questionnaire................................................ 619
Crone, Marcia A., Nominee to be District Judge for the Eastern
District of Texas.............................................. 648
Questionnaire................................................ 649
Figa, Phillip S., Nominee to be District Judge for the District
of Colorado.................................................... 668
Questionnaire................................................ 669
Hayes, William Q., Nominee to be District Judge for the Southern
District of California......................................... 689
Questionnaire................................................ 690
Houston, John A., Nominee to be District Judge for the Southern
District of California......................................... 718
Questionnaire................................................ 719
Jones, Robert Clive, Nominee to be District Judge for the
District of Nevada............................................. 748
Questionnaire................................................ 749
White, Ronald A., Nominee to be District Judge for the Eastern
District of Oklahoma........................................... 761
Questionnaire................................................ 762
QUESTIONS AND ANSWERS
Responses of Carlos Bea to questions submitted by Senator Leahy.. 782
SUBMISSIONS FOR THE RECORD
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado,
statement in support of Phillip S. Figa, Nominee to be District
Judge for the District of Colorado............................. 786
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
statement in support of Carlos T. Bea, Nominee to be Circuit
Judge for the Ninth Circuit, William Q. Hayes, Nominee to be
District Judge for the Southern District of California and John
A. Houston, Nominee to be District Judge for the Southern
District of California......................................... 787
Brown, Willie L., Jr., Mayor, San Francisco, California, letter.. 791
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
statement in support of Marcia A. Crone, Nominee to be District
Judge for the Eastern District of Texas........................ 792
DenverPost.com Denver, Colorado, June 12, 2002, article.......... 793
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, statement in support of William Q. Hayes, Nominee
to be District Judge for the Southern District of California
and John A. Houston, Nominee to be District Judge for the
Southern District of California................................ 795
German, G. Michael, San Francisco, California, letter............ 802
Goldsmith, Ernest H., Judge of the Superior Court of Claifornia,
City and County of San Francisco, San Francisco, California,
letter and attachments......................................... 803
Hall, Tony, Supervisor, 7th District, San Francisco, California,
letter......................................................... 815
Hardeman, Michael E., Business Representative, Sign Display &
Allied Crafts Local Union 510, San Francisco, California,
letter......................................................... 816
Mahoney, Patrick J., Judge, Superiror Court of California, San
Francisco, California, letter and attachments.................. 823
Mexican American Legal Defense and Educational Fund, press
release........................................................ 824
Migden, Carole, Chairwoman, State Board of Equalization,
Sacramento, California, letter................................. 825
Moreno, Carlos R., Associate Justice, Supreme Court of
California, San Francisco, California, letter.................. 826
Reid, Hon. Harry, a U.S. Senator from the State of Nevada,
statement in support of Robert Clive Jones, Nominee to be
District Judge for the District of Nevada...................... 827
San Francisco Labor Council, AFL-CIO, Walter L. Johnson,
Secretary-Treasurer, San Francisco, California, letter......... 828
San Francisco La Raza Lawyers Association, Suzanne G. Rames,
Chairperson, Judiciary Committee, San Francisco, California,
letter......................................................... 829
San Francisco Police Officers Association, Chris Cunnie,
President, San Francisco, California, letter................... 831
SEIU, Local 790, Latino Caucus, Ricardo Lopez, Chair, Oakland,
California, letter............................................. 832
WEDNESDAY, SEPTEMBER 17, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 833
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 984
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 986
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting George W. Miller, Nominee to be Judge for the U.S.
Court of Federal Claims........................................ 834
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland
presenting Roger W. Titus, Nominee to be District Judge for the
District of Maryland........................................... 835
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland
presenting Roger W. Titus, Nominee to be District Judge for the
District of Maryland........................................... 837
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting Margaret Catharine Rodgers, Nominee to be District
Judge for the Northern District of Florida..................... 838
STATEMENTS OF THE NOMINEES
Miller, George W., Nominee to be U.S. Court of Federal Claims.... 911
Questionnaire................................................ 912
Rodgers, Margaret Catharine, Nominee to be District Judge for the
Northern District of Florida................................... 839
Questionnaire................................................ 841
Titus, Roger W., Nominee to be District Judge for the District of
Maryland....................................................... 874
Questionnaire................................................ 876
QUESTIONS AND ANSWERS
Responses of George W. Miller to questions submitted by Senator
Leahy.......................................................... 963
Responses of George W. Miller to questions submitted by Senator
Durbin......................................................... 974
WEDNESDAY, OCTOBER 1, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 1082
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 989
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1095
PRESENTER
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Dora L. Irizarry, Nominee to be District Judge
for the Eastern District of New York........................... 990
STATEMENT OF THE NOMINEE
Irizarry, Dora L., Nominee to be District Judge for the Eastern
District of New York........................................... 993
Questionnaire................................................ 994
WITNESSES
Castro-Blanco, James F., Immediate Past President, Puerto Rican
Bar Association, New York New York............................. 1052
Douglass, Lewis L., Justice, New York State Supreme Court, and
Chair, New York State Commission on Minorities................. 1053
Hayward, Thomas Z., Jr., Chair Standing Committee on Federal
Judiciary, American Bar Association, Washington, D.C., and
Patricia M. Hynes, Former Chair, Standing Committee on Federal
Judiciary, American Bar Association, Washington, D.C........... 1046
Pesce, Michael L., Presiding Justice, Appellate Term, New York
State Supreme Court, Second and Eleventh Districts............. 1054
QUESTIONS AND ANSWERS
Responses of Dora L. Irizarry to questions submitted by Senator
Durbin......................................................... 1059
Responses of Patricia Hynes and Thomas Hayward, Jr. to questions
submitted by Senator Durbin.................................... 1067
SUBMISSIONS FOR THE RECORD
Brennan, Bridget G., Special Narcotics Prosecutor, City of New
York, New York, New York, letter............................... 1072
Castro-Blanco, James F., Immediate Past President, Puerto Rican
Bar Association, New York New York:
prepared statement........................................... 1074
letter, September 28, 2003................................... 1077
Douglass, Lewis L., Justice, New York State Supreme Court, and
Chair, New York State Commission on Minorities, prepared
statement...................................................... 1079
Hayward, Thomas Z., Jr., Chair Standing Committee on Federal
Judiciary, American Bar Association, Washington, D.C., and
Patricia M. Hynes, Former Chair, Standing Committee on Federal
Judiciary, American Bar Association, Washington, D.C., prepared
statement...................................................... 1085
Johnson, Sterling, Jr., Senior District Judge, Eastern District
of New York, Brooklyn, New York, letter........................ 1099
Pesce, Michael L., Presiding Justice, Appellate Term, New York
State Supreme Court, Second and Eleventh Districts, letter..... 1101
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ALPHABETICAL LIST OF NOMINEES
Bea, Carlos T., Nominee to be Circuit Judge for the Ninth Circuit 618
Burns, Larry Alan, Nominee to be District Judge for the Souther
District of California......................................... 375
Castel, P. Kevin, Nominee to be District Judge for the Southern
District of New York........................................... 49
Colloton, Steven M., Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 11
Conrad, Glen E., Nominee to be District Judge for the Western
District of Virginia........................................... 397
Crone, Marcia A., Nominee to be District Judge for the Eastern
District of Texas.............................................. 648
Feuerstein, Sandra J., Nominee to be District Judge for the
Eastern District of New York................................... 68
Figa, Phillip S., Nominee to be District Judge for the District
of Colorado.................................................... 668
Floyd, Honry F., Nominee to be District Judge for the District of
South Carolina................................................. 423
Gibson, Kim R., Nominee to be District Judge for the Western
District of Pennsylvania....................................... 457
Hayes, William Q., Nominee to be District Judge for the Southern
District of California......................................... 689
Holwell, Richard J., Nominee to be District Judge for the
Southern District of New York.................................. 84
Houston, John A., Nominee to be District Judge for the Southern
District of California......................................... 718
Irizarry, Dora L., Nominee to be District Judge for the Eastern
District of New York........................................... 993
Jones, Robert Clive, Nominee to be District Judge for the
District of Nevada............................................. 748
McKnight, H. Brent, Nominee to be District Judge for the Western
District of North Carolina..................................... 112
Miller, George W., Nominee to be U.S. Court of Federal Claims.... 911
Mosman, Michael W., Nominee to be District Judge for the District
of Oregon...................................................... 499
Proctor, R. David, Nominee to be District Judge for the Northern
District of Alabama............................................ 178
Robinson, Stephen, Nominee to be District Judge for the Southern
District of New York........................................... 215
Rodgers, Margaret Catharine, Nominee to be District Judge for the
Northern District of Florida................................... 839
Saad, Henry W., Nominee to be circuit Judge for the Sixth Circuit 309
Sabraw, Dana Makoto, Nominee to be District Judge for the Sothern
District of California......................................... 520
Titus, Roger W., Nominee to be District Judge for the District of
Maryland....................................................... 874
White, Ronald A., Nominee to be District Judge for the Eastern
District of Oklahoma........................................... 761
NOMINATIONS OF STEVEN M. COLLOTON, OF IOWA, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT; P. KEVIN CASTEL, OF NEW YORK, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; SANDRA J.
FEUERSTEIN, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF NEW YORK; RICHARD J. HOLWELL, OF NEW YORK, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; H. BRENT
MCKNIGHT, OF NORTH CAROLINA, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF NORTH CAROLINA; R. DAVID PROCTOR, OF ALABAMA,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA; AND
STEPHEN C. ROBINSON, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF NEW YORK
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TUESDAY, JULY 22, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions
presiding.
Present: Senators Sessions, Grassley, and Schumer.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator Sessions. Good morning. We are delighted you are
here today, and we have a nice agenda of nominees. I am glad to
have as Ranking Member for this Committee today Senator Chuck
Schumer with us. He is the Ranking Member of the Courts
Subcommittee also, on which we have worked together on a number
of issues.
Our tradition, since we have Members of Congress here,
would be to start with the Senate Members, and I see Senator
Shelby, my colleague from Alabama, here and I know that you
have some remarks to make about the nominee for the district
court in Alabama. So I would recognize my colleague, Senator
Richard Shelby.
PRESENTATION OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. RICHARD SHELBY, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Shelby. Chairman, Senator Schumer, I will be very
brief, but I think this is very important. I want to commend
you, Mr. Chairman, for getting this hearing together.
I appreciate the opportunity to appear before the Committee
today to introduce David Proctor, the President's nominee for
the United States District Court for the Northern District of
Alabama. Concentrating in labor and employment law, David is an
experienced and skilled attorney with an impressive record of
trying cases in both the Federal and State courts. He has
served a broad range of individual and corporate clients while
also representing the State of Alabama, my State, in various
matters.
David is also active in the community, having served on the
board of Alabama Goodwill Industries for a dozen years, while
also remaining active in his church and the lives of his wife,
Teresa, who is here with him today, and his three children.
Luke is here; he is 12 years old. Jake is 8. And Shelly Grace
is 5, but tomorrow, Mr. Chairman, will be her birthday; she
will be 6 years old tomorrow.
I and all who know David Proctor have high regard for his
intellect and integrity, and I believe that he will make a fine
addition to the Federal bench. Most importantly, Mr. Chairman,
David Proctor is a man of the law. He understands and respects
the constitutional role of the judiciary and specifically the
role of the Federal courts in our legal system. I am confident
that he would serve honorably and apply the law with
impartiality and fairness and, thus, I support his confirmation
without any reservation.
Again, Mr. Chairman, I thank you for holding today's
hearing on David Proctor's nomination. I urge the Committee to
expeditiously report this nomination to the full Senate where
we can hopefully move it. And, Mr. Chairman, I have some other
meetings, and if I could leave at this time, I appreciate the
time of both of you. Thanks.
Senator Sessions. Thank you, Senator Shelby.
Senator Grassley, would you like to make comments on the
Iowa nominee?
Senator Grassley. Yes, I sure do, obviously.
Senator Sessions. You are sitting at that table. You could
be sitting up here on my right where you normally sit on this
Judiciary panel.
Senator Grassley. Don't take it personally.
Senator Sessions. All in all, it is better on this side
than down there, normally. Trust me.
PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT, BY HON. CHARLES E. GRASSLEY, A U.S.
SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Mr. Chairman, Senator Schumer.
I am pleased to be here today to introduce Steve Colloton, who
has been nominated by President Bush to be a Federal judge on
the U.S. Circuit Court of Appeals for the Eighth Circuit. He is
an outstanding individual with an extensive record of public
service and an impressive legal career. Steve Colloton will
make an excellent Federal judge, and I am happy to support his
nomination. He is here with family members and friends who are
extremely proud of the work that he has done throughout his
lifetime in the law and in community service, and they are here
to support him.
I have known some of the family for a long, long period of
time, and he comes from a sound background that is also
probably as much to do with his capabilities of being a good
judge as his understanding of the law.
He hails from Iowa City, Iowa, a graduate of Princeton and
Yale Law School. I have never held that against him.
[Laughter.]
Senator Grassley. He went on to serve as a law clerk to
Judge Laurence Silberman, U.S. Court of Appeals, D.C., and then
as a law clerk to Hon. William Rehnquist, Chief Justice. After
that, he worked as an attorney with the Office of Legal Counsel
at the Justice Department, and then as Assistant U.S. Attorney
in the Northern District of Iowa 8 years, with a brief detail
as an associate independent counsel in the Office of
Independent Counsel. He went on to become a partner in a
prominent law firm in Des Moines where he managed a wide range
of civil litigation.
Steve Colloton returned to Government service right after
the 9/11 terrorist attacks when he was unanimously confirmed by
the Senate to the position of U.S. Attorney in the Southern
District of Iowa. In that job, he has focused on making sure
that we get the bad guys, but at the same time, he has made
sure to protect the civil liberties that are so dear to us.
In addition to fighting terrorism, Steve has focused his
efforts on combating crime and enforcing drug laws.
Specifically, under Steve Colloton's direction, the Iowa U.S.
Attorney's office has worked hard to implement the Project Safe
Neighborhood Program to reduce gun violence and has conducted
extensive training for prosecutors and local law enforcement
regarding the prohibition of firearms possession by domestic
abusers. Steve Colloton has also made child support enforcement
a top priority, forming a task force with State and Federal
child support recovery workers and investigators.
In addition to his stellar legal experience and remarkable
public service, Steve Colloton has many strong supporters. Let
me give you some examples of the support he has received from
fellow Iowans.
Twenty-seven past presidents of the Iowa State Bar wrote,
``The exceptional quality of Mr. Colloton's experience,
together with its relevance to this position, uniquely
qualifies him to represent Iowa on the United States Court of
Appeals.''
A member of the Polk County Chiefs of Police and Sheriffs
Association wrote, and I quote, ``Steve Colloton is the right
choice for the Eighth Circuit judge position, and we fully
endorse President Bush's nomination.''
The interim president of the University of Iowa wrote, and
I quote, ``Mr. Colloton is a person of highest ethical
standards and integrity and would be''--and I continue to quote
then--``a superb member of the Court of Appeals for the Eighth
Circuit.''
Drake University Professor of Law Gregory Sisk wrote,
``Steve Colloton is one of the brightest and most thoughtful,
hardworking, scholarly, and yet simultaneously practically
minded attorneys likely to be nominated for any judicial
position in this State.''
Even people who have worked on the other side of Steve
Colloton think highly of him. For example, the attorney for Jim
Guy Tucker, George Collins, wrote the Judiciary Committee, and
I quote, ``I am convinced Steve Colloton is an honorable man
and that when cases come before him, he will call them as he
sees them. I do not think that a conservative litigant
demonstrably as such will have any better chance before him
than any other litigant. I believe that his cases will be
decided on the law and, to the extent applicable, the facts. I
respect Steve Colloton and hope that your Committee will also
respect him and approve the appointment.''
These letters of support show how much confidence people
have that Steve Colloton will make a great Federal judge.
As I have said on many occasions in the past, there are a
number of things that I look for when I assess whether an
individual should be a Federal judge. I asked whether the
judicial nominee has the requisite intellect, knowledge,
integrity, and judicial temperament to serve on the Federal
bench. In addition, I ask whether a particular judicial nominee
will follow the law. That is the text and intent of the
Constitution and the statutes ratified and enacted. I believe
that Steve Colloton has all of these qualifications. I believe
that he will follow the law and have a healthy respect for case
precedent. And I also believe that he understands the role of a
judge is to interpret the law rather than create it.
In sum, I strongly believe that Steve Colloton will make an
excellent judge of the Eighth Circuit. I urge my colleagues to
join me in supporting this excellent candidate for the Federal
bench.
Senator Sessions. Thank you, Senator Grassley.
Senator Harkin?
PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT, BY HON. TOM HARKIN, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Harkin. Thank you very much, Mr. Chairman, for
holding this hearing, and I am pleased to be here with my Iowa
colleagues to introduce Steve Colloton, who has been nominated
to serve on the Eighth Circuit Court of Appeals.
Steve Colloton, as my colleague has said, is a Yale Law
School graduate, has been Iowa's U.S. Attorney in Des Moines
since November of 2001. Before then, he practiced law for
Belin, Lamson, McCormick, Zumbach, and Flynn in Des Moines. He
has also served as an Assistant U.S. Attorney in Cedar Rapids
for 6 years. Early in his legal career, he clerked for Supreme
Court Chief Justice William Rehnquist.
As Senator Grassley has said, I have known his family in
Iowa City for a number of years. Mr. Chairman, I supported
Steve Colloton's nomination to be U.S. Attorney in 2001, and I
urge the Committee to give his nomination to the Eighth Circuit
Court of Appeals full and fair and expedient consideration. And
I hope and I trust, Mr. Chairman, that this Committee and the
United States Senate will treat Mr. Colloton more fairly and
judiciously than it did the last nominee from the State of Iowa
to the Eighth Circuit Court of Appeals, Bonnie Campbell, who
was not even given the privilege of a vote on the Senate floor.
I hope this nominee will be treated more fairly.
This concludes my statement, and I want to again thank the
Chairman for holding this hearing.
Senator Sessions. Thank you, Senator Harkin.
Congressman Leach?
PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT, BY HON. JIM LEACH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IOWA
Representative Leach. Well, thank you, Mr. Chairman, Mr.
Schumer. Let me just say I am honored to be with my two
colleagues from Iowa. I will be very brief.
I come before the Committee not only as not a member of the
body but not a member of the Judiciary Committee and not
trained in the field of law. But I do want to give a sense of
community support for Steve Colloton. Steve and I come from the
same home town, myself more recently than he, but I have known
Steve for some 20 years. He comes from one of the most
respected families in Iowa. He as an individual has an
exceedingly high intellect, great integrity, decency of
judgment, fair-mindedness, common sense, respect for the law,
and I am truly impressed with, in my knowledge of Steve, what a
natural judicious temperament he has. I personally believe he
is one of the strongest court nominees in memory and will
embellish the court, and I would hope the Committee gives Steve
every benefit of the doubt.
Thank you all.
Senator Sessions. Thank you, Congressman Leach, for those
good words, and we appreciate your service to the country, and
we are glad that you could join us today.
Representative Myrick, it is a delight to have you with us.
I know you want to share your thoughts about the nominee.
PRESENTATION OF H. BRENT MCKNIGHT, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. SUE MYRICK,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA
Representative Myrick. Yes, thank you very much, Chairman
and Senator Schumer. I appreciate the opportunity to be here.
Both of our North Carolina Senators are out of town today, and
so I have the honor of introducing to you Brent McKnight and
his family and his friends. He has been nominated for a Federal
judgeship in North Carolina from the Charlotte area.
Brent has a very impressive resume, which I am sure you
have seen and I will not go into detail, but I will just simply
say to you he was a Rhodes Scholar, which I found very, very
helpful for what he does right now. He is a friend in the sense
that I have known Brent for a long time. He is one of those
people that you would be very hard pressed to find anybody in
our community who has bad things to say about him. He is
extremely well respected throughout the community, not just the
judicial community, because he currently serves as a judge, but
the community as a whole. And he has impeccable character, and
he has a very strong intellect. But the thing that impresses me
about him is he has common sense as well, and he gets along
very well with people. Brent relates well with people, which is
very important with what he does as a judge.
He also very carefully evaluates his opinions, and you will
find again in our community that the people who work in the
judicial system will tell you he is impartial in his decisions.
He does what is best.
So North Carolina would be very fortunate to have him as a
Federal judge, and I hope this Committee will see its way able
to send the nomination forward to the full Senate. And, again,
I appreciate the opportunity to be here today, and I am going
to take leave, if that is permissible with you.
Senator Sessions. That will be fine, Representative Myrick.
And I would note, I wonder if you would agree with Senator
Elizabeth Dole, likewise highly complimentary of Mr. McKnight,
and she submitted a statement for the record noting that, yes,
he was a Rhodes Scholar, but perhaps even impressive to those
in North Carolina, a Morehead Scholar at the University of
North Carolina, Chapel Hill, which is quite a prestigious
event, too.
Representative Myrick. Very, very important in our State
and nationally. Thank you for mentioning that.
Senator Sessions. Thank you very much. I will offer to put
her statement in the record.
Senator Schumer, would you like to make any opening
comments?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I want to thank
all of our colleagues in the House and Senate and you, Mr.
Chairman, for holding these hearings.
Before I begin, Senator Edwards could not be here to
introduce Brent McKnight, and he expresses his regrets. And I
would ask unanimous consent that his statement in favor of Mr.
McKnight be put in the record.
Senator Sessions. Without objection, yes.
Senator Schumer. And also Senator Leahy's statement on the
nominees be put in the record.
Senator Sessions. Without objection, they will be made a
part of the record.
Senator Schumer. Thank you, Mr. Chairman. And now I want to
thank you for holding this hearing today and agreeing to put
the four New York nominees on the agenda. This is a fine day
for New York. Normally we abide by a rule that requires a week
from completion of paperwork to a nominee being eligible for a
hearing. But you and Senator Leahy were willing to waive the
rule so that these four outstanding nominees could appear
before us today.
The rule could be waived because these four nominees are
not only excellent and moderate and diverse--those are my three
standards for choosing judges--but because they have broad
bipartisan support, including, most importantly, support from
their two Senators, myself and Senator Clinton, the White
House, and our Governor, Governor Pataki. So this is a
bipartisan day, and that is how it ought to be when we choose
judges. It is a stark contrast between the pitched battles we
are fighting over nominees from other parts of the country.
Stephen Robinson, Kevin Castel, Richard Holwell, and Sandra
Feuerstein are very moderates. When you look at these four
nominees' records, you have a hard time identifying even one
remark that looks like it comes from an ideologue or an
extremist.
As I said, I do not believe ideologues, whether from the
far left or the far right, are good fits for the bench.
Ideologues tend to want to make the law, not interpret the law,
as the Founding Fathers in their--I think this is a statement
usually used in reference to the deity, but in their infinite
wisdom. I am so impressing with the Founding Fathers the more I
am around that it comes close.
Anyway, that is what they wanted judges to do, interpret
the law, not make law. And when you have people at the
extremes, they feel with passion, God bless them, that is part
of America. But they do not tend to make good judges because
they want to impose their views on what the law should be.
These judges meet my three criteria for the judges that I am
involved in selecting: excellence, legal excellence, all four
have it. Moderation, as I said, none are at the extremes. And
diversity, they are not--each individual is not diverse, but as
a group of four, they are quite diverse, Mr. Chairman. And so
this gang of four gets high marks on all categories.
Mr. Chairman, over the past several weeks, Governor Pataki,
Counsel Gonzales, and I have been able to put the finishing
touches on an agreement that ensures that all of New York's
current and immediately forthcoming vacancies will be quickly
filled and with judges who will do justice for all New Yorkers.
If you compare our agreement to a trade between baseball teams,
it is one of those deals where everyone wins, most particularly
and most importantly, the people of New York.
These four fine candidates will be followed by two more who
have already been nominated, two we have all already agreed
upon, and a fifth judge to be named later. And every one of
them will be great additions to New York's Federal bench.
Now, first I want to mention that Senator Clinton had a
scheduling conflict that prevents her from being here today,
but I have talked to her and I know she joins me in thanking
the White House and Governor Pataki for not playing politics
with New York's bench. And I am proud to have played a role in
putting these four candidates on the court.
Mr. Chairman, I would note that the Senate has now
confirmed 138 of President Bush's judicial nominees. By the end
of the week, it could add up to 145. And before the August
recess, if we are lucky, all four of these New Yorkers will be
confirmed, and our total for President Bush will be over 150.
So for those keeping score back home, we have confirmed 150; we
have blocked two. We may block a few more, but even so, Yankee
fans would be envious of that kind of win-loss record. And we
are doing pretty good this year, except for those Atlanta
Braves. I don't know if you root for them from the State next
door.
Senator Sessions. Yes, I do.
Senator Schumer. We have the next best record in baseball.
Anyway, when you look at those numbers and you look at the
quality of the nominees we have produced in New York, you have
got proof positive there is no obstruction going on from our
side of the aisle. We are working hard to fill the Federal
judiciary with the best judges out there, but we have to draw
the line at nominees who want to make law, not interpret it.
These four nominees are the best evidence of what happens
when a bipartisan process works right. Let me introduce each of
them briefly and present their credentials to the Committee.
Richard J. Holwell, 56, has practiced for over three
decades as a litigation attorney with White and Case in New
York, where he acts as the executive partner in charge of the
firm's global litigation practice. Mr. Holwell is a 1967
graduate of Villanova University and a 1970 cum laude graduate
of the Columbia Law School. After law school, he studied at
Cambridge University on the Columbia-Cambridge fellowship in
criminology, and he received a diploma in criminology from
Cambridge University in 1971. He is currently a member of the
American Bar Association, the New York State Bar Association,
and the Law Society in London. He currently serves as
chairperson of a panel of the New York State Supreme Court
Departmental Disciplinary Committee. He is married, his wife is
here, and he has two daughters.
P. Kevin Castel celebrates his 53rd birthday in 2 weeks and
was born in Jamaica, New York. That means Queens. He received
his B.S. and J.D. both from St. John's, also in Queens. He
began his professional career as a law clerk to Hon. Kevin
Duffy in the Southern District of New York, before joining the
law firm of Cahill, Gordon and Reindel, where he has been a
partner since 1983, serving for several years as the firm's
administrative partner. Over the years, Mr. Castel has been
involved in an array of civic activities, including service on
the Legal Aid Board of Directors. He and his wife, Patricia,
have been married for 26 years, and they have two lovely
daughters who we are fortunate to have with us here today.
Stephen C. Robinson, 46, was born in Brooklyn--that is a
very good credential, as far as I am concerned--and received
both his B.A. and J.D. from Cornell. After spending several
years in private practice, he joined the U.S. Attorney's Office
for the Southern District of New York. Mr. Robinson went on to
spend a few years as managing director and associate general
counsel of Kroll Associates before being tapped to be principal
deputy counsel and special assistant to the Director of the
FBI. From 1995 to 1998, he was counsel and chief compliance
officer at Aetna Insurance. With the support from Senators Dodd
and Lieberman, President Clinton then made this great New
Yorker the U.S. Attorney for the District of Connecticut, where
he served from 1998 to 2001. Mr. Robinson's wife, Kathleen
Sullivan, was a professor at Yale Law School, and she passed
away a few years ago. He has done--and I know this because I
have talked with him personally about it--a wonderful job
raising their daughter as a single dad, and I know that
Kathleen would be tremendously proud of the job Stephen has
done as a father and that she is smiling down on us today.
And, finally, Sandra J. Feuerstein has spent 15 years as a
judge in the courts of New York State. She has a distinguished
record of judicial service in New York. Since 1999, Judge
Feuerstein has served as an Associate Justice of the New York
State Supreme Court Appellate Division. From 1994 to 1999, she
served as a Justice of the New York State Supreme Court, and
from 1987 to 1993 as a judge in the Nassau County District
Court. Since 1998, Justice Feuerstein has served as an adjunct
professor of law at Hofstra University School of Law. Prior to
joining the State bench, Justice Feuerstein served for 2 years
as a law clerk to Hon. Leo H. McGinity. He is administrative
judge of the State Supreme Court in Nassau County.
In addition to all that legal experience, she was a public
school teacher in the New York State Public Schools from 1966
to 1971. She attended the University of Vermont and Benjamin N.
Cardozo School of Law, where she graduated cum laude.
Justice Feuerstein has a distinguished record of service as
a judge beyond her work on the bench. In addition to her other
major roles, she has served as the president of the Nassau
County Women's Bar Association and vice president of the New
York State Women's Judges Association. Among other honors, she
has been named Judge of the Year by the Long Beach Lawyers
Association and Woman of the Year by the Merrick Chamber of
Commerce.
All four of the nominees--Stephen Robinson, Kevin Castel,
Richard Holwell, and Sandra Feuerstein--are here with their
families and friends. I want them all to know how proud we all
are of their accomplishments and how honored I am to have
played a role in their ascending to New York's Federal bench.
Thank you, Mr. Chairman.
PRESENTATION OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. JEFF SESSIONS, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Chuck, and those were good
words indeed. And I know that the New York bench will benefit
from having four new judges there. You have a lot of important
cases in that district, and always have over the years, and it
is always maintained a reputation of legal excellence.
I hope that my colleague does not believe that an advocate
who has fought for truth and justice is not a moderate and,
therefore, cannot be a judge. But the nominee--
Senator Schumer. Any particular names in mind?
Senator Sessions. Well, I have one in mind who I believe
has stood firm for truth and justice, and I do not think he is
in any way an ideologue or unqualified for the bench.
But the nominee that I would like to call our attention to
today and speak of highly is, maybe more in your style, not
someone that has been involved politically or active in any way
of that kind, but he has all the necessary traits to make an
outstanding jurist on the Federal bench. I have known David
Proctor for a number of years, and I have followed his career.
He is one of the more respected lawyers in the Birmingham legal
community and throughout the State, really, on all sides of the
bar. He is a working, practicing lawyer. This is undoubtedly
attributed to his excellent work ethic, honesty, and dedication
to the rule of law.
Attorneys that I have personally spoken with describe him
as level-headed, fair-minded, trustworthy, and highly
intelligent. He will prove to be an invaluable asset to the
very busy Northern District of Alabama and to our country.
David's past offers strong evidence of his future promise.
He received his bachelor's degree from Carson-Newman. In 1986,
he graduated with honors from the University of Tennessee
School of Law, where he was a member of the Law Review.
Immediately after graduating from school, he clerked for Hon.
H. Emory Widener, Jr., on the Fourth Circuit Court of Appeals.
So, in addition to practicing in the Federal district courts,
he has learned from firsthand experience the role a Federal
judge must play in the appellate level and in maintaining a
docket. This experience cannot be gleaned from any other
source.
After his clerkship, he spent 6 years with one of Alabama's
finest law firms, Sirote and Permutt. Thereafter, he began his
own firm, Lahr, Middlebrooks, Price and Proctor. For almost 20
years, David has served numerous clients and handled a wide
range of challenging civil issues. David understands the
Federal courtroom, having litigated approximately 300 cases in
Federal court alone, some of which proceeded to verdict after
full trial.
From all these experiences, he has learned how lawyers and
litigants should be treated at trial, and this is important to
me. This conclusion is confirmed by the broad support David has
earned for his nomination.
I would like to quote from a letter submitted to me by one
of the State's most successful trial lawyers, a strong
Democrat, Jerry Beasley, a leading trial lawyer in the State
and one of the most successful in the Nation. Although Mr.
Proctor is a defense lawyer and was generally arguing in
positions in opposition to Mr. Beasley, Mr. Beasley had this to
say about David Proctor: ``I have known David Proctor for
several years, and he will make an outstanding addition to the
Federal bench. He is a man of high moral character and
unquestioned integrity. His evenhanded temperament and keen
knowledge of the law make him well suited for the position.''
The praise does not end there. Andrew Allen, a prominent
civil rights lawyer in Birmingham, offered the following
support: ``Although I am a lifelong Democrat and though I have
litigated against David Proctor and his firm for almost 15
years, I write this letter on behalf of David in support of his
nomination to serve as United States District Judge for the
Northern District of Alabama. I strongly support his nomination
because he is a man of high moral character, unquestioned
integrity, keen intellect, even temperament, and superior work
ethic.''
Those are good qualities in a judge. In sum, I believe he
will make an outstanding addition to the Federal bench and that
he will ensure an even playing field for all who come before
him. He has deep roots in the community, which from 1989 to
2000 he served on the board of the Alabama Goodwill Industries,
which provides employment opportunities for persons with
disabilities. He has also volunteered countless pro bono hours
for A Baby's Place, a home for HIV-positive children. Still
other charitable organization have benefited from his
dedication, and he is a deacon at Briarwood Presbyterian
Church. His involvement in the community demonstrates a
commitment to public welfare, a trait that will serve him well
as a judge. He has a reputation for integrity, and I believe he
will be a welcome addition to a bench that needs some
additional support at this time. And I think he is a
professional, is experienced, he works well with people. He can
manage a caseload, as all of you judges are going to be called
upon to do, and that strong work ethic.
At one time, Mr. Chairman, you know, people thought you
could be a Federal judge and maybe ease off into retirement.
But it is a busy, tough job today. If you are not prepared to
work, you do not need the job.
All right. Anything else we need to do? I would call up--
well, no. First, U.S. Attorney Steve Colloton, since he is the
court of appeals nominee, we will start with you first, if you
will raise your right hand and take this oath. Do you swear or
affirm that the testimony you are about to give will be the
truth, the whole truth, and nothing but the truth, so help you
God?
Mr. Colloton. I do.
Senator Sessions. All right. You may take a seat.
If you would like to make an opening statement or introduce
your family, we would be pleased to hear from you at this time.
STATEMENT OF STEVEN M. COLLOTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT
Mr. Colloton. Thank you, Mr. Chairman. I have no formal
statement, but I do want to thank the Committee for convening
this hearing. I would like to thank Senator Grassley and
Senator Harkin and Congressman Leach for introducing me here
this morning.
I would, if I may, like to introduce my family. I am joined
today by my wife, Deborah, my sisters, Laura and Ann. My
parents came out from Iowa, John and Mary Ann Colloton, and my
brother-in-law, Chip and my sister-in-law Wendy are here.
Senator Sessions. Maybe they will stand for us. We just
want to see you all.
Senator Schumer. Very nice.
Senator Sessions. We are glad you are here from Iowa, and
other places I assume.
Anything else?
Mr. Colloton. No, that is all. Thank you for that
opportunity, Mr. Chairman.
[The biographical information of Mr. Colloton follows:]
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Senator Sessions. Mr. Colloton, I appreciate the fact that
you are a United States Attorney, having had that job myself
for a number of years. Do you think that is a good experience
for you for the office that you are seeking, the Court of
Appeals?
Mr. Colloton. I do, Senator. I thank you for the question
and appreciate your comments about the United States Attorney
job. It has been for me a fine experience in which I have been
able to continue my contribution to public service. I have been
privy, of course, to a wide range of litigation in both
criminal and civil areas in that capacity, and I have also had
a better chance to really understand the administration of
justice from a management level in that capacity, so I think in
all those ways it has been a helpful preparatory experience.
Senator Sessions. Were you an Assistant United States
Attorney in Iowa, there?
Mr. Colloton. I was, Senator.
Senator Sessions. How long?
Mr. Colloton. From about 1991 to 1999, so about 8 years in
the Northern District of Iowa, and now I am the United States
Attorney in the Southern District, the partner district in the
State.
Senator Sessions. Of course, all of your practice as an
Assistant United States Attorney was in Federal Court before
Federal Judges, or virtually all of it. Tell me about any
observations you have about things you would like to do that
you think could make the legal system better? Do you have any
insights that you have gained over the years?
Mr. Colloton. Well, Senator, I think particularly in Iowa
where we are fortunate to have a strong Federal bench and a
good solid bar, I believe civility among attorneys, civility
among the bar is an issue that's always important to lawyers,
and I think that we have an opportunity to grow in that area
through bar relationships, bench/bar relationships. So that is
one area that I would focus on and suggest would be an
important area.
Senator Sessions. You were the appellate coordinator in the
United States Attorney's Office in the Northern District when
you were an assistant; is that correct, the appellate
coordinator and handled appellate work while you were there?
What court was that in, and do you think that experience would
be beneficial to you in this job?
Mr. Colloton. Yes, Senator, I do. During my service as an
Assistant United States Attorney I ultimately was asked to
serve in that capacity as the coordinator of appellate
litigation for the U.S. Attorney in the Northern District of
Iowa. This was toward the end of my service in the late 1990's,
and that gave me an opportunity to manage a range of litigation
within the office to appear with some regularity before the
United States Court of Appeals for the Eighth Circuit, which is
the court to which I've been nominated, and I think that among
other experiences I've had was a very useful and germane
experience in preparing me for this potential service if I'm so
fortunate to be approved.
Senator Sessions. You have been a litigator. Do you think
bringing that experience to the Court of Appeals might be
helpful in some instances? Do you think in your experience,
have there been times when you think the appellate court might
not have quite captured the essence of what was occurring in
the courtroom?
Mr. Colloton. Well, far be it from me to say that about a
court of appeals, Senator Sessions, but I do think that
experience as a member of the practicing bar and for judges
sometimes that come from the practicing bar can be an advantage
for a court. I have been a practicing lawyer for several years
now, and my focus has been on practicing law. It's been sort of
a case-by-case incremental law practice, and I've been in the
trenches, so to speak, in the District Courts practicing both
in the Federal and to some extent in the State courts during my
time in the private practice, but particularly in the Federal
Courts, and I do hope that if I am fortunate enough to be
approved that my recent experience as a member of the
practicing bar would bring some insight to the Court of
Appeals, yes.
Senator Sessions. The Court of Appeals academic grade
points are not always determinative in my view, but I think a
lawyer who shows an aptitude and an interest and is able to
handle written work as well as litigate, that is an asset to
you on the Court of Appeals, and your background as an honors
graduate from Princeton, and a Yale graduate, having clerked
for Judge Silberman on the D.C. Circuit, having clerked for the
Chief Justice of the United States, now Chief Justice
Rehnquist. Your experience as an appellate lawyer in the U.S.
Attorney's Office is a really special background for it, and I
think from the reputation you have garnered as a man of
integrity and character and good judgment, those combinations
make you a really highly-qualified nominee. We are glad to have
you.
Mr. Colloton. Thank you, Mr. Chairman, for those kind
words. I appreciate them.
Senator Sessions. I congratulate Senator Grassley and
Harkin and the President.
Senator Schumer. Mr. Chairman, since I have to leave soon,
in the interest of getting on to our next panel, I will just
ask consent that I be allowed to submit some questions in
writing.
I congratulate the family on their pride in Mr. Colloton
getting this far.
Senator Sessions. It is a great honor, and one step below
the Supreme Court. You will handle a lot of important cases and
so far you have received extraordinary support and
congratulations.
The good news it here are no more questions, and I thank
you very much.
Mr. Colloton. Thank you very much. Thank you, Senator.
Senator Sessions. Now we will have the next panel. I think
we will have room for everybody, do we not?
Senator Schumer. We do.
Senator Sessions. If you will step up, all the district
nominees.
You have taken your seats. I now have to ask you to stand
and take your oath. If you would raise your right hand and take
this oath.
Do you swear or affirm that the testimony you are about to
give will be the truth, the whole truth and nothing but the
truth, so help you God?
Mr. Castel. I do.
Judge Feuerstein. I do.
Mr. Holwell. I do.
Judge McKnight. I do.
Mr. Proctor. I do.
Mr. Robinson. I do.
Senator Sessions. Thank you very much.
Senator Schumer, I know you have got some nominees here,
people you care about, and I will yield to you at this time.
Senator Schumer. Thank you, Mr. Chairman. I will not ask
long questions of the nominees. I will reserve the right to
submit other questions in writing, but obviously, I am very
familiar with four of the six and have heard good things about
the other two. So I have one question for every nominee, and
unfortunately, you have to answer it first--
Senator Sessions. I normally ask them to tell about their
families or if you need to go first--
Senator Schumer. No, no. One of the joys I get is seeing
the families, so I would like that.
Senator Sessions. I guess we can start over here with Mr.
Castel. If you want to give a brief opening statement or any
comments, then introduce your family, that would be fine.
STATEMENT OF P. KEVIN CASTEL, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF NEW YORK
Mr. Castel. Thank you very much, Mr. Chairman.
I am delighted that at this moment my wife, Patricia, and
my daughter, Jeanne, are in New York following this on
capitalhearings.org, and my young daughter, Allison is at camp.
So I am here today on my own, and very happy to be here.
I have no opening statement.
[The biographical information of Mr. Castel follows:]
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Senator Sessions. Judge Feuerstein?
STATEMENT OF SANDRA J. FEUERSTEIN, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF NEW YORK
Judge Feuerstein. Good morning, Mr. Chairman. Good morning,
Senator Schumer.
I have no formal opening statement, but I would like to
welcome family and friends here today. First of all my mother,
Judge Annette Elstein, who is an Immigration Judge; my husband,
Albert, who was born in Brooklyn, Senator Schumer. That's good,
right?
[Laughter.]
Judge Feuerstein. My terrific sons, Adam Feuerstein, who is
here with his wife, Karen and my granddaughter, Arielle; my
wonderful son, Seth, who's here with his wife Sharon and my
grandsons. I think they're watching on closed circuit TV which
is why it's quiet here. My grandsons Jacob and Joshua. My dear
friends, Joan Katz, Phil and Joyce Glickman, Nan Weiner, Dale
Twillis and Arlene Zalayet, have also accompanied me here
today.
Senator Sessions. Outstanding. We are glad that you are all
here.
Senator Schumer. If they are in the room, could we have
them stand? I just like to see them. It is nice.
Judge Feuerstein. Well, I would like you to see Arielle's
dress because it's quite spectacular, but perhaps afterwards.
Senator Schumer. Welcome.
Senator Sessions. Thank you.
Judge Feuerstein. Thank you.
[The biographical information of Judge Feuerstein follows:]
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Senator Sessions. Mr. Holwell?
STATEMENT OF RICHARD J. HOLWELL, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
Mr. Holwell. Thank you, Senators. I too have no prepared
remarks, but I would like to introduce my beautiful wife of 32
years, Nancy; my two wonderful daughters, Ana and Eve; my
sister-in-law Barbara; and my good friend, Hon. Paul Friedman,
a District Court Judge here in the District of Columbia.
Senator Sessions. Very good. If you would stand. We are
delighted to have you with us.
[The biographical information of Mr. Holwell follows:]
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Senator Sessions. Judge McKnight?
STATEMENT OF H. BRENT MCKNIGHT, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Judge McKnight. Thank you very much. I have no formal
opening statement. I am honored to be here. I would like to
thank Senators Edwards and Dole for their support, and
Congressman Myrick for coming and speaking today.
In addition, my wife, Beth, I would like to introduce, and
my sons, Brent, Matthew and Stephen. This is their first
introduction really to Washington, and they are learning a lot.
I'm so proud and happy to have them here.
In addition, my father-in-law and mother-in-law, Charles
and Sherry Herion are here, as well as some friends. Howie and
Debbie Donahoe and their sons Chris and C.J.; John and Carol
Sittema; and Larry and Barbara Gregory. I hope I've got them
all, and if we could--
Senator Sessions. Yes, if you would stand, we would
appreciate it. It is good to see the boys there. I got to meet
them earlier. Very good, thank you.
[The biographical information of Judge McKnight follows:]
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Senator Sessions. David Proctor.
STATEMENT OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ALABAMA
Mr. Proctor. Yes, sir. Thank you, Mr. Chairman, and thank
you, Senator Schumer.
My lovely wife, you've heard the line my better half, she's
my better nine-tenths. Teresa is here, along with our children,
Luke, Jake and Shelly Grace. And Senator Shelby was nice enough
to mention Shelly's birthday is tomorrow. We are very pleased
that she could be here for that.
Also I have--my mother is unable to travel. She's in a
retirement community in St. Petersburg, Florida, but her
brother and sister, David Ames and Tootie Brown are here, along
with David's wife, Carol, and Tootie's children Alec Brown and
Liz Repass, who are my cousins, and Liz's son, John Thomas.
They've traveled up from Salem, Virginia to be with us today.
I would like to thank you. It's an honor and privilege to
be here before you.
Senator Sessions. Thank you. If you would please stand.
Happy birthday, Shelly Grace. Since it is not today, I will not
sing, not that I could.
Senator Schumer. He would not sing tomorrow either, Shelly
Grace. [Laughter.]
[The biographical information of Mr. Proctor follows:]
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Senator Sessions. Mr. Robinson.
STATEMENT OF STEPHEN C. ROBINSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
Mr. Robinson. Thank you, Mr. Chair. Senator Schumer, thank
you so much for your kind remarks. In particular, thank you for
mentioning my wife, who I hope is watching and would be proud,
not so much that I'm here today, but mostly proud of our
daughter, who has grown to be a fine young lady, and she is
here with us today, Victoria.
Unfortunately, my mother, Yvonne Robinson, and my two
brothers, Guy and Chester, are not here today, but they are
back at Brooklyn anxiously awaiting word on the events of
today.
I also would like to thank Senator Clinton and Senators
Dodd and Lieberman for their long-term friendship and support
that I've enjoyed over the years. Thank you very much and I'm
very happy to be here.
Senator Sessions. Very good.
Mr. Robinson. If Victoria could just stand for a moment.
Senator Sessions. Yes, excuse me. Hello.
[The biographical information of Mr. Robinson follows:]
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Senator Sessions. Senator Schumer?
Senator Schumer. Thank you. I always enjoy seeing the
families. It is a nice day. And to see the family's pride in
their loved one before us is a wonderful thing.
I just have one question. Before I do that, I do want to
ask you something, Mr. Castel. I have a daughter, Allison, a
young daughter, who is also in camp right now, so we share
something in common. My daughter is 14.
Mr. Castel. Mine is going to be 13 on September 7th, and
she also plays CYO basketball, as I know your daughter does.
Senator Schumer. Yes, she does. My daughter is a--I loved
sports, but I was not--our team's motto in high school was:
``We may be small, but we are slow.''
[Laughter.]
Senator Schumer. My daughter has a gift from God. She is
just a great athlete, and she loves sports, and she is at
sports camp actually up in the Catskills, Kutcher Sports
Academy.
Anyway, my one question for all the nominees is this, and
unfortunately you have to answer it first, Mr. Castel. Can you
name for me a judge, could be at your local level, could be at
the national level, but a judge you admire and would hope to--
we all have role models we look up to as we move forward. That
is what I would ask each of you.
Mr. Castel. Well, I may be criticized for being someone who
is trying to influence a future colleague, but Chief Judge Mike
Mukasey in the Southern District is somebody who I do admire
greatly. He has a terrific temperament. He has shown backbone
and courage, and I have a very high regard for him, and I have
a very high regard for him, and I have to quickly mention
before--not to take Senators' time--but my own personal mentor,
Hon. Kevin Thomas Duffy for whom I clerked and who is still
sitting on the Southern District Bench. He has been a great
influence on me.
I thank you for the question, Senator. So I don't get into
trouble, I want to mention that my brother-in-law, Kevin
McLernon, has arrived in the Senate room and is here. Thank
you.
Senator Schumer. Thank you.
Judge Feuerstein?
Judge Feuerstein. I actually can't think of one person in
particular, but there are certainly--
Senator Schumer. Name a few.
Judge Feuerstein. There are attributes that I think go into
making a good judge, and beyond being a good judge, a good
person, and as far as judges go, I would have to say Judge
Arthur Spatt, who sits in the Court which hopefully I will
someday sit in; and Judge Leo McGinity, with whom I worked for
many years, and who is now a colleague of mine on the appellate
division. Judge Marie Santagata, and of course, as a role model
for women, Justice Sandra Day O'Connor in the Supreme Court.
Senator Schumer. Mr. Holwell?
Mr. Holwell. Thank you for the question, Senator. The two
that stand out in my mind of the judges I've practiced before,
I would have to mention Judge Gagliarti from the Southern
District, who was a man of great demeanor and great measure,
and Judge Weinfeld, also of the Southern District, who was a
man of great intelligence and brilliance.
Senator Schumer. Thank you.
Judge McKnight?
Judge McKnight. Thank you, Senator. If I could name a few
as well?
Senator Schumer. Please.
Judge McKnight. In terms of a judge that's known
nationally, someone I greatly admire, is Learned Hand, for his
fidelity to the law and to the facts, his precision of analysis
and language, his courage in his defense of liberty.
At the local level, I've been a judge on the State Court as
well as the Federal Court, and four come to mind. The Honorable
Sam Ervin of the Fourth Circuit Court of Appeals, again for his
courage and fidelity to the law, and understanding of trials
and how they work; James B. McMillan for his courage in the
Charlotte-Mecklenburg integration; Graham Mullen, my chief, for
his attention to the details of the Court as well as to the
ideals of the Court; and Frank W. Snepp, who is now deceased,
but on the North Carolina State Superior Court, who taught me
much.
Senator Schumer. Thank you.
Mr. Proctor?
Mr. Proctor. Yes. Senator Schumer, thank you for the
question. I would have to start with Judge Widener, who I had
the privilege of clerking for and who really introduced me to
the Federal Court system. We've had two very high-quality chief
judges, one retired now, Sam Pointer, who works at the
Birmingham firm of Lightfoot, Franklin and White, and I look
forward to hopefully, if I'm fortunate to be confirmed, to
serve under Judge Clemon, who I've gotten to know quite well
over the years in both a legal and a personal way.
Senator Schumer. Mr. Robinson?
Mr. Robinson. Thank you for the question, Senator Schumer.
If I am fortunate enough to be confirmed, I would have the
great honor of serving with several judges whom I have
practiced before and have gotten to know and admire and respect
greatly. One has been mentioned by Mr. Castel, Chief Judge Mike
Mukasey. He's a judge who has shown great integrity, great
courage in the work that he's done, and also a sense of humor
and a good rapport with both colleagues on the bench and the
practitioners before him.
Secondly, I would mention Judge Keenan. As a young
Assistant United States Attorney I was fortunate enough to try
three cases before Judge Keenan, and admired the way he
conducted his courtroom, and treated even a very green, young
Assistant United States Attorney, and did one of the most
impressive things that ever happened to me in my career. He
actually asked me to bring my mother in so that he could talk
to her in chambers without me present. And to this day I've
never found out the content of that conversation, but at least
I am happy to say my mother did not disown me. But I've always
respected him, and the way he worked a courtroom, the way he
treated counsel, and then both of their knowledge and fidelity
to the law.
And the last I'll mention is Judge Lynch, who was the Chief
of the Criminal Division when I was an Assistant United States
Attorney, and has been a person who has been very influential
to me and very supportive of me. He's a giant intellect, a
person of great integrity, and someone I admire greatly.
Senator Schumer. Thank you. I want to thank you all. I
apologize to the Chair and all of you that I have to be gone,
but I congratulate all of you on your nominations and look
forward to your confirmations.
Mr. Castel. Thank you, Senator.
Judge Feuerstein. Thank you, Senator.
Mr. Holwell. Thank you, Senator.
Mr. Proctor. Thank you, Senator.
Mr. Robinson. Thank you, Senator.
Senator Sessions. I just have a few questions I would ask
you. One of the questions that is important is understanding
the role of courts. This is the last opportunity the people
just about, except when the matter is on the floor and then
there are no questions to be asked, this is really the only
chance in which the people get to ask you, will you be true to
the constitutional framework? Because when a judge declares
that the Constitution says something, you have a lifetime
appointment, and it is difficult to deal with if that is not
accurate.
So we would like to know, do you understand the role of the
court, what do you understand with regard to the role of the
court and your responsibility to follow the law as it is
existing, as exposed to expansive interpretations of the law?
Mr. Castel. Thank you for the question, Mr. Chairman.
I think an affection for the rule of law in our
constitutional system means a tremendous respect for the
separation of powers. The role of the legislature, the
executive, and the judiciary have to be confined to their
respective domains if our system is going to work. I would view
my job, if I were confirmed, as not only following the
precedent handed down from the Supreme Court and the Court of
Appeals, but also at the same time, respecting the boundaries,
not trying to play amateur legislator in any respect. I
appreciate the question. It's a very important question, and I
believe in the separation of powers doctrine down to my toes.
Thank you very much.
Senator Sessions. Thank you very much.
Judge
Judge Feuerstein. Thank you for the question, Mr. Chairman.
I agree with Mr. Castel as far as the separation of powers and
following precedent. I presently sit on an appellate court, so
I am really in favor of this.
[Laughter.]
Judge Feuerstein. I view a judge's role as interpreting and
not creating law. That is the job of the legislature, and I
believe that my career on the bench has demonstrated my
execution of my duties with respect for separation of powers
and precedent. And that would be the end of my statement. Thank
you.
Senator Sessions. Thank you.
Mr. Holwell?
Mr. Holwell. Thank you, Mr. Chairman. I agree with Mr.
Castel and Judge Feuerstein. Judicial restraint surely ha to be
the touchstone of the court system, particularly at the
District Court level. No one elects a District Court Judge, and
yet he sits or she sits for a lifetime, and it's particularly
imperative for judges to understand that great power cannot be
abused, and the deference must be paid to the other branches of
the Government.
Senator Sessions. Judge McKnight?
Judge McKnight. Thank you, Mr. Chairman. If I am so
fortunate as to be confirmed, it is my deep-seated belief, one
that I've acted on in 14 years now as a judge, that the role of
the judge is precisely to interpret the law as it is given to
him or her, not to make law, not to expand beyond the law, not
to play legislator, but to follow precedent, honestly, fairly,
with integrity, to respect precedent that is established, to
follow the statutes and give a precise and fair interpretation
of the statutes, and do my best with what is given to me, to
apply it to specific fact situations accurately and justly.
Thank you.
Senator Sessions. Thank you.
Mr. Proctor?
Mr. Proctor. Thank you, Mr. Chairman. When I clerked for
Judge Widener, that was ingrained in my from the beginning of
my legal career, that we should respect the rule of law; we
should decide cases and controversies from the meaning of the
Constitution and not try to legislate, and that we should seek
the narrowest holding possible and not overwrite from the
bench. And I'm committed to virtually all the things I've heard
my co-panelists say, but I think you know from our
conversations before, I am committed deeply to the rule of law
and the fact that a judge has an inherently limited Federal
judicial power invested in him by the Constitution, and I would
uphold that duty if I was so fortunate to be confirmed.
Senator Sessions. Very good.
Mr. Robinson?
Mr. Robinson. Thank you, Mr. Chair, for that question. I
think it is an important one, and let me start briefly by
saying I agree with my colleagues. I have a deep and abiding
respect for the rule of law. I have tried to show that and live
that as an Assistant U.S. Attorney, as Deputy General Counsel
of the FBI, and again as a U.S. Attorney.
I believe that the way this system works well is for judges
to follow the precedent that has been set before them and to
rule narrowly, as narrowly as possible, with an eye towards the
law as it has been set forth. We are not legislators. We have
not been elected. We have not chosen that path in life. But we
have chosen to participate in an executive--I mean in a
judicial, in a co-equal branch of the Government, and that's
important, but it's also important for us to understand our
role in that process, and that is not to legislate, but to
interpret and follow the law.
Senator Sessions. I think you have answered that well.
There will be temptations. There will be times when somebody
would want you to rule in a way that you think would really be
good public policy perhaps, but it is not supported by the law,
and the more I look at the strength of the United States, the
more I am convinced that this Nation's fundamental power and
ability to grow and progress is based on the rule of law. You
look at the countries like Hong Kong, that have a legal system,
how they flourish when other countries around them are not
doing well. New York, for example, has these complex commercial
cases affecting the whole world a lot of times, and plus we are
having those all over the country now, in Alabama and
everywhere else.
But people invest here. They believe in doing business with
Americans. We are able to be competitive in the world
marketplace because people think they can get justice in our
courts, and they are not worried about an investment. You think
about the idea of an average citizen can borrow $150,000 to buy
a house and pay it back at less than 6 percent interest over 30
years, this is a tribute to our legal system. It has really
been a source of our strength, and I do believe that some
opinions in recent years have gone beyond a legitimate
interpretation of our law, and I think it undermines public
respect for law, and if the public ever believes that judges
are nothing more than politicians too like us, then I think
that great respect and reservoir of respect that exists could
be undermined.
Let me ask you this, now briefly, each one of you. The
challenge of a Federal District Judge is great. There are a lot
of pressures and a lot of intensity, a lot of deadlines that
have to be met. Frequently there are injunctions and things
that require weekends and nights. The backlog is there. Clients
have large amounts of money at stake. Are you willing to see
yourself as a servant to the system, and if need be, put in
extraordinary hours and manage your docket effectively? It is
certainly not an easy job.
Do you have any thoughts about that, Mr. Castel?
Mr. Castel. Thank you, Mr. Chairman. I do have some
thoughts. First of all, I think, and I probably can say this
about my co-panelists, you don't get to this table unless you
have an incredible work ethic, and I think you really
particularly--my familiarity tends to be more with the Federal
Courts in New York. It is a crushing load. It is hard work.
I've told my family, because they've asked the question, you
know, will I be working harder or less hard than I am now, a
partner in a law firm. My answer is probably over at least the
next 3 years until I get my sea legs, I anticipate probably
working harder, but it's responsibility that I eagerly embrace.
Thank you, Senator.
Senator Sessions. Thank you.
Judge Feuerstein?
Judge Feuerstein. Thank you for the question, Mr. Chairman.
I presently sit in what I believe is the busiest appellate
court in the country, and so I am used to work, and as Mr.
Castel has said, I believe everyone on this panel probably is.
I have never shirked it. I look forward to the challenges if I
am fortunate enough to be confirmed. And frankly, when you love
what you do, it's not a hardship.
Senator Sessions. Well said.
Mr. Holwell?
Mr. Holwell. Mr. Chairman, I agree with a statement you
made earlier, that if it were ever true, it certainly is not
the case that one can retire to the bench. The extraordinary
demands on the judiciary can only be met by people continuing
to put their shoulder to the wheel of labor. I think what Mr.
Castel said is correct, we've all done that to get this far,
and should we be so lucky as to be confirmed by the Senate, we
will continue in that vein.
Senator Sessions. Good.
Judge McKnight?
Judge McKnight. Mr. Chairman, thank you for the question.
In my time on the bench I have seen the importance of it over
and over again. When I was a State judge we have a very
overburdened court system in Charlotte, and I worked hard to
manage the docket there and did so. Likewise on the Federal
bench as a Magistrate Judge, we have one of the highest
weighted caseloads in the country, and I have, I believe,
effectively manage the cases.
But let me just say this. My commitment is to work hard, to
put in the hours and give each case the time and thought it
deserves, and I will do so.
Senator Sessions. Judge McKnight, do you have any comments
on the role of the magistrate for your fellow judges to be? I
know in the Southern District of Alabama, where I practiced for
a number of years, the magistrates were given a lot of work and
they responded very well. It is a prestigious position, and you
got quality nominees and they did quality work. Do you think
some judges, district judges around the country could use
magistrates more effectively?
Judge McKnight. Thank you, sir. I believe so. I have been
very fortunate in the Western District, that the District
Judges who reviewed and supervised my work, have allowed me to
work to the full extent of the statute, which has been expanded
in terms of the responsibility of the magistrate judge several
times since 1980, and I would encourage judges to make full use
of it. It, of course, takes loads off of them and gives them
time to focus on their role, what is important. And yes, sir, I
would underscore their role as strongly as I could.
Senator Sessions. Mr. Proctor?
Mr. Proctor. Thank you, Mr. Chairman. I think the reason
that I have sought this position is a call to service, a call
to service of my country, the people of Alabama and my
colleagues in the bar. I plan to bring the diligence and work
ethic I've demonstrated as a lawyer and that I've been taught
by my partners, such as Richard Lehr and David Middlebrooks,
and from some of my former partners at my old firm, like Steve
Brickman and Brad Sklar. I hope to bring that diligence and
work ethic to the bench. And I certainly agree with your
comment that you've shared with me before, that this is not a
retirement job, this a roll-your-sleeves-up-and-get-to-work
job.
Senator Sessions. You have that reputation as a worker.
Mr. Robinson?
Mr. Robinson. Thank you, Mr. Chairman. I agree with my
colleagues again. I have always been a person who has worked
extremely hard, in large part because I enjoy that, and that's
what the jobs that I've been in require. And should I be
fortunate enough to be confirmed, I would pledge that the
question for me will not be am I putting in the hours that I
will work diligently so that everyone who appears before the
bench has the confidence that their case has been heard, that
their voice has been not only listened to but heard by the
Court, and that a careful and thoughtful process has been
engaged in and a decision reached. And I think that that's
important, not only for myself going forward in the job, but
for the confidence that litigants and parties have before the
Court. So I think that's extremely important that we all do
that, and have tremendous faith, having gotten to know my
colleagues at the table recently, that we will all do that.
Senator Sessions. I agree. This is a first rate panel. We
are glad you are here. There are litigants that have filed
motions that ought to be granted, and the sooner they are
granted, the better things happen in the legal system. I know
you will do that. Your backgrounds have held up. You have been
investigated by your bar association and by the President and
by the FBI, by the staff of the U.S. Senate, and you have
passed a whole lot of hurdles to get here. I think each one of
you represent the best of the legal system of America. I look
forward to your confirmations.
If there is nothing else at this point, we will be
adjourned. But I will note that the record will be open for
further questions that you may receive in the form of written
questions. Anything else? If not, we are adjourned.
[Whereupon, at 11:11 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF HENRY W. SAAD, OF MICHIGAN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SIXTH CIRCUIT; LARRY ALAN BURNS, OF CALIFORNIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; GLEN E. CONRAD,
OF VIRGINIA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
VIRGINIA; HENRY F. FLOYD, OF SOUTH CAROLINA, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA; KIM R. GIBSON, OF
PENNSYLVANIA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
PENNSYLVANIA; MICHAEL W. MOSMAN, OF OREGON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF OREGON; AND DANA MAKOTO SABRAW, OF
CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
CALIFORNIA
----------
WEDNESDAY, JULY 30, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:17 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch presiding.
Present: Senators Hatch, Specter, Sessions, Graham, Leahy,
Feinstein, Feingold, Durbin, and Edwards.
Chairman Hatch. I apologize for being a little bit late. I
have been in since 6:00 and I am still having trouble keeping
up with it all, and I apologize to my colleagues who have had
to wait. I apologize to my colleagues on this Committee.
Senator Leahy. I can vouch for the fact that he was here at
6:00. I looked out the window and I saw him coming in.
[Laughter.]
Chairman Hatch. Leahy does not even get out of bed at 6:00,
I have to tell you. I have been around him. I cannot blame him.
I am going to forego, or at least hold off on my statement.
Should we hold off on our statements so that we can accommodate
our fellow Senators? If you do not mind, we will start from
your right and go to the left, and start with you, Fritz.
Senator Hollings, we will call on you to speak first, then John
Warner. Excuse me. We are going to have Senator Feinstein go
first because she has an amendment on the floor and has asked
to speak first.
Senators Levin and Stabenow have asked for 45 minutes to
speak and have agreed to follow all of the other Senators. I
will ask them and Congressman Rogers to come to the witness
table. You are due on the floor too and you want to speak.
So we will go with Senator Feinstein, then with Senator
Specter, and then we will go to Senator Hollings.
PRESENTATION OF LARRY ALAN BURNS AND DANA MAKOTO SABRAW,
NOMINEES TO BE DISTRICT JUDGES FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Mr. Chairman, let me thank you very much
for this courtesy. I really do appreciate it, and I will try to
be very brief.
I am very pleased to introduce to the Committee two
Southern District of California nominees, Larry Burns and Dana
Sabraw. These nominees will fill two of the five new Southern
District judgeships created by the Department of Justice
reauthorization legislation enacted last year. The screening
committee submitted their names to the President in March, who
then nominated them in May. I think their presence here really
represents a very successful conclusion to what was a multi-
year effort to address a tremendous caseload crisis in the San
Diego area.
I would very much like to thank the Chairman and the
Ranking Member without whom these judgeships would not have
been created, so thank you very, very much.
Until these judgeships were authorized, the Southern
District of California had a weighted caseload average of
approximately a thousand cases per judge. This is the highest
in the country and more than twice the national average. I hope
we can confirm Judge Sabraw and Judge Burns as quickly as
possible because the District truly needs them. They have a
very heavy caseload of complex and heavy cases including some
large narcotics cases.
I am pleased to report that both judges come unanimously
endorsed by the California Bipartisan Judicial Selection
Committee. They are two more examples of how well this process
can work if Democrats and Republicans approach the issue
collaboratively.
Judge Burns is joined at today's hearing by his wife Kristi
and his two sons, Andrew, 17 and Adam, 15. Could you all stand
up so the Committee could acknowledge your presence? We are
delighted to have you here. Thank you very much.
Judge Burns is a lifetime California resident, graduated
from the University of San Diego Law School in 1979. The
American Bar Association unanimously rated him well qualified,
its highest rating. Since 1997 he served as a magistrate in the
Southern District where he has garnered rave reviews. Notably,
he received the Judge of the Year award from the Consumer Trial
Lawyers of San Diego.
Prior to his service on the bench, Judge Burns worked as an
Assistant U.S. Attorney in the Southern District of California
from 1985 to 1997 and as a Deputy District Attorney from 1979
to 1985. He has tried over 150 criminal cases to verdict.
During his time in the U.S. Attorney's Office, he enjoyed
one of the most distinguished careers of any U.S. Attorney in
the Southern District's history. His career reflects increasing
levels of responsibility including positions as Chief of the
Violent Crimes Sections and Deputy U.S. Attorney, the third-
ranking position in the office. He had received superior
performance awards from the Department of Justice in 1989,
1990, 1991 and 1992. He was only the second prosecutor from San
Diego to be inducted into the American Academy of Trial
Lawyers, which is an invitational organization limited to the
best trial lawyers on both the criminal and civil defense side
of the United States. A number of his professionals give him
their highest marks, but in the interest of time I will just,
if I may, enter those comments into the record.
Chairman Hatch. Without objection.
Senator Feinstein. Thank you.
I am equally pleased to introduce Southern District of
California nominee, Dana Sabraw, to the Judiciary Committee. He
is joined by his wife, Summer Stephan, his son, Jack, age 12,
and his twin daughters, Stephanie and Kimberly, age 10. I am
very partial to girls, age 10. I would like to ask the family
to stand so that we might see them as well. Thank you very much
for being here. We really appreciate it.
I also understand that John Yang, the President of the
National Asia-Pacific American Bar Association, is in
attendance as well. Could you please rise, Mr. Yang, so that we
could see you. Thank you very much.
Chairman Hatch. We are happy to welcome all of you here.
Senator Feinstein. Judge Sabraw is another exemplary
candidate. Like Judge Burns, he received a unanimous well-
qualified rating from the ABA. He, again, similarly, earned his
undergraduate degree from San Diego State University, and his
law degree from the University of the Pacific in 1985. He was a
member of the Law Review and the school honor society,
graduating in the top 10 percent of his class.
After law school he worked for the oldest law firm in Santa
Barbara called Price, Postel and Parma. He then became
associate and partner in the firm of Baker and McKenzie, one of
the largest law firms in the world.
Judge Sabraw was appointed by California Governor Pete
Wilson to the Municipal Court in 1995 and then to the Superior
Court in 1998. As a judge he has tried nearly 200 cases ranging
from serious felonies to multi-party complex civil litigation.
He has remained active in the community despite his
daunting workload. He is past president of the Oliver Wendell
Holmes Inn of Court. He has also been on the Board of Directors
of the Asian Business Association, the Falcons Youth Baseball,
the San Diego County Judges Association and the Pan-Asian
Lawyers. Judge Sabraw founded the Positive Impact Program in
1998, and through this program, it is kind of interesting,
judges, attorneys and community volunteers have educated over
6,000 fifth graders about the justice system. He has the
endorsement of the Mayor of San Diego, Dick Murphy, who says
that his skill, judgment and integrity would bring honor to the
Federal bench.
I would like to end on that note. I think we have two very
distinguished nominees. Again, an evenly-divided bipartisan
screening panel found them eminently qualified, and unanimously
presented them to the President of the United States.
Thank you for the courtesy, Mr. Chairman.
Chairman Hatch. Thank you, Senator. We will turn to Senator
Specter.
Senator Specter. Well, thank you, Mr. Chairman. I too am
about to offer an amendment on the Energy bill, but I think
Senator Cantwell will be there for a little bit longer, and I
know two of my senior colleagues here, so I would defer to
Senator Hollings and Senator Warner, and then ask for
recognition to introduce a Pennsylvania nominee.
Chairman Hatch. That would be fine, but I think what I am
going to do is let both South Carolina Senators go if I can. Is
that okay with you, because Senator Graham is here, so we can
keep it consistent?
Senator Specter. That is acceptable, Mr. Chairman.
Chairman Hatch. Senator Hollings, we will turn to you now.
Glad to have you here.
PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. FRITZ HOLLINGS, A
U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Hollings. Thank you very much, Mr. Chairman, and
distinguished members of the Committee. In deference to all of
us here who have business on the floor, let me ask that my full
statement be included in the record as if delivered.
Chairman Hatch. Without objection.
Senator Hollings. I would ask Judge Henry Floyd and his
wife to stand. Also we are honored to have the Chief Justice of
our State Supreme Court Jean Toal.
Chairman Hatch. Welcome. We are so happy to have you all
here.
Senator Hollings. We welcome you to the Committee.
Chief Justice Toal says Henry Floyd is the ``go to guy.''
Any time they have a problem at the Supreme Court level, they
have been going to him at the Circuit bench level for the past
12 years. Specifically, he has the unanimous well-qualified
American Bar Association rating. He is a three-term State House
Representative. I could go down on and on, on all the different
experiences he has had in the 20 years at the bar.
Specifically he has balanced judicial temperament, Mr.
Chairman. He does not go around harassing people about
religion. He has a professional work ethic and a sharp legal
mind. He does not go around publicly campaigning on
controversial Supreme Court decisions. This is the kind of
judge that you have got to commend Senator Lindsey Graham for
having. I can tell you right now, with all the rhubarb and the
headlines and the controversy about judicial confirmations here
in the U.S. Senate, this one will go through unanimously
because he is just totally of a judicial temperament, and that
sharp legal mind, and well-balanced judgment, and depth of
experience and everything else like that, he has got glowing
bipartisan support all over the State.
Chairman Hatch. Senator Hollings, do you think that we
might even be able to avoid one of these time-consuming votes?
Senator Hollings. You have got to give credit to Senator
Lindsey Graham. I had a lot of letters recommending him, and I
was sort of looking forward to it, but you know, the Supreme
Court and that funny decision they made in Florida, so I never
got the chance.
Chairman Hatch. The reason I raise that issue is because we
are now voting on judgeship nominees we really never had to
have roll call votes on, taking a lot of the time of the
Senate, where we never did that before.
Senator Hollings. I want to thank the Committee and you,
Mr. Chairman, for your fine consideration.
Senator Specter. Senator Hollings, when you mention
religion and campaigning on controversial decisions, when are
you going to go for the jugular?
[Laughter.]
Senator Hollings. When am I going to vote for who?
Senator Specter. The jugular. You are the master of the
Senate at going for the jugular except possibly for Senator
Warner.
Senator Hollings. Let my lawyer, Warner, answer that.
[Laughter.]
Senator Warner. I will stand by the old first captain. He
still walks down the halls with the record he has had, World
War II.
Chairman Hatch. Thank you. We are happy to have you here,
Senator Hollings.
[The prepared statement of Senator Hollings appears as a
submission for the record.]
PRESENTATION OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF VIRGINIA, BY HON. JOHN WARNER, A
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. I will be very brief, and like Senator
Hollings, I will ask that my statement be included in the
record.
We have one of these magnificent public servants, who has
for 27 years been a Magistrate Judge in the Western District of
Virginia in the Federal Court system, and the highlight of this
hearing would be asking the Judge to introduce his lovely wife,
Mary Ann. Would you stand, please, Mary Ann? That is the full
reason why this wonderful man I think has received this
nomination.
I say to my colleagues, Glen Conrad has been nominated by
the President to serve as a judge on the United States District
Court for the Western District of Virginia, nominated to fill
the vacancy of James Turk, who began service in 1972 and
recently took senior status, a remarkable jurist in the annals
of Virginia history.
Senator Allen was to have joined me here today, and I will
unanimous consent that his statement be placed in the record
together with mine.
I just simply say to my colleagues, in putting this
statement in, that the background of this nominee makes him
highly qualified for this position. Both Senator Allen and I
extensively interviewed a wide range of individuals, and this
nominee came to the forefront.
His experience with the law is extensive. He has a record
27 years. That coupled with his temperament, his integrity and
judicial demeanor is consistent with the high standards of the
Federal bench and bar, and I urge his rapid confirmation by the
United States Senate.
I thank my colleagues.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator. We appreciate having
you here.
Let us turn to Senator Specter.
PRESENTATION OF KIM R. GIBSON, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN SPECTER, A
U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
I have the pleasure of introducing a very distinguished
Pennsylvanian, Judge Kim Richard Gibson for nomination to the
United States District Court for the Western District of
Pennsylvania.
Judge Gibson is a State Court judge now, has been for the
past 5 years, has an outstanding record, a graduate of West
Point in 1970, magna cum laude on his JD degree from the
Dickinson School of Law in 1975.
While in the military service, has extensive experience in
the Judge Advocate General's Office, and returning to the
practice of law in Somerset County, Pennsylvania, which in the
past 2 years has become a very famous county where one of the
9/11 flights went down, and then the mine disaster last year.
It is good to have something very positive for Somerset County
and I think Judge Gibson's nomination to the Federal bench is
just that. He had practiced law in Somerset County as a sole
practitioner for 20 years, from 1978 to 1998, in a wide
variety, and I think that kind of diversity is something which
is very, very positive.
Judge Gibson has been recommended by the bipartisan
nominating panel, which Senator Santorum and I have
established, and with all of the big firm lawyers having come
to the bench in so many parts of our State as well as the
country, it is good to see a sole practitioner from a small
county come to the Federal bench.
In the interest of brevity, Mr. Chairman, I would ask that
a resume be included in the record with a detailed statement of
Judge Gibson's legal background, and in conclusion the two most
popular words of any statement, I would ask Judge Gibson to
introduce his lovely wife, and as television had it, their
three sons.
Judge Gibson. Thank you, Senator Specter. With me today is
my wife, Rebecca, my son, Connor, my son, Sean, my son,
Matthew, and also accompanying me today is my law clerk, John
Egers, and my secretary, Kimberly Talarovich.
Chairman Hatch. We welcome all of you to the Committee.
Senator Specter. Thank you very much, Mr. Chairman. As I
said, I would like to excuse myself. I am due on the floor
shortly.
Chairman Hatch. Thanks, Senator.
We will turn to Senator Graham now, and then go across the
table.
PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. LINDSEY GRAHAM, A
U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman.
I would like to associate myself with at least some of
Senator Hollings' remarks, not all. That part about me being a
good guy, I really want to associate myself with that.
But Senator Hollings and I do agree on this, that Judge
Henry Floyd, Mr. Chairman, will be a great addition to the
Federal bench. He has been serving, as Senator Hollings
indicated, for over a decade at the State level. I can tell you
firsthand, I have appeared before him as a judge, before I was
elected to Congress. I think I lost. It probably had nothing to
do with him, a lot to do with me. But Judge Floyd was rated in
the top three judges of our entire state. Justice Toal is a big
fan, and I certainly admire her, but we have Senator Larry
Martin from Pickens County, Judge Floyd's home county, my home
county. Larry has been in politics a long time, and anyone who
has been around Judge Floyd would tell you that he is a quality
person, he wears the robe well, and if you go into his court
you are going to be treated fairly no matter where you come
from, no matter what station in life you have, and I think he
will be a great addition to the Federal bench. His colleagues
and those who practice before him, rate him very highly in all
the areas that matter to me.
We have a lot of politics in our judicial process. That is
sort of the way it was meant to be. I think we have way too
much. I do not associate myself with some of the things that
Senator Hollings said, but we are here today trying to do some
good, and South Carolina will be better off if we can get Judge
Floyd nominated. I want to recommend to my colleagues on the
Republican and Democratic side of the aisle, that if you vote
for Judge Floyd you will have done a good thing for the State
of South Carolina and the United States.
At this time, Judge Floyd, I think you would be honored to
introduce your family, if you would do that.
Judge Floyd. Thank you, Senator. This is my wife, Libba,
and my daughter, Betts here. My good friend, Scott Dover is
with us in addition to the two people that Senator Hollings
mentioned.
Chairman Hatch. We are happy to welcome all of you here.
Senator Graham. Welcome to Washington, and God bless in
your new endeavors. I am very proud of you, Henry. You will
make a great judge for us.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you.
We will turn to Senator Wyden and then Senator Smith.
PRESENTATION OF MICHAEL W. MOSMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF OREGON, BY HON. RON WYDEN, A U.S. SENATOR
FROM THE STATE OF OREGON
Senator Wyden. Thank you, Mr. Chairman. Let me begin, Mr.
Chairman, by thanking you for all of your courtesies. You have
been so kind to me on so many matters, and we very much
appreciate your handling this priority nomination for Oregon.
As you know, I feel very strongly about working in a
bipartisan way. When I came to the Senate, Senator Hatfield was
enormously helpful to me, and Senator Smith has just been so
gracious and so thoughtful. We have done all of our judicial
nominations together, and I am very proud to be here today, Mr.
Chairman, and colleagues, to support the fine choice that
Senator Smith has made for this particular nomination, Mike
Mosman, to be of service on the United States District Court
for the District of Oregon.
He has an outstanding record as a tough prosecutor. I
believe his law enforcement background will be a significant
asset to the Federal bench in Oregon.
He has such an interesting background, Mr. Chairman. Many
may know, it has been reported in our newspapers, that at one
time he wanted to be a marriage counselor. This strikes me as
ideal training for the kind of position that he will be serving
in.
But I support Mike Mosman for three major reasons. The
first is I am convinced that he is committed to equal rights
for all Americans, and I would also like to praise his
listening skills. A number of organizations in Oregon raised
questions, for example, with respect to Mr. Mosman's positions
on a variety of social issues, and Mr. Mosman really reached
out and listened, and showed his concern, and I credit him for
that. His commitment to equal rights for all Americans and his
willingness to listen has been especially important to me.
Second, I believe he is going to be fair, and that is a
prerequisite for anyone serving in this position. He showed
that as a prosecutor. He will show that as a U.S. District
Judge.
Third, I think he understands the role of a judge in this
position. He understands he is not a legislator. He is not out
there writing bills and pushing legislation, but he is to serve
as a judge on a whole host of concerns that come up throughout
the west. He is a westerner. He understands our issues, and I
am convinced that he would be an excellent nominee if
confirmed.
I am glad once again to be able to join my good friend and
colleague, Mr. Chairman, in sending to you another nominee that
has the bipartisan support of both of Oregon's Senators,
Michael Mosman.
Chairman Hatch. Thank you, Senator Wyden. We appreciate
having you here, and we appreciate the good bipartisan way you
and Senator Smith work on these judges.
Senator Smith, we will turn to you, and then we will go to
Senator Allen, then Senator Santorum.
PRESENTATION OF MICHAEL W. MOSMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF OREGON, BY HON. GORDON SMITH, A U.S.
SENATOR FROM THE STATE OF OREGON
Senator Smith. Thank you, Chairman Hatch, Senator Leahy,
Senator Durbin. I appreciate very much your consideration of
Michael Mosman today, and it is also a privilege of mine to be
here with my colleague, Ron Wyden, again in a bipartisan way in
recommending a judge for the United States of America.
Recently the ABA rated Michael Mosman well-qualified. There
is a reason for that. He is actually supremely qualified. He
was the number one student at Utah State University, its
valedictorian. He was the editor-in-chief of the Brigham Young
University Law Review. He went on to clerkships with Malcolm
Wilkey of the D.C. Circuit and Lewis Powell of the United
States Supreme Court. He has had a distinguished career in
private practice with the law firm of Miller and Nash. But he
felt a calling, if you will, to public service and sought a
position with the U.S. Attorney's Office.
I did not know Michael Mosman prior to our looking for a
United States Attorney for Oregon. I believe I had met him, but
could not say that I knew him. I knew of him. Senator Wyden and
I established a bipartisan commission, and he surfaced as the
number one recommendation of this bipartisan panel. He has been
an outstanding United States Attorney for Oregon in the war on
terrorism and in keeping the people of Oregon safe from those
who would harm them.
In addition to that, in going forward for this position,
again from a bipartisan panel the number one recommendation was
for Michael Mosman to fill this vacancy.
I think it is a high tribute to him that in the audience
today are two sitting judges of the United States District
Court in Oregon, Judge Hogan and Judge Haggerty. Those
gentlemen are here. If they could stand up, I would like to
acknowledge them. They are here because they recognize, having
seen him advocate before the bar of the Federal Courts in
Oregon, his professionalism and would not be here as a Democrat
and as a Republican if they did not think so highly of him.
Chairman Hatch. Happy to have both of you here. We are
honored to have you here.
Senator Smith. Mr. Chairman, I could go on, but I think his
record speaks for itself. I will conclude with an incident
having nothing to do with the law.
Recently, my wife and I were having dinner at a nice place
in Oregon. We were attended by a lovely young woman who was our
waitress. She was bright and very well-mannered. And, after the
meal she introduced herself as Mike Mosman's daughter. I
thought what man would not be proud to have a young woman like
that as his daughter. I think it speaks well of her parents,
but particularly of the man who will be judged by you today,
Michael Mosman. I, without reservation, recommend him for
confirmation to the United States District Court of Oregon.
Thank you, sir.
Chairman Hatch. Thank you. We appreciate both of you being
here. We appreciate the good testimony, and we will put all
statements in the record.
Senator Graham asked me to have articles in support of
Judge Floyd be included in the record at the appropriate place
following his remarks.
We will turn now to Senator Allen, then Senator Santorum.
PRESENTATION OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF VIRGINIA, BY HON. GEORGE ALLEN, A
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman, Senator Leahy,
Senator Durbin. It is my pleasure to join with my colleague,
Senator Warner, in strongly supporting the nomination of Glen
Conrad, a fellow Virginian, to serve on the United States
District Court for the Western District of Virginia.
I am glad that he is joined by his wonderful wife, Mary Ann
Conrad, who I thought so much of in the days I was Governor
that I appointed her to serve on the Community College Board
for the State of Virginia. They are a wonderful team in service
in a variety of ways to Virginia and to their communities.
It is a great pleasure to advocate strongly for Glen
Conrad. I have known Glen Conrad since 1977. I consider the
Western District of Virginia my home. When I graduated from law
school at UVA, I went down and was a law clerk for then U.S.
District Court Judge Glen Williams in Abingdon, Virginia, and
there was a magistrate judge there, Glen Conrad. So as a pup
coming out of law school, you are always learning as much as
you can as far as how tough decisions are made, and how you
handle a very voluminous docket. In fact, we had the highest
caseload per district in the country, and it is still a high
caseload. I got to know Glen Conrad then, and have watched him
over the years. He ended up moving up to Roanoke. I have
followed him over the years, and when this opportunity arose
and you are thinking of who would best know this Western
District of Virginia, which covers the Piedmont with courtrooms
in Danville, Lynchburg and Charlottesville, and the Shenandoah
Valley Harrisonburg, Roanoke, Abingdon, and Big Stone Gap in
southwest Virginia. Glen Conrad's name certainly was on the top
of the list.
Here is a person who knows the judges, knows the operation
of the court, has been tested for decades, and been examined by
lawyers who have had cases before him, and litigants before
him. Judge Conrad was found to be not only experienced and
knowledgeable in the law with a ripe judicial philosophy, but
also understands how to mete out justice in a fair, equitable
way, and in a way that does not deny the litigants proper
recourse and quick, efficient justice, so that justice is not
delayed because of unnecessary procedures. He is a person who
is just outstandingly qualified.
He is a product of Virginia's education system. He received
both his undergraduate and law degrees from the College of
William and Mary. I think it is appropriate you are having this
hearing on him today because today, in 1619 in Jamestown, was
the first meeting of the first legislative body in the new
world. For Mr. Leahy, who is near Massachusetts, that is 1 year
before the Pilgrims landed for history.
Senator Leahy. We think of Massachusetts as a Southern
State where I come from.
[Laughter.]
Senator Allen. If you read the Mayflower Compact, they
thought they were landing in Northern Virginia.
[Laughter.]
Regardless, I think it is appropriate that a gentleman from
William & Mary is being considered today. He does have the
knowledge, the experience, and the qualifications.
The Virginia Bar Association, the Roanoke Bar Association,
the Virginia Association of Defense Attorneys have endorsed
him, and Judge Conrad received a highly recommended rating from
the Virginia Women's Attorney's Association.
So, Mr. Chairman and members of the Committee, Judge Conrad
is genuinely deserving of this honor. He has devoted his life
to the law, to the bench, and I know he will do a tremendous
job, and I recommend him with my highest recommendation and ask
for your prompt consideration of Judge Conrad, so he can get to
work as soon as possible because this judgeship has been
declared a judicial emergency by the National Judicial
Conference. I thank you, Mr. Chairman, and members of the
Committee, and look forward to voting for Judge Conrad on the
floor as soon as possible.
Chairman Hatch. Well, thank you, Senator Allen. We
appreciate having you here, as all of our colleagues, and it
was a great statement. You and Senator Warner are to be
complimented, helping this good man to have this opportunity.
Senator Allen. Thank you, Mr. Chairman.
Chairman Hatch. Thank you.
Senator Santorum?
PRESENTATION OF KIM R. GIBSON, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK SANTORUM, A
U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. I appreciate the
opportunity to be here and testify. I want to thank all of the
members of the Committee for their indulgence. I am here to
testify on behalf of Judge Gibson for the U.S. District Court
of the Western District of Pennsylvania. Judge Gibson is a
Common Pleas Court Judge in Somerset County, which is a rural
county that became somewhat, well, it became very famous as a
result of the events of 9/11. That is where Flight 93 crashed,
and actually Judge Gibson has been involved in some of the
follow-up work that has been done on that, in his role as a
judge and a leader in the community.
I did not know Judge Gibson prior to his name surfacing as
a result of the Committee that Senator Specter and I have put
together to go through the qualifications of applicants who
would like to be judges in the Western District. We recommended
Judge Gibson to the President because of his just outstanding
credentials.
He stood head and shoulders above a very qualified field,
and this is a man who not only is he a judge and served as a
solicitor for Somerset County and was a solo practitioner and
worked at the Public Defender's Office, but he has a very
distinguished career as a graduate of West Point, having served
8 years on active duty in the JAG Corps, 15 years as a
reservist, a commander of a unit, was deployed during Desert
Storm in 1991.
So he has served this country already in a very
distinguished capacity, and very, very well, and has a
tremendous record. He is just universally,f from left to right,
Democrat to Republican, admired in Somerset County, and came
with the full and hearty recommendation of everybody that I
have run into, and I have run into a lot as a result of this
nomination. They have been contacting me in support of Judge
Gibson.
So it is a real pleasure to be here today to recommend him
to this Committee, and I want to thank the President for making
the nomination, and I certainly hope that he is acted upon
favorably by this Committee.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Santorum. We appreciate
you and Senator Specter appearing for the judge, and we are
grateful to have you here.
Senator Santorum. Thank you very much.
Chairman Hatch. Thanks for your good testimony.
We are going to have the statements of the Chairman and the
ranking member, and then we are going to turn to the two
Senators from Michigan and Hon. Michael Rogers, who we will ask
to take their chairs up here.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Let me say, today, the Committee has the
privilege of considering the nominations of seven outstanding
lawyers to be Federal judges. I commend President Bush for
nominating each of them, and I look forward to their testimony.
The first nominee from whom we will hear is Henry W. Saad,
who has been nominated for a position on the United States
Court of Appeals for the Sixth Circuit. This is an historic
appointment.
Upon his confirmation, Judge Saad will become the first
Arab American to sit on the Sixth Circuit, which covers the
States of Kentucky, Ohio, Tennessee and Michigan. It is long
past time for this Committee to consider Judge Saad's
nomination.
He was first nominated to fill a Federal judgeship in 1992,
when the first President Bush nominated him for a seat on the
United States District Court for the Eastern District of
Michigan. The fact that he did not get a hearing may have
worked to his benefit, since he was appointed, in 1994, by
Governor Engler to a seat on the Michigan Court of Appeals. He
was elected to retain his seat in 1996 and again in 2002,
receiving broad bipartisan support in each election.
On November 8th, 2001, President Bush nominated Judge Saad
for a seat on the Sixth Circuit, the position for which we are
considering him today. When no action was taken on his
nomination during the 107th Congress, President Bush
renominated him to the Sixth Circuit on January 7th, 2003. All
told, Judge Saad has been nominated for a seat on the Federal
bench three separate times. I think it is high time this
Committee considered his nomination.
Judge Saad's credentials for this position are impeccable.
He graduated with distinction from Wayne State University in
1971 and magna cum laude from Wayne State University Law School
in 1974. He then spent 20 years in the private practice of law,
with one of Michigan's leading firms, Dickinson, Wright,
specializing in product liability, commercial litigation,
employment law, labor law, school law and libel law.
In addition, he has served as adjunct professor at both the
University of Detroit Mercy School of Law and at Wayne State
University School of Law.
Judge Saad is active in legal and community affairs. Some
of the organizations he has been involved with include
educational television, where he serves as the trustee, the
American Heart Association, Mothers Against Drunk Driving and
other nonprofit organizations that serve the elderly and the
impaired.
As a leader in the Arab American Community, Judge Saad has
worked with a variety of organizations in promoting,
understanding and good relations throughout all ethnic, racial
and religious communities. He is an outstanding role model.
Judge Saad enjoys broad bipartisan support throughout his
State, as evidenced by endorsements in his last election by the
Michigan State AFL-CIO and the United Auto Workers of Michigan.
He has received dozens of letters of support from leading
political figures, fellow judges, law professors, private
attorneys, the Michigan Chamber of Commerce and a variety of
other groups.
Let me quote from just a few of the letters received in
support of Judge Saad's nomination.
Maura D. Corrigan, chief justice of the Michigan Supreme
Court wrote, ``Henry Saad has distinguished himself as a fair-
minded and independent jurist who respects the rule of law, the
independence of the judiciary and the constitutional role of
the judiciary in our tripartite form of Government. Judge Saad
is a public servant of exceptional intelligence and integrity.
He has the respect of the bench and the bar.''
Other judges have written that he is ``a hardworking and
honorable individual'' and that he is ``an outstanding
appellate jurist with a strong work ethic.''
Roman Gribbs, a lifelong Democrat and retired judge wrote,
``Henry Saad is a man of personal and professional integrity,
is fair-minded, very conscientious and is, above all, an
outstanding jurist.''
Judge Saad has clearly earned the respect and admiration of
his colleagues on the Michigan State court bench. His
nomination does deserve consideration by this Committee. I hope
that our consideration of Judge Saad's nomination is not
overshadowed by collateral arguments about the propriety of
holding this hearing.
Let me make this absolutely clear. Holding this hearing
today is entirely consistent with the longstanding blue slip
policy of this Committee. Since I first became Chairman of this
Committee in 1995, I have followed the same blue slip policy
crafted by two former Democratic chairmen of this Committee,
Senator Kennedy and Senator Biden.
Here is the Committee's blue slip policy, as explained in a
letter by former Chairman Joe Biden, to the first President
Bush, dated June 6th, 1989. ``For many years, under both
Democratic and Republican chairmanships, the return of a
negative blue slip meant that the nomination simply would not
be considered. That policy was modified under Senator Kennedy's
chairmanship so that the return of a negative blue slip would
not preclude consideration of the nomination. A hearing and
vote would be held, although the return of a negative blue slip
would be given substantial weight.''
Chairman Biden continued to explain the blue slip policy
that the Committee would follow under his chairmanship as
follows:
``The return of a negative blue slip will be a significant
factor to be weighed by the Committee in its evaluation of a
judicial nominee, but it will not preclude consideration of
that nominee unless the administration has not consulted with
both home State Senators prior to submitting the nomination to
the Senate. If such good-faith consultation has not taken
place, the Judiciary Committee will treat the return of a
negative blue slip by a home State Senator as dispositive, and
the nominee will not be considered.''
I will submit a copy of his letter for the record.
In the case of Judge Saad, as with other Michigan nominees,
there is a clear record of consultation by the Bush White House
with the Michigan Senators. White House records indicate that
beginning on April 10th, 2001, White House Counsel Alberto
Gonzalez began discussions with the offices of the Michigan
Senators regarding the vacancies on the Sixth Circuit and in
the Eastern District of Michigan.
On May 17th, 2001, Judge Gonzalez provided the names of the
individuals being considered for the Michigan vacancies and
invited both Senators to provide feedback. The record is clear
that over the next year, through subsequent telephone
conversations, as well as written correspondence, there was
extensive consultation and repeated invitations to the Michigan
Senators to provide their input into the nomination process.
In fact, I understand the White House offered to consider
nominating both of the individuals championed by the Michigan
Senators to Federal judgeships, although I believe they were
District Court judgeships. Although President Bush ultimately
did not nominate those individuals, the consultation
requirement was undeniably fulfilled in the case of Judge Saad
and the other Michigan nominees.
I will continue to work with my friends and colleagues from
Michigan, Senators Levin and Stabenow, the White House, Senator
Leahy, and others on the Committee to reach an acceptable
resolution in filling traditional vacancies in Michigan and the
Sixth Circuit.
And while the Michigan Senator's negative blue slips have
been, and will continue to be accorded substantial weight,
indeed, I delayed a hearing on any of the Michigan nominees
because of the Michigan Senators' views. Their negative blue
slips are not dispositive under the Committee's Kennedy-Biden-
Hatch blue slip policy.
Again, I fervently hope that the debate that I anticipate
will occur in my decision to schedule this hearing will neither
distract, nor detract, from the historic significance of Judge
Saad's nomination, which was noted by Judge George Steeh, III,
a distinguished Arab American appointed by President Clinton to
the Eastern District of Michigan. He said, as quoted in the
Detroit Free Press on November 9th, 2001, that President Bush's
nomination of Judge Saad, in the wake of the September 11th
attacks, ``conveys an important message to all of the citizens
and residents of this country and that we embrace and welcome
diversity, and that we are extending the American dream to
anyone who is prepared to work hard.''
I could not agree more. Judge Saad is a fine jurist who
will make an outstanding addition to the Sixth Circuit, and I
look forward to hearing from him this morning or afternoon,
whichever the case may be.
With that, I will turn to the ranking member.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
Chairman Hatch. Is Mr. Rogers here? Take your seat.
Senator Leahy. It is unfortunate when one wants to recite
history, every so often those troubling little irrefutable
facts come in the way in the recitation. So I thought maybe I
would go over some of the irrefutable facts, which may give a
different view than my friend, the distinguished Chairman, has
just given.
Today, is the first time Chairman Hatch will ever have
convened a hearing for a judicial nominee with two negative
blue slips returned to the Committee--the first time ever. I
believe it also may be the first time any chairman, Democratic
or Republican, in any Senate Judiciary Committee, whether with
a majority of Democrats or a majority of Republicans, proceeded
with a hearing on a judicial nominee over the objection of both
home-State Senators. It is certainly the only time in the last
50 years. I know it is the only time in the 29 years I have
been in the Senate.
So, today, actually should be noted in the annals of the
Senate and of our Committee for the precedent set by this
hearing, for the hubris behind it, and for the brazenness of
the double standard it sets. In collusion with a White House of
the same party, the Senate's majority this year has launched a
lengthening series of changed practices and broken rules on
this Committee. And the White House, which seems to be calling
more and more, determining how the independent Senate will act
and more and more whittling away the independence of the
Senate, the White House, and some in the Senate, have even
suggested change in the Senate's rule to consolidate the White
House's control over the judicial nomination process.
Over the last 3 years, time and again the good-faith
efforts of Senate Democrats to repair the damage done to the
judicial confirmation process over the previous 6 years has
been met with nothing but hubris. The kind of hubris is now
also having a corrosive effect on the other body, the House of
Representatives, that we have seen very dramatically in the
past few weeks.
Now, when Chairman Hatch chaired this Committee, but not
with a Republican President, but with a Democratic President,
Bill Clinton, one negative blue slip from a Senator was enough
to doom a nomination and prevent a hearing on that nomination;
indeed, among the more than 60 Clinton judicial nominees for
this Committee did not even consider. There were several who
were blocked even though they had positive blue sips from both
their States.
It appeared so long as any Republican Senator had an
objection to the nomination of a Democratic President, that was
honored. The nomination did not go forward. For example, when
Senator Helms of North Carolina objected to an African-American
nominee from Virginia, not only from his own State, but from
Virginia, it was never allowed to go forward.
When Senator Slade Gorton, my good friend from the State of
Washington objected to nominees from California, they were held
up. Earlier this year, the Committee, under the Chairman, took
the unprecedented action of proceeding to a hearing on the
nomination of Carolyn Kuhl to the Ninth Circuit over the
objection of Senator Boxer from California.
Now, when the senior Senator from California, Senator
Feinstein, announced her opposition to the nomination as well,
I suggested to the Chairman that further proceedings on the
nomination ought to be carefully considered and we not proceed
on the nomination, especially as it was opposed by the Senators
from both that State and that was well known.
In fact, Senator Feinstein, the senior Senator from
California, has reminded the Chairman of his statements in
connection with the nomination of Ronnie White, of Missouri.
That was a nominee that got through our Committee, with both
Democratic and Republican votes, but was defeated by
Republicans in a party-line on the Senate floor.
The Chairman said had he known that both home State
Senators were opposed, he never would have proceeded, but, in a
continuing series of changes of practices and positions this
year, the Committee has proceeded to proceed with the Kuhl
nomination, and of course the party-line vote was resolved.
Now, we are making a further profound change in practices.
When the Democratic President was doing the nominating and
Republican Senators were objecting, a single objection from a
single home State Senator stalled the nomination. In fact, I do
not believe the Chairman can cite a single example of a single
time that he went forward with a hearing over the objection of
a negative blue slip of a single Republican home State Senator.
There is none.
But now the Republican President is doing the nomination,
and all of a sudden the rules just change. No amount of
objection by Democratic Senators is sufficient. It only took
one Republican to object to a nomination of President Clinton,
and now no matter if both home State Senators or Democrats
object to a nomination of President Bush, the rules are
entirely different.
Chairman overrode the objection of one home State Senator
with the Kuhl nomination, and he overrides the objections of
both home State Senators for the Michigan nomination.
I doubt we will hear from the other side of the aisle. It
is the truth of the two policies that has been followed. While
it is true various chairmen, and I admit various chairmen of
the Judiciary Committee have used the blue slip in different
ways, some actually unfairly and others toward attempting to
remedy the unfairness, it is also true that each of those
chairmen was consistent in his application of his own policy;
that is, until now.
The double standard the Republican majority has adopted
obviously depend upon the occupant of the White House, and I
suspect the White House has ignored the independence of the
Senate and is pulling the strings. But this change in practice
marks another example of the double standard.
Last week, the Republican majority chose to abandon our
historic practice of bipartisan investigation. This is
something that has always been done in the nearly 30 years I
have been here. There is an investigation, and you have both
Republican and Democrats who work closely together, so both the
Chairman and the Ranking Member get the same result, but that
has been abandoned and abandoned the meaning of consistent
practice of protecting minority rights. They did that by
changing and overruling the longstanding Committee rule that
required a member of the minority to cut off debate in order to
bring the matter to a vote.
Incidently, a rule that was put in place at the insistence
of then ranking minority member, Strom Thurmond, who wanted to
make sure the Republican minority was protected. The Republican
minority, as long as they were in the minority, they were
protected. The second the Democrats go into the minority, we
are not going to follow the rules any more. They do not have to
be protected.
Now, this week, the Committee takes another giant step in
the direction of partisanship through this hearing. Apparently,
Republican Senators will stop at nothing in their efforts to
aid and abet the White House with a Republican President in an
effort to politicize the Federal judiciary.
The Federal judiciary should not be an arm of either the
Democratic or Republican Parties. He should be independent. We
can elect Republicans, and Democrats, and Independents, and
that is fine. That is an area where they should be partisan in
the Congress or the presidency, but not in the Federal
judiciary. That should be independent.
Now, both, and what makes it more difficult is that both of
the Senators from Michigan are among the most respected members
of the Senate, both are fair-minded, both have formed
bipartisan coalitions time and time again, and both of them
have attempted to work with the White House to offer their
advice, but their input was rejected.
They have now suggested another way to end the impasse on
judicial nominations for Michigan. Their suggestion was a
bipartisan commission along the lines of a similar one in
Wisconsin. I see the distinguished Senator from Wisconsin here.
I think that is a good one.
I am familiar with these kind of bipartisan screening
commissions. Vermont, which has had, since I have been here,
Republican Senators, Democratic Senators, and now an
Independent Senator, they have used such a commission for more
than 25 years with great success. When I came here, I was the
first, and actually still the only Democrat elected in
Vermont's history to the U.S. Senate, but the then-senior
Senator, Republican Senator, worked with me to set up such a
commission.
Now, I commend the Senators representing Michigan for their
constructive suggestions and for their good-faith effort to
continue to work with the administration, even though they do
not seem to want to.
So now we are faced with a nomination from Michigan to the
United States Court of Appeals for the Sixth Circuit, opposed
by both Michigan Senators, and it appears that again we will
ignore our practices and our rules to pick a judicial fight.
Of course, if we also have time, we will probably get to
review the nominations of Michael Mosman, Judge Kim Gibson,
Glen Conrad, Judge Henry Floyd, Magistrate Judge Larry Burns,
and Judge Dana Sabraw, both nominated for the Southern District
of California, and all of whom have received very, very glowing
testimonies from their Senators of both parties. All of them
have the support of both of their home State Senators. Two of
these District Court nominations were the product of a
bipartisan Selection Commission, which has worked extremely
well for the citizens of California.
In fact, I congratulate the Senators from the State of
California and the people from the State of California for
working out that kind of a commission. I think what it
guarantees is that these are going to be consensus nominees,
and they will probably get a vote on the floor of the Senate
that will reflect the fact that they are consensus nominees.
In fact, had such a bipartisan commission been allowed to
include California's Circuit Court nominees, we might not be
faced with the divisive nomination of Carolyn Kuhl. President
Bush promised, and I was heartened by his promise on the
campaign trail, that he would be a uniter and not a divider.
Unfortunately, that was before the election, and the practice
in office with respect to judicial nominees has been most
divisive. In fact, citing the remarks of the White House, the
Lansing State Journal recently reported, for example, that the
President is simply not interested in compromise on the
existing vacancies in the State of Michigan.
Under our Constitution, the Senate has an important role in
the selection of our judiciary. It was the brilliant design of
our Founders to establish that the first two branches of
Government would work together to equip the third branch to
serve as an independent arbiter of justice, not an arm of the
Senate, not an arm of the White House, not an arm of either of
the political parties, but as an independent arbiter, and that
they relied on the checks and balances of the Senate and the
White House to make sure they would be independent.
As conservative columnist George Will wrote this past
weekend, ``A proper Constitution distributes power among
Legislative, Executive and Judicial institutions so that the
will of the majority can be measured and expressed in policy
and for the protection of minorities, somewhat limited.''
Well, the structure of our Constitution and our own Senate
rules of self-governance are designed to protect minority
rights and to encourage consensus. And despite the razor-thin
margin of recent elections, the majority party is not acting in
a measured way, but in complete disregard for the traditions of
bipartisanship that have always been the hallmark of the
Senate.
When there was a Democratic President in the White House,
as I said, Circuit Court nominees were delayed and deferred,
and vacancies in the Court of Appeals more than doubled under
Republican leadership of the Senate, from 16 in January, 1995,
to 33 when the Democratic majority took over in July of 2001.
And we then went and whittled back, but now with a Republican
President, very substantially on those.
In fact, under Democratic leadership, in spite of the
abuses by Republicans and in spite of the 6 years of them
blocking President Clinton's nominations, we proceeded to
consider and confirm two nominees to the Sixth Circuit,
notwithstanding that all of President Clinton's nominees to
that have been blocked for years.
We proceeded to confirm two more this year. The vacancies
that once plagued the Sixth Circuit have been cut in half. The
eight vacancies have been caused by the refusal of the
Republicans to consider President Clinton's nominees. The
Democrats have allowed four of them to be filled in the last
few months. The Sixth Circuit currently has more judges and
fewer vacancies than it has had in years.
Those of us who were involved in this process in the years
1995 to 2000 know that the Clinton White House bent over
backwards to work with the Republican Senators and seek their
advice. In fact, my distinguished colleague, in his brilliant
history of his own career, here in the Senate, refers to his
working with President Clinton on that.
There were many times when the White House made nominations
at the direct suggestion of Republican Senators. In fact, I was
there on some of those occasions. And there are judges sitting
today on the Ninth Circuit, and the Fourth Circuit, the
District Courts in Arizona, Utah, and Mississippi and many
other places only because of recommendations of Republican
Senators were honored by a Democratic President.
In contrast, since the beginning of his time in the White
House, the Bush administration sought to overturn traditions of
bipartisan nominating commissions that run roughshod over the
advice of Democratic Senators. They tried to change the
exemplary systems in Wisconsin, the State of Washington, and
Florida that worked so well.
So, today, despite the best efforts of two extremely well-
respected Senators from Michigan who proposed a bipartisan
commission, similar to their sister State of Wisconsin, the
administration has rejected compromise.
I object to this reversal of position for obvious partisan
gain and the unprecedented hearing, unprecedented hearing,
going as far back as we can find in 50 years, that is being
held today. I will participate in the questioning of Judge Saad
because his nomination has raised some concerns. His judicial
opinions against whistleblowers--those people who really do
protect the Government--and his opinions against victims of
discrimination, as well as his opinions on cases involving
workers' rights give me great concern about his willingness to
follow the law, but he will have a chance to answer those
questions. So I look forward to his testimony.
Senator Feingold. Mr. Chairman?
Chairman Hatch. Senator?
Senator Feingold. Mr. Chairman, I just want to make a brief
statement. I feel truly privileged to serve on this Committee.
Senator Leahy. I would ask to put my whole statement in the
record.
Chairman Hatch. Without objection, we will put the whole
statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Senator, I would like to turn to the
Senator from Michigan.
Senator Feingold. I would like to just make a brief
statement if I could.
Chairman Hatch. All right.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Obviously, I think this is one of the
most distinguished bodies in the Senate. We have jurisdiction
over issues that have a huge impact on the daily lives of our
constituents, civil rights, the prevention and punishment of
crime, the civil justice system and the Federal judiciary to
just name a few.
These are some of the most complicated and contentious
issues the Senate faces, but because of that it is in this room
that I have also been part of some of the most vigorously
intense and challenging debates of my entire career. I have
enjoyed these debates, and I have enjoyed working with my
colleagues on this Committee.
As I noted at our meeting last week, one of the things that
makes it possible for us to work together, even on these very
contentious issues is the respect for our rules and for
practices of the Committee that have developed over time. Since
the beginning of this year, I have watched with dismay as the
rules and practices that have guided this Committee's actions
and nominations for many years have been tossed aside in order
to push through the most nominees possible in the shortest
period of time.
An agreement between Senators Thurmond, Biden, Dole and
Byrd, honored since the mid-1980's, on the number of
controversial nominees to be considered in a single hearing,
the minimum time for the minority to prepare for a hearing
after a nominee's file is complete, and the timing of Committee
votes after a hearing is held has now, for all intents and
purposes, been eliminated.
Nominees are now routinely scheduled for a Committee vote
before questions have even been asked, much less answered. The
rule that allows any matter to be held over for a week has been
essentially eliminated. And, of course, Committee Rule IV,
which had been in effect as a protection for the minority since
1979, has been violated twice, even after an agreement was
reached to reinstate it after the first violation.
With this hearing today, Mr. Chairman, we are overthrowing
another longstanding practice of the Committee. This one, as
the Ranking Member discussed, dates back more than a century.
Both Michigan Senators who are with us today have expressed
their opposition to this nominee by returning negative blue
slips. Yet we are having a hearing in this Committee.
For years, Mr. Chairman, you refused to have hearings on
nominees put forward by President Clinton, and you often cited
objections from only one home State Senator. Once again, the
rules have changed based on the politics of the moment rather
than based on any recognizable principle. I think that is very
unfortunate.
We all know the history of the vacancies on the Sixth
Circuit. One Clinton nominee for that circuit, Judge Helene
White, holds the dubious distinction of being the nominee who
waited the longest for the courtesy of a hearing, in vain. She
was pending in this Committee for over 4 years. She never got a
hearing. And, remember, both blue slips were returned on her
nomination.
So this is the circuit where consultation and compromise is
most needed, but the White House has steadfastly refused. Even
with four vacancies, this White House could not find a way to
reach out to Senators Stabenow and Levin and try to make amends
for the shabby treatment of Helene White and Kathleen McCree
Lewis.
This White House has made all four nominations without
working with the two Senators from Michigan. It has refused all
overtures by the Senators to try to work together and come up
with a compromise that would have led to the four seats being
filled long ago.
Now, I want to see these vacancies on the Sixth Circuit
filled. I want there to be judges working hard to bring fair
and equal justice to the people of Michigan, Ohio, Kentucky,
and Tennessee. What is happening here today is not helping to
break this deadlock. I have little doubt that the vast majority
of our caucus will support the two Senators from Michigan in
their fight to be adequately consulted on judges who will sit
in their State.
Mr. Chairman, this is another sad day among many that we
have had on judicial nominations. I do welcome the nominees and
their families, and I am sorry that what should be a day of
celebration and pride is instead another day of controversy.
But I felt I had to comment on the continued uprooting of the
Committee's rules and practices.
Thank you for letting me speak, Mr. Chairman.
Chairman Hatch. Well, thank you, Senator. As you know,
there is a real dispute over whether the rules have been
violated or not, with our side taking a different position from
yours. I have to say in the case of Ronnie White, at least he
got a vote. He may have been defeated, but he at least got a
vote. That is something that a lot of our nominees are not
getting. And every one of the cases cited by my friend from
Vermont has an argument and an answer to it. I will not take
time to do that now.
I would just mention that Mr. Saad has been blocked through
three nominations for 11 solid years, so--well, maybe not solid
years, but he was first nominated in 1992 and has been
nominated three times, and, unfortunately, he is caught in this
controversy, which I am trying to solve. I believe Presidents,
their nominees, their executive nominees, especially judges,
deserve votes. They deserve up-and-down votes. If you don't
like them, vote against them. If you like them, vote for them.
But we are finding that we are not doing that.
Having said that, let me just turn to our two distinguished
Senators from Michigan. I have a high regard for both of them.
It is unfortunate that we have to be at this crossroads. I
don't always feel good about these conflicts and these
problems. I certainly don't feel good about the politics
involved. But as long as I have known Senator Levin, which is a
long time, he has always been straightforward, has always been
fair, and I know that he differs with the administration and
perhaps with me on this, and I respect him. Senator Stabenow,
who has been a hard-working Senator ever since she has been
here, and we are grateful to have both of you here, and then we
will turn to Michael Rogers at the end. But we have agreed to
give an extraordinary amount of time to the three of you, which
is right, I think, under these circumstances. And I intend to
listen to your comments.
I might have to get up and go out a couple of times. If I
do, it is not out of disrespect. Please understand that. But we
will start with you, Senator Levin, and then we will go to
Senator Stabenow, and then we are honored to have Hon. Michael
Rogers from the House of Representatives here, and we look
forward to hearing your testimony as well.
Senator Levin?
STATEMENT HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF
MICHIGAN
Senator Levin. Thank you, Mr. Chairman. We appreciate the
opportunity to appear before this Committee today. We obviously
would have preferred that our appearance be under different
circumstances.
We oppose the decision to proceed with this nomination and
the other nominations for Michigan vacancies without addressing
serious concerns that we have raised regarding fundamentally
unfair treatment of Michigan judicial nominees during the
previous administration.
This Committee last held a hearing on a nominee for a
Michigan vacancy on the Sixth Circuit on May 7, 1997, more than
6 years ago and more than 3\1/2\ year before President
Clinton's term expired.
The fact that the last 3\1/2\ years of the Clinton
Presidency passed without a hearing on Michigan's Sixth Circuit
nominees was not because there were no Michigan vacancies on
that court. It was not because President Clinton failed to
submit nominees for those vacancies. And it was not the result
of questions about the character or the qualifications of the
President's nominees to those vacancies. Rather, it resulted
from Senator Abraham's decision to refuse to return his blue
slips on the nomination of Michigan Court of Appeals Judge
Helene White and Kathleen McCree Lewis.
The record shows that this Committee honored Senator
Abraham's refusal to return those blue slips. But even after
Senator Abraham finally returned his blue slips on the two
nominations in the spring of 2000, the two women were not given
hearings. That distortion of the judicial nominating process
was grossly unfair to the two nominees and deprived the
previous administration of the consideration by the Senate of
those two nominees.
We seek a just resolution, and Senator Stabenow and I have
returned the blue slips with objections to proceeding to the
current nominees until that resolution is achieved.
As we have expressed to you personally, we believe that
moving forward without resolving the impasse in a bipartisan
manner could deepen partisan differences and make future
efforts to resolve this matter more difficult. The number of
Michigan vacancies on the Federal courts provide an unusual
opportunity for a bipartisan compromise. Efforts to forge
compromise so far have not been successful, but we hope those
efforts will continue.
In order to fully understand our concerns, a brief history
of the Michigan vacancies on the Sixth Circuit is in order.
Judge Helene White was nominated to a vacancy on the Sixth
Circuit on January 7, 1997, after Judge Damon Keith assumed
senior status. I returned my blue slip on Judge White's
nomination. Senator Abraham did not.
More than 10 months later, on October 22nd, Senator Leahy,
as Ranking Member of this Committee, delivered what would be
the first of at least 16 statements on the Senate floor, made
over a 4-year period, regarding the Sixth Circuit nominations.
He called for the Committee to act on Judge White's nomination.
His appeal, like the others that were to follow, was
unsuccessful.
For instance, on October 21, 1998, more than a year and a
half after Judge White was nominated, Senator Leahy returned to
the floor, where he warned that, ``At each step of the process,
judicial nominations are being delayed and stalled.'' His plea
was ignored. Senator Abraham's blue slip remained unreturned,
and the 105th Congress ended without a hearing for Judge White.
In January 1999, President Clinton again submitted Judge
White's nomination. That day, I sent one of many notes to both
Senator Abraham and Chairman Hatch. In that letter, I said that
the 105th Congress had ended without Judge White being granted
a Judiciary Committee hearing and suggested that fundamental
fairness dictated that she receive an early hearing in the
106th Congress. Still no blue slip from Senator Abraham. His
decision was honored and, again, no hearing.
On March 1, 1999, Judge Cornelia Kennedy took senior
status, opening a second Michigan vacancy on the Sixth Circuit.
The next day, Senator Leahy returned to the floor, repeated his
previous statements that nominations were being stalled, and
raised Judge White's nomination as an example.
The exercise of the blue slip power by Senator Abraham was
clearly motivated during this period by his repeated efforts to
obtain the nomination by President Clinton of Jerry Rosen, a
district court judge in the Eastern District of Michigan, for
Judge Kennedy's seat. However, in September of 1999, President
Clinton decided to nominate Kathleen McCree Lewis to that seat.
Soon thereafter, I spoke with Senator Abraham about the
Lewis and White nominations. It had been more than 2-1/2 years
since Judge White was first nominated. Twice in the next 6
weeks, Senator Leahy urged the Committee to act, calling the
treatment of judicial nominees ``unconscionable.''
On November 18, 1999, I again wrote Senator Abraham and
Chairman Hatch, urging hearings in January of 2000 for the two
Michigan nominees. At that time, I noted that Judge White had
been waiting for nearly 3 years for a hearing. I stated that
the confirmation of the two women was ``essential for
fundamental fairness.'' My appeals were for naught and 1999
ended without Senator Abraham's blue slips and, therefore,
without Judiciary Committee hearings.
In February of 2000, Senator Leahy again spoke on the
Senate floor about the multiple vacancies on the Sixth Circuit.
Less than 2 weeks later, I made a personal plea to Senator
Abraham and Chairman Hatch to act on the Michigan nominees.
Again, I was unsuccessful. Senator Abraham's blue slips
remained unreturned, and no hearing was scheduled.
On March 20th of the year 2000, the chief judge of the
Sixth Circuit sent a letter to Chairman Hatch expressing
concerns about an alleged statement from a member of this
Committee that, ``due to partisan considerations,'' there would
be no more hearings or votes on vacancies for the Sixth Circuit
Court of Appeals during the Clinton administration. The judge's
concern would turn out to be well founded.
Finally, on April 13, 2000, Senator Abraham returned his
blue slips for Judge White and Ms. Lewis, without indicating
approval or disapproval. I had previously understood that
Senator Abraham's decision not to return blue slips on the two
nominees had prevented them from being granted a Judiciary
Committee hearing. So the day that Senator Abraham returned his
blue slips, I not only spoke to Chairman Hatch, but I also sent
him a letter reminding him that blue slips had now been
returned on the two nominations, expressing my concern about
the unconscionable length of time the nominations had been
pending, and urging that they be placed on the agenda of the
next Judiciary Committee confirmation hearing. Again, my
efforts were unsuccessful. That hearing passed without the
Michigan nominees being on the agenda.
On May 2, 2000, I tried again and sent another note to
Chairman Hatch, but neither Judge White's nor Ms. Lewis's
nominations were placed on the Committee's hearing agenda then,
or ever. Over the next several months, Senator Leahy went to
the floor ten more times to urge action on the Michigan
nominees, and more than once I also raised the issue on the
Senate floor.
In the fall of 2000, in a final attempt to move the
nominations of the two Michigan nominees, I met with Majority
Leader Lott to discuss the situation. And on the 12th of
September, I sent him a letter saying that, ``The nominees from
Michigan are women of integrity and fairness. They have been
stalled in the Senate for an unconscionable amount of time
without any stated reason.'' Neither the meeting with Senator
Lott nor the letter prompted this Committee to act on the
nominations, and the 106th Congress ended without hearings for
either woman.
Judge White's nomination was pending for more than 4 years,
the longest period of time any circuit court nominee has waited
for a hearing in the history of the United States Senate. Ms.
Lewis's nomination was pending for more than a year and a half.
Senator Abraham's refusal to return blue slips on the White
and Lewis nominations did not relate to either woman's
qualifications; rather, his refusal stemmed from his effort to
persuade the White House to nominate Jerry Rosen, his preferred
nominee to the Cornelia Kennedy seat on the Sixth Circuit. That
unreturned blue slips of one Republican Senator precluded
Judiciary Committee consideration of two nominees of a
Democratic President, but two negative Democratic blue slips do
not prevent the Committee from now proceeding with hearings for
a nominee of a Republican President is simply not acceptable.
At least one version of Judge White's and Ms. Lewis's blue
slips read the following: ``No further proceedings on this
nominee will be scheduled until both blue slips have been
returned by the nominee's home State Senators.''
In 1997, when asked by a reporter about a Texas nominee
opposed by that State's Republican Senators, Chairman Hatch
said, ``The policy is that if a Senator returns a negative blue
slip, that person's going to be dead.''
And on October 7, 1999, Chairman Hatch said, with respect
to the nomination of Judge Ronnie White, ``I might add, had
both home State Senators been opposed to Judge Ronnie White in
Committee, Judge White would never have come to the floor under
our rules. I have to say that that would be true whether they
are Democrat Senators or Republican Senators. That has just
been the way the Judiciary Committee has operated.''
During the entire Clinton Presidency, it is my
understanding that not a single judicial nominee--not one--got
a Judiciary Committee hearing if there was opposition by one
home State Senator, let alone two. Both home State Senators now
oppose proceeding with President Bush's Michigan judicial
nominees absent a bipartisan approach.
Inconsistencies in the Committee's blue slip policy are
troubling. But equally troubling is that even after their blue
slips were returned by Senator Abraham, Judge White and Ms.
Lewis were still denied hearings. Senator Abraham returned his
blue slips in April 2000, providing more than enough time for
the Committee to hold a hearing. What happened? Please listen
to what Kent Markus of Ohio said about President Clinton's
Sixth Circuit nominees.
Professor Markus was nominated by President Clinton in
February of 2000, also to fill a vacancy on the Sixth Circuit.
Both home State Senators indicated their approval of his
nomination. Nevertheless, he was not granted a Judiciary
Committee hearing. His troubling account of that experience
sheds added light on the Michigan situation. In his testimony
before this Committee last May, this is what Professor Markus
said:
``To their credit, Senator DeWine and his staff and Senator
Hatch's staff and others close to him were straight with me.
Over and over again, they told me two things: one, there will
be no more confirmations to the Sixth Circuit during the
Clinton administration; and, two, this has nothing to do with
you, don't take it personally, it doesn't matter who the
nominee is, what credentials they may have, or what support
they may have. See item number one.''
And Professor Markus continued: ``On one occasion, Senator
DeWine told me, `This is bigger than you and it's bigger than
me.' Senator Kohl, who had kindly agreed to champion my
nomination within the Judiciary Committee, encountered a
similar brick wall. The fact was a decision had been made to
hold the vacancies and see who won the Presidential election.
With a Bush win, all those seats could go to Bush rather than
Clinton nominees.''
Senator Stabenow and I are not alone in the view that we
hold that what occurred with respect to these nominees was
fundamentally unfair. On more than one occasion, Judge
Gonzales, the current White House counsel, has acknowledged
that it was wrong for the Republican-led Senate to delay action
on judicial nominees for partisan reasons, at one point even
calling the treatment of some nominees during the Clinton
administration ``inexcusable.''
Mr. Chairman, I doubt that any member of this Committee or
of the Senate from either party would simply acquiesce if
confronted with this set of facts. Senator Stabenow and I are
determined to do what we can to see to it that the tactic used
against the two Michigan nominees does not succeed. But we are
equally determined to see a bipartisan solution. In order to
achieve a fair resolution of this past injustice, Senator
Stabenow and I have proposed a bipartisan commission to
recommend nominees to the President. Similar commissions have
been used in other States. That commission would not guarantee
a recommendation for any particular individual, much less the
nomination of any particular individual, since that is
obviously up to the President. Yet that proposal has been
rejected.
Mr. Chairman, all of us have an opportunity to seek a
bipartisan solution to the problem, avoiding a highly divisive
and acrimonious debate. With this number of vacancies, we have
an unusual opportunity to find a better path for consideration
of judicial nominees. Finding that path would be of great
benefit, not just as a solution to this problem but to set a
positive tone for the resolution of other disputes perhaps as
well.
As to the qualifications of the nominee before you today,
we would ask that the Committee hold the record open so that we
can complete our vetting process. Our process began just a week
and a half ago when we were suddenly--and, I may say,
surprisingly--confronted with the decision that our blue slip
objections, which we based on the procedural history just
outlined, would be ignored.
Each of us who was here over the past several years knows
what occurred with respect to the two Michigan nominees to the
Sixth Circuit. And I believe that every one of us here at that
time knows that what occurred was unfair to those nominees. All
of us can contribute to the resolution of this situation.
Notwithstanding that today's hearing is being held over our
objection, we still have time to reach a bipartisan compromise
and to move forward together, and I hope that we can do just
that.
Thank you.
Chairman Hatch. Thank you, Senator. We appreciate having
your viewpoint.
Senator Levin. And I would ask unanimous consent that the
letters that I referred to be made part of the record.
Chairman Hatch. Without objection, we will make them part
of the record.
Senator Stabenow, we will turn to you?
STATEMENT OF HON. DEBBIE STABENOW, A U.S. SENATOR FROM THE
STATE OF MICHIGAN
Senator Stabenow. Well, thank you, Mr. Chairman.
First, I would thank you and members of the Committee for
allowing me and allowing Senator Levin to have the opportunity
to address you today on this important issue. I completely
agree with Senator Levin's testimony, and I thank him for his
leadership in trying to bring fairness to the nomination
process in the Sixth Circuit Court of Appeals. I also welcome
Judge Saad to the hearing.
Since I did not come to the Senate until 2001, I want to
focus on the future, having supported Senator Levin's
testimony. Senator Levin has clearly outlined the history of
how two highly qualified women failed to get a hearing before
this Committee for more than 4 years and 1\1/2\ years,
respectively.
Mr. Chairman, it seems to me that the best way to end this
impasse is to forge a bipartisan compromise. If the
administration and Senator Levin and I do not do so, I am
concerned that this struggle between the two branches of
Government will continue for some time. Senator Levin and I
have proposed to settle this conflict, as has been indicated,
by appointing a bipartisan commission to make recommendations
to the White House on judicial nominations. Our proposal would
be based on a commission that is up and working just across
Lake Michigan in Wisconsin.
The State of Wisconsin commission has produced bipartisan
nominees for both the district and the circuit courts since its
inception under the Carter administration. In fact, just
recently, the Republican Chairman of the House Judiciary
Committee, Representative James Sensenbrenner, joined
Wisconsin's two Democratic Senators, Senators Kohl and
Feingold, in announcing the renewal of their commission to
recommend to the President nominees for Wisconsin vacancies on
the Seventh Circuit Court of Appeals.
Mr. Chairman, since he is your counterpart on the House
Judiciary Committee, I am sure you know Congressman
Sensenbrenner well, and you know that Chairman Sensenbrenner
probably has a great deal of political and policy differences
with Senators Kohl and Feingold. But for the sake of balance
and fairness, he agreed to help form the bipartisan Wisconsin
commission, and I commend all of those involved in that
process.
And according to press reports, Chairman Sensenbrenner has
said that the White House is ``willing to go through the
commission process'' for an appeals court nominee from
Wisconsin.
The Wisconsin commission includes representatives from the
Wisconsin Bar Association, the deans of the State's law
schools, as well as members appointed by both Republicans and
Democrats, and they only recommend qualified candidates that
have the support of the majority of the commission. The
President then looks to the recommendations of the commission
when making his nominations. The Wisconsin commission's
recommendations have always been followed by the President,
Democrat or Republican. Regardless of their political party,
they have always been followed.
This type of commission preserves the constitutional
prerogatives of both the President and the Senate. It allows
the President to pick one of the recommended nominees and
protects the Senate's advise and consent role.
Mr. Chairman, Wisconsin is not the only State, as we all
know, where this type of bipartisan commission works. In a
similar form, it has worked in several other States, including
Washington State, California, and, as the esteemed Ranking
Member indicated, in Vermont.
I strongly believe that this is the best way to correct
this current situation, and I would ask that the members of
this Committee support such a bipartisan solution. If this
process is good enough for Wisconsin, if this process is good
enough for Congressman Sensenbrenner, why is it not good enough
for us in Michigan? It would take almost no time to set up a
similar commission in Michigan, and we are prepared to do so to
move this process along.
Senator Levin and I are interested in finding a bipartisan
solution to this problem. If we can agree on a commission, we
are willing to accept recommended nominees even if they are not
Helene White or Kathleen Lewis or any other person we would
choose if it were up to us.
Let's let a bipartisan commission work, and we all will let
the chips fall where they may. Mr. Chairman, let's look to the
future and restore civility to this process. This has gone on
too long.
I urge all the members of this Committee to support this
bipartisan solution, and I would like to thank you again for
allowing us to testify. I would be happy to answer questions,
and I am hopeful that we can join together in resolving this
issue.
Chairman Hatch. Thank you, Senator Stabenow. We appreciate
your remarks.
Congressman--
Senator Levin. Mr. Chairman, I am wondering if I could be
excused at this time.
Chairman Hatch. You sure can.
Senator Levin. Thank you.
Chairman Hatch. We know how busy you are, and we are happy
to do so.
Congressman Rogers, we will take your testimony now.
PRESENTATION OF HENRY W. SAAD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT, BY HON. MICHAEL ROGERS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Representative Rogers. Thank you, Mr. Chairman. Good
morning, and Senator Leahy as well. Thank you for allowing me
to testify today along with the members of the Committee,
Senator Levin, and Senator Stabenow. I certainly appreciate the
opportunity to be here today.
I have the very great privilege to be here today to
introduce a great jurist who is not only a personal friend, but
someone who has distinguished himself in the practice of law.
But, first, Mr. Chairman, I would like to say I appreciate all
that you have gone through to come to the conclusion to hold
this hearing today. In talking with you personally, your staff,
and the administration, the anguish in which you reached this
conclusion should be noted for the public. This has not been a
political decision for you. This has been a decision about
justice and fairness and balance.
There are some extenuating circumstances that have brought
us all here today. I have heard the word ``unprecedented''
several times, and I certainly won't get into the intricacies
of Senate rules. But we do have something that is
unprecedented. The Administrative Office of the U.S. Courts has
deemed the circumstances in the Sixth Circuit Court a
``judicial emergency''--unprecedented. Nearly 40 Assistant
United States Attorneys wrote letters speaking to the dangers
of the vacancies of this court to bringing justice to the
people for the Sixth Circuit--also unprecedented.
I am not here today, Mr. Chairman, to argue and debate the
Senate rules, as my fellow colleagues from Michigan have done.
But I do believe, today, that the victim is not the Senate
rules, if this hearing does not go forward and certainly the
nomination be confirmed for Henry Saad and the others on the
Sixth Circuit. But the real victims will be those of terrorism,
of organized crime, of white-collar criminals and drug cartels.
Some 435-plus cases are now being held up in the Sixth Circuit
because of the vacancies and the lack of the Circuit's ability
to process these cases. That and those folks, Mr. Chairman, are
the true victims.
But I do not want to forget why we are here. I am here for
something pretty spectacular, a great moment in someone's life
to have the opportunity to be here for a hearing to serve the
people of the United States in the Federal courts. And I would
ask not only a good friend of mine but, again, a great jurist,
Mr. Saad, if he would please stand up and introduce his guests
who are here with him today, with your indulgence, Mr. Chair.
Henry?
Judge Saad. Thank you. Thank you, Mr. Chairman. With me
today are my son, Andrew Saad, who is here from college. My
oldest son, Edward, who is practicing law in New York, is, I
believe, probably practicing law in New York.
Also with me today is Mara Letica; her son, Kyle Johnson;
my law clerk, Melissa Taylor; my secretary of long standing,
Margot Stallard; my other good friend, J.P. Mackley. I am sure
I missed some other people. And I appreciate the introduction,
and I appreciate the courtesy to appear before you.
Chairman Hatch. We are happy to have all of you here.
Thanks for introducing them, Judge Saad.
Representative Rogers. Thank you, Mr. Chairman. Thank you,
Henry. And I just wanted to go over a little bit--you did a
great job, Mr. Chairman, talking about his background. I just
want to cover some different things, if I may.
Judge Henry Saad is a distinguished court of appeals judge
with over a decade of experience on the bench. He has sat on
the Michigan Court of Appeals since 1994, having been re-
elected twice with bipartisan support. And I can speak
personally to that, Mr. Chairman. I actually campaigned with
Mr. Saad on the first time in some very, very Democrat areas of
my district, and it was overwhelming, the support and
admiration those communities had for Mr. Saad.
The American Bar Association rated Judge Saad as qualified
to sit on the U.S. Court of Appeals for the Sixth Circuit. The
nomination, and I hope confirmation, of Judge Saad is a
testament to the American dream and the ideals upon which our
Nation is moored.
Born in Detroit to parents of Lebanese descent, Judge Saad
is the first person in his family to attend college. Now the
son of a welder for one of Detroit's automakers stands on the
threshold of becoming the first Arab American appointee to the
Sixth Circuit Court. The importance of Judge Saad's nomination
to our Nation's Arab American communities and really all
minority communities cannot be understated. Hailing from
Michigan, which possesses over 400,000 citizens of Arab
descent, I am acutely aware of the positive message sent by
Judge Saad's nomination to the Federal bench. At a time when
many Arab American communities are suspect of their Government,
the Arab American community needs Judge Saad as a role model.
In addition to being a leader in Michigan's Arab American
community, Judge Saad has continually sought to bring together
people of differing faiths. He was a board member of the
National Council of Christians and Jews after founding the
American Arabic and Jewish Friends, which is now a subsidiary
of the National Conference of Community and Justice.
Distinguished attorney and former Labor Department
Solicitor General George Salem said it best, and I quote,
``Judge Saad has spent his career building good relations with
all ethnic communities.''
While diversity on the Federal bench, Mr. Chairman, is
important, there is no doubt that Judge Saad also possesses the
judicial temperament consistent with an independent Federal
judiciary. However, do not just take my word for it. Here are
what some of Judge Saad's colleagues, both Republicans and
Democrats, have to say regarding his fitness for the Sixth
Circuit Court of Appeals, and I quote:
``Judge Saad personifies the ideal judicial temperament we
all seek and admire.'' Roman Gibbs, former Democrat Mayor of
Detroit.
``Despite allegiances to different political parties, we
almost always resulted in a consensus. Henry is known and
respected as a scholar and great member of our court.''
Michigan Appellate Court Judge Mark Cavanaugh.
``Judge Saad has indeed sought common ground and often
achieved it.'' Alan May, Vice Chair, National Conference for
Community and Justice.
I quote: ``Judge Saad is a person of the highest integrity
and ability and a person deeply committed to the rule of law
under the Constitution.'' Robert Sedler, professor of law and
counselor to the American Civil Liberties Union.
Those testimonials, Mr. Chairman, are all from individuals
affiliated directly or indirectly with the Democrat Party in
the State of Michigan. And they reveal that Judge Saad is the
embodiment of the independent Federal judiciary. Additionally,
it is my understanding that Jim Zogby, the president of the
Arab American Institute and a prominent Democrat activist, is
also sending a letter of support to the Committee on behalf of
Judge Saad.
Please allow me to share just a few more of these from two
very, very respected jurists in Michigan's legal community.
``Judge Saad is one of the most thoughtful and fair-minded
jurists on the court.'' Stephen Markman, Michigan Supreme Court
Justice and former Senate Judiciary Committee staff member, and
that ought to say it all for you, Mr. Chairman.
Chairman Hatch. That says a lot.
Representative Rogers. And I quote again: ``Henry Saad has
distinguished himself as an independent jurist who respects the
rule of law, the independent of the judiciary, and the
constitutional role of the judiciary.'' Maura Corrigan,
Michigan Supreme Court Chief Justice.
Now, in the courtroom, Judge Saad has served the citizens
of Michigan with competence and integrity. He has significant
appellate experience in both civil and criminal matters,
authoring well over 75 published majority opinions. The respect
afforded Judge Saad is best exemplified by the broad bipartisan
support of his nomination to the Federal appellate bench.
Groups as disparate as the United Auto Workers and the Michigan
Chamber of Commerce have endorsed his nomination.
Furthermore, Judge Saad was asked to serve on the Iraqi
Advisory Committee of the American Bar Association by former
Detroit Mayor and incoming American Bar Association President
Dennis Archer.
Like any public servant, Judge Saad is dedicated to
improving the law and helping his State and local community
through volunteer work. Judge Saad was the Chairman of the
board of the Oakland Community College Foundation, president of
the Wayne State University Law School Alumni Association, and
he is currently a member of the Board of Visitors of the Ave
Maria Law School.
Additionally, in 1997, Judge Saad received the Salute of
Justice, John O'Brien Award for Outstanding Volunteer Service
to the People of Oakland County. In 1995, he received the Arab-
American and Chaldean Council Civic and Humanitarian Award for
Outstanding Dedication to Serving the Community with Compassion
and Understanding.
I think, Mr. Chairman, we have made quite clear his
qualifications, and the good news in all of this is my two
esteemed colleagues in the Senate, Senators Levin and Stabenow,
don't question the qualifications of Henry Saad to serve on the
U.S. Circuit Court of Appeals. But while my primary mission
today is to introduce my good friend and distinguished jurist,
I would be remiss if I did not take the opportunity to address
the emerging judicial crisis surrounding the Michigan nominees
of President Bush to the Sixth Circuit.
The fact is today represents the first hearing for a
Michigan judicial nominee for over 2\1/2\ years into the Bush
administration. Just as there is no dispute over Judge Saad's
qualifications to serve on the Sixth Circuit, the same holds
true for the remaining three Michigan nominees to the Federal
appellate bench. The other judges--Honorable Richard Allen
Griffin, Honorable David McKeague, and Susan Bieke Neilson--are
all distinguished jurists who have served the citizens of
Michigan with competence and integrity. All of Michigan's four
appellate nominees have received favorable ratings from the
American Bar Association and have widespread bipartisan support
and respect from the legal community.
Senator your decision today to initiate hearings on the
Michigan Four, as they have become known back home, is
commendable, but only a start. Fairness to these judges and to
the American citizens who seek the timely administration of
justice requires that these nominees be provided not only a
hearing but also a vote in the full Senate. The continued
wholesale blocking of Michigan nominees, despite their
unquestioned merit, is inconsistent with the dignified
traditions of the United States Senate.
Of course, it should also be noted that the wholesale
blockade of Michigan nominees also extends to district court
nominees Thomas Luddington and Dan Ryan as well.
Moreover, the Sixth Circuit is critically understaffed as
these nominees have been nominated to fill vacancies that have
been designated--and I repeat again because it is this
important, Mr. Chairman--by the non-partisan National Judicial
Conference as ``judicial emergencies''--again, unprecedented.
Additionally, the United States Attorney's Office for the
Eastern District of Michigan issued a formal letter indicating
that the severe understaffing in the Sixth Circuit hinders
effective prosecution of criminal cases. Post-9/11, with all
going on in the world today, Mr. Chairman, hardly do we find
that acceptable circumstances. Again, unprecedented.
In fact, the partisanship currently surrounding the
Michigan Four is a recent phenomenon because there is a strong
record of bipartisanship relating to former President Clinton's
Federal judiciary nominees from Michigan, and I just want to go
over these real quickly, Mr. Chairman, if I may.
Michigan Senator Spencer Abraham, a Republican, supported,
even chaired the confirmation hearing for Hon. Eric Clay, who
was President Clinton's first nominee to the Sixth Circuit
Federal Court of Appeals. With then-Senator Abraham's strong
support, Judge Clay was the first Clinton administration
Federal appellate court nominee to get a hearing in the 105th
Congress and the second to be confirmed by the Senate. Of 16
judgeships on the Sixth Circuit, Judge Clay continues to be the
only Michigander.
The bipartisanship during the Clinton administration did
not end with Judge Clay. Then-Senator Abraham also supported
Clinton Federal district court nominees Arthur Tarnow, George
Steeh, Victoria Roberts, Marianne Battani, and David Lawson.
These five judges, all with Senator Abraham's support, are now
judges on our Federal court.
As you see, the partisanship surrounding Michigan judges is
only of recent vintage. Unfortunately, Mr. Chairman, the
citizens of Michigan are in grave jeopardy of losing Michigan's
voice on the Sixth Circuit. Four seats, one-quarter of the
circuit's membership, hang in the balance, and it would be an
injustice for the people of Michigan to lose their
representation in the judicial process.
Mr. Chairman, as elected officials, we should work together
to promote the system of justice that is timely, fair, and
ensures Michigan's residents are represented by Michigan
judges. Again, this hearing is a step in the right direction,
and I applaud you for the courage to proceed with this hearing
and steadfastly urge without delay the swift confirmation of
Judge Henry William Saad to the U.S. Court of Appeals for the
Sixth Circuit.
Mr. Chairman, I thank you, and I would ask that this place
be the place where we seek justice and not seek retribution for
at least perceived wrongs in the past. The fact that we do have
a whole series of unprecedented events with the judicial
emergency declaration and the Assistant United States Attorneys
declaring the dangers of the vacancies of this court, I applaud
again your courage for having this Committee hearing and
nomination process, and I would hope that we could find that
thoughtful debate and end what unfortunately has become a very
partisan temper tantrum and come to the conclusion that justice
should be brought to the people of Michigan in the Sixth
Circuit. And I thank you very much, Mr. Chairman and Ranking
Member, for the opportunity to testify today.
Chairman Hatch. Thank you, Congressman Rogers. We
appreciate your taking the time--
Senator Leahy. Mr. Chairman, if I might, when you finish, I
want to say something while he is still here.
Chairman Hatch. Sure. We appreciate your taking time to
come over.
Senator Leahy. I want to say it while he is still here.
Chairman Hatch. No, I understand. If you will wait so
Senator Leahy can also make a comment. I know it is tough to
give this kind of time over on this side of the Hill, but we
are happy to have you here, and we appreciate your remarks.
Senator Leahy would like to say something.
Senator Leahy. I also thank the Congressman for coming over
here. He has been very patient. He has been here all morning,
and I know with his workload that is also difficult, and his
willingness to come here when he is not in session, when the
other body is on recess, so I appreciate doubly your taking the
time.
Representative Rogers. Thank you, Senator.
Senator Leahy. I was a little bit concerned hearing some of
your statistics, and I know you did not intend this impression.
But when you spoke of the vacancies, you understand that for 5
years there were nominees by President Clinton to fill some of
those vacancies. They were never allowed to have a hearing or a
vote. Had they been allowed that, had President Clinton's
nominees been allowed to even be voted on, there wouldn't have
been a vacancy.
When I became Chairman, I very quickly after I became
Chairman, even though these vacancies were all--by sworn
statement, were kept vacancies so that President Clinton
couldn't nominate anybody. Notwithstanding that, shortly after
I became Chairman, I held the first hearing on a Sixth Circuit
nominee in, I think, 5 years. It was President Bush's nominee.
And we have now confirmed four. We have actually had--since
then we have had a 50-percent increase between the time I was
Chairman and Senator Hatch again was Chairman, we have had a
50-percent increase in the number of active judges on the
court, four judges confirmed--Rogers, Gibbons, Sutton, and
Cook. I just didn't want to leave the impression that nothing
has been done nor that vengeance was taken because people
nominated by President Clinton for the Sixth Circuit were not
allowed to have hearings.
In fact, as I said, the first such hearing in 5 years was
one I held on one of President Bush's nominees, and we have put
in four judges and confirmed four judges to that circuit since
then.
Chairman Hatch. Well, maybe before you leave, Congressman,
if you could give a few more minutes, we have a vote on, but I
will just make some short comments, and then we will go to the
vote and recess and come right back.
Let me first point out that the current controversy about
Michigan nominees dates back more than a decade. At the end of
President George Herbert Walker Bush's administration, Bush I,
two Michigan nominees to the Federal courts, John Smetanka and
Henry Saad--who is before us today--never got hearings in the
Democratic-controlled Senate and failed to attain confirmation.
Judge Saad has been waiting for 11 years.
As President Clinton named his nominees to fill judicial
vacancies, there was no expectation, let alone demand, that the
two previous nominees be renominated by a new administration.
Accordingly, President Clinton did nominate Michigan nominees
to both the Sixth Circuit and the district courts. In fact,
nine of those nominees were confirmed. A majority were
confirmed during Republican control of the Senate; in other
words, Clinton nominees.
Two nominees, Helene White and Kathleen McCree Lewis,
failed to attain confirmation. Now, I feel badly about that.
The primary criminal for their failed nomination was the lack
of consultation with one of the home State Senators, which is
an absolute must in this process. And there was none.
In his letter to the then-White House Counsel Beth Nolan,
Senator Abraham wrote to express his astonishment and dismay
that President Clinton forwarded the nomination for a Sixth
Circuit seat without any advance notice or consultation. What
was particularly troubling was that Senator Abraham had worked
with the previous White House counsel, Mr. Ruff--a great man,
by the way--to improve the consultation process.
In fact, despite previous difficulties, Senator Abraham had
fully cooperated with the administration in advancing the
nominations of a number of Michigan nominees. Unfortunately,
the situation again deteriorated, and the White House reverted
to its previous pattern of lack of consultation.
In fact, Senator Abraham was not consulted and, in fact,
was told by the White House counsel that, despite earlier
representations, the administration felt under no real
obligation to do anything of the kind, which is unprecedented.
And because of the White House's lack of consultation, the
nominations of the two individuals did not move forward.
Now, this was consistent with both Democrat and Republican
well-stated policy communicated to Mr. Ruff, that if good-faith
consultation has not taken place, the Judiciary Committee will
treat the return of a negative blue slip by a home State
Senator as dispositive and the nominee will not be considered.
Now, I also want to note that today's hearing is not
unprecedented. There have been nominations where negative blue
slips were returned and a Senator's objection was certainly
considered, but did not stop the process or necessarily defeat
the nomination. For instance, Albert Moon was nominated in
October 1985 to be United States District Judge for the
District of Hawaii. Although both home State Senators returned
negative blue slips, a confirmation hearing was held in late
November 1985. Mr. Moon's confirmation was held over by the
Committee in December 1985 in business meetings, and the 99th
Congress adjourned before action on the nomination could be
completed.
Other examples are the nomination of John C. Shabazz,
nominated to be U.S. District Judge for the Western District of
Wisconsin, and the nomination of Judge John L. Coffey, of
Wisconsin, to be U.S. District Judge for the Seventh Circuit.
In both cases, Senator Proxmire returned blue slips prior to
the Committee hearing, noting his objection to the nomination.
In the case of Judge Shabazz, Senator Proxmire also
appeared and testified at the Committee's business meeting
regarding his opposition to the nomination. Both confirmations
were favorably reported by the Committee, and both were
confirmed by the Senate.
While Senator Biden was Chairman, the Committee considered
the nomination of Vaughn R. Walker to be U.S. District Judge
for the Northern District of California. Senator Cranston
opposed, the Democrat Senator at that time opposed this
nomination, sending letters to President Bush and Senator Biden
expressing his opposition. In November 1989, the Committee
favorably reported the nomination and the full Senate confirmed
Mr. Walker by unanimous consent.
Now, just to make the case a little more clear, I don't
feel good about Helene White and Kathleen McCree Lewis. But, of
course, I had nothing to do with the problem, and the problems
were created by the Clinton White House.
Now, I would like nothing better than to work this out in a
bipartisan way, and I have already talked to both Senators from
Michigan and expressed that to them, and I will work to do
that. This has been an embarrassing thing.
But let me just make the record clear with this chart. The
record is clear that previous Presidents were treated fairly by
the Senate. It is time to give President Bush the same courtesy
and move forward with his Michigan judges to the Sixth Circuit
and to the district courts.
And, by the way, my comments about if two negative blue
slips are returned that person is basically dead referred to
district court nominees. We are talking about circuit court
nominees. And I don't know of any cases where circuit court
nominees have not been given at least a hearing and a vote.
There may be some, but I cannot think of any off--
Senator Sessions. Mr. Chairman, could I comment on that?
Chairman Hatch. Could I just finish this?
Senator Sessions. All right.
Chairman Hatch. Then I would be glad to have you comment.
Senator Leahy. I will go first.
Chairman Hatch. I have to go to the Ranking Member first,
and then I will come to you.
The record is clear that previous Presidents were treated
fairly by the Senate, and I think President Bush deserves the
same type of courtesy that the previous Presidents had,
including President Clinton. And I think we should move forward
with these Michigan judges to the Sixth Circuit and the
district courts.
Now, on this chart, during the current Bush Presidency, the
Senate has confirmed no Michigan judges in almost 2 years. Six
nominations are pending and have been for quite a while.
During the Clinton Presidency, if you will notice there,
the Senate confirmed nine Michigan judges, and I was Chairman
for six of those years.
Although two Michigan nominees were left unconfirmed at the
end of the Clinton Presidency--Helene White and McCree Lewis--
two nominees were also left without hearings at the end of
President Bush I when he ended his term in 1992.
Now, during the first Bush Presidency, the Senate confirmed
six Michigan judges, and two nominations were returned to the
President.
So for those who like to keep score and who think that is
the way to do this, the Michigan judge tally would be as
followed: the current President Bush, zero for six. Zero. Can't
even get a vote up or down in Committee. And up to now, lots of
complaints about even holding hearings. But we have reached a
point where the leadership has said these hearings have to go
forward, and I think they are right. And we have given plenty
of consideration to the negative blue slips, and I am going to
give even more by trying to work out some bipartisan compromise
if I can. But it is going to have to be a decent compromise.
Bush II, zero for six, the current President Bush.
President Clinton got nine; two didn't make it. The prior
President Bush, Bush I, got six but two didn't make it.
So when we talk about these things, we have got to get all
the facts here, and, frankly, again, I will say that I don't
feel good about this controversy. I happen to like both
Michigan Senators. I like Spence Abraham, too, and he was not
without honor here. He was right in what he did. And everybody
knew it here. So to now try and paint that like President
Clinton was not being treated fairly is just not quite
accurate, especially under those circumstances, because I was
here and they did not even deign to talk to Senator Abraham,
which is something that has to be done, no matter who is in the
Presidency. And I believe this administration has been doing a
good job.
Now, some Democrats interpret it that unless they do what
the Democrat wants them to, he is not consulting. Well, that is
not what consultation is.
So I just wanted to make those points. I will turn to
Senator Leahy, and then I am going to finish with--
Representative Rogers. Well, I think the numbers are in
your favor, Mr. Chairman, and I appreciate your effort for
justice, not retribution.
Senator Leahy. If I might, Mr. Chairman, now that you have
recognized me--
Chairman Hatch. Sure.
Senator Leahy. And I certainly don't want to cut off
Congressman Rogers. I want him to have time, too. But for those
who think we don't always agree on things, I happen to
absolutely agree with Senator Hatch that it is important to
have all the facts, and two of them were sort of overlooked in
this.
One, we talked about Henry Saad being sent up here by
former President Bush and not given a hearing. The little thing
that was overlooked, it was 6 days before the end of the
session. A number of nominees, quite a large number of
nominees, were sent up by former President Bush just a few days
before the end of the session. It was made very clear by folks
at the Bush White House that they knew they would not get a
hearing under the so-called Thurmond rule, Strom Thurmond's
longstanding rule that within 6 months of an election you don't
hold hearings on judges unless you have both the Chairman and
Ranking Member and both party Leaders agree. And I don't know
anybody who has ever had a hearing 6 days before you are about
to adjourn.
But they were sent up for two reasons: one, former
President Bush fully expected to get re-elected; but, secondly,
it was a nice political thing to lay out a number of these
judges in different parts of the country and say now here is
the kind of people I want for my next term. Nobody, Republican
or Democrat, in my 29 years here has ever expected somebody to
be confirmed 6 days before adjournment, nor did former
President Bush. I think what he expected to do was be re-
elected, and he was just going to put all these people in early
on in the next year. That is just one fact that should be put
out.
Another one, when we talk about procedures of past
Chairmen, my Chairman is this man. He is my Chairman, and I
want to talk about his procedure, which is this: Never once,
never once, when it was a Democratic President did he violate
the blue slip rule. And those negative blue slips were all from
Republican Senators--
Chairman Hatch. Ronnie White.
Senator Leahy. Never once.
Chairman Hatch. Ronnie White.
Senator Leahy. Never once did he--you actually had
favorable blue slips on Ronnie White, and then when--
Chairman Hatch. Negatives.
Senator Leahy. No, you had two positives. He was voted out
of Committee, and then Senator Ashcroft said, wait, I have
changed my mind, I am not in favor of him. And Senator Bond--
Chairman Hatch. At the time of the vote there were two
negative blue slips.
Senator Leahy. Yes, well--
Chairman Hatch. And he got a vote. He got a vote. Our
people aren't getting votes.
Senator Leahy. He got sandbagged.
Chairman Hatch. We are being filibustered.
Senator Leahy. He got sandbagged and you know it.
I am going to go vote, speaking of votes.
Chairman Hatch. All right. Senator Sessions?
Senator Sessions. I was going to recall, Mr. Chairman, your
leadership in opposing a movement when President Clinton was
President to expand the power of the blue slip to circuit judge
nominees, and Republicans wanted to do that. You said that we
should not do that, we should maintain the position that on a
circuit nominee, a blue slip was not dispositive. And you stood
firm on that, and we had a vote on it, and your position
prevailed.
You have shown integrity and consistency in these issues.
Chairman Hatch. Can I interrupt you on that? You know, it
was not unreturned blue slips that prevented hearings for
Clinton nominees. It was the utter lack of consultation by the
Clinton White House with home State Senators that prevented
those nominees from going forward and getting votes. That is a
rule that really we have always honored around here.
Now, look, there are some nominees I wish could have gotten
through. I think I have expressed that. But I acted in good
faith to move as many judicial nominees as I could, and I think
my record is pretty darn good. It was much better than the
record when the Democrats controlled the Congress.
I don't want to go into all the statistics. We have been
through them before, but the fact of the matter is it was much
better. And I get a little tired of this partisanship that
keeps coming up with selective recollections.
Sorry to interrupt you, Senator, but to be honest with you,
this is the third nomination of Judge Saad, and he hasn't been
given the time of day until now. I think it is time to start
giving people at least the time of day. And, frankly, these
nominees deserve up-and-down votes. Maybe they will be
defeated. I don't know. But they deserve--the President
deserves up-and-down votes, and especially when they get out of
Committee and get to the floor, and especially when they are on
the floor. We have never in the history of this country had a
filibuster, a true filibuster against a judicial nominee until
this President. And, frankly, it is not only unjustified, it is
reprehensible what is going on.
I am sorry to keep you here, but I think it is important--
Representative Rogers. Absolutely, Mr. Chairman.
Chairman Hatch. --that you report back to our friends in
Michigan that this is not quite as clear-cut as our friends on
the other side are trying to make it. In fact, it isn't the way
they are trying to make it.
Senator I am sorry to interrupt you.
Senator Sessions. Well, John Smetanka was a United States
Attorney with me. He was a brilliant guy, a decent person.
Everybody liked him, moderate in demeanor and philosophy,
studied at Catholic Seminary, just in every way a fine person.
He sat over a year and never got a vote. And I remember that
one distinctly. We were all just very concerned, his fellow
United States Attorneys were, that he was denied that.
The first 9 nominees out of 11 that President Bush sent
forward never got a hearing, I do not believe. Nine of the 11
never even got a hearing when the Democrats controlled this
Committee for almost 2 years. That was an unprecedented
blocking of nominees. I have never--I don't think we have ever
seen that.
When we first started this new Congress and President Bush
was elected, the Democrats demanded, after having complained
about blue slip policies when President Clinton was President,
they demanded enhanced power to block nominees with a blue
slip. You remember that? It was very intense. They just
demanded they have even more power to block nominees, and
hopefully that didn't happen.
Another unprecedented thing happened. Two nominees for the
circuit court were voted down in Committee, Priscilla Owen and
Pickering. No Clinton nominees were ever voted down in
Committee the entire time you were Chairman, Mr. Chairman.
Chairman Hatch. That is right.
Senator Session. We had filibusters in Committee. That has
never been done before, and you finally invoked the power of
the Chair to call a vote, which you have the power to do, to
end the filibuster in Committee, and we have had filibusters on
the floor of the United States Senate for Federal judges, which
has never occurred in the history of this country.
So for the Democrats to suggest that they are somehow
carrying on in the fashion that was carried on when President
Clinton was nominating and Republicans had the majority here is
just wrong. They have changed in a whole lots of ways and using
a blue slip to block every nominee, four of them en bloc,
without stating any objection for them, is such an abuse of
that policy, I think we just simply have got to confront it,
Mr. Chairman.
Chairman Hatch. Thank you, Senator.
We have got to get over. We are late for a vote. But let me
just say this: There has been a rumor that somebody on the
Democrat side might invoke the 2-hour rule. I hope that is not
true, but that has been a rumor. But if they do--and they would
have a right to, although I think it would not be good faith in
my eyes. But if they do, then we will have to recess until the
end of the session today, and we will continue to finish this
hearing by the end of the day. So I just want to make everybody
aware that that is not going to stop this hearing from going
forward. It is just going to make it inconvenient and miserable
for everybody if that happens to occur. I hope it will not, and
I hope that is just a rumor. But I have heard it, and I just
thought I would make that clear so everybody will understand.
I want to thank you for your patience, for being here, and
for your kind remarks.
Representative Rogers. Thank you, Mr. Chairman.
Chairman Hatch. And I want to thank the other two Senators
as well. I appreciate their position. I appreciate their
feelings. And I want to try and help them and help Michigan, if
I can. But I sure as heck think we ought to get up-and-down
votes for these people.
Representative Rogers. Thank you for your passion, Mr.
Chairman.
Chairman Hatch. With that, we will recess until I can get
back.
[Recess 12:20 p.m. to 12:44 p.m.]
Chairman Hatch. I am going to wait just a few more minutes,
and then I am going to start. I hate to start without Senator
Leahy, but I have been waiting for almost 15 minutes. I know
there is not a follow-up vote. So I hope the Democrats will
send somebody in here for this hearing, but if not, we will
proceed.
I have been informed by my counsel that Senator Leahy said
to go ahead and start. So, Judge Saad, we are going to ask you
to come forward. Please raise your right hand. Do you solemnly
swear to tell the truth, the whole truth, and nothing but the
truth, so help you God?
Judge Saad. I certainly do. Thank you.
Chairman Hatch. Thank you.
STATEMENT OF HENRY W. SAAD, NOMINEE TO BE CIRCUIT JUDGE FOR THE
SIXTH CIRCUIT
Judge Saad. Shall I be seated, Mr. Chairman?
Chairman Hatch. You surely can. We are very honored to have
you before the Committee. You have an excellent reputation, as
has been explained here by the Congressman, and I am well aware
of it myself, having followed this saga now for the last 11
years. And I intend to see that you are treated fairly, and I
intend to see that their nominations are treated fairly, if we
can, when they achieve the Presidency. But the point I have
been making is I don't think President Bush has been treated
very fairly, although I think we treated their nominees as
fairly as I could under the circumstances.
Now, we are honored to have you here with members of your
family and your friends, some of your friends. Would you care
to make a statement before the Committee?
Judge Saad. The only statement I would like to make, Mr.
Chairman, is that I am absolutely pleased and honored to be
here. I have had a great respect as a student of government for
our Government in total, what our Founding Fathers did for this
Senate, and its traditions, and I respect and honor what you
are doing and what the Senate Committee is doing, and I am
prepared to answer any questions that you may have.
[The biographical information follows:]
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Chairman Hatch. Well, thank you. I appreciate that.
I was going to turn to Senator Leahy first and have him ask
whatever questions he felt inclined to do, but let me at least
start it, and hopefully he will arrive or one of the Democrats
will. Usually we have at least one who will represent the
Democrats.
Judge Saad, you have a lot of experience as a practicing
attorney, as a teacher of law, as a State appellate judge. How
has this experience prepared you to be a judge on the Sixth
Circuit Court of Appeals?
Judge Saad. Thank you, Mr. Chairman, for that question. I
think the most important quality of an appellate judge is the
ability and the willingness to listen to both sides, to give
the litigants and the attorneys who argue before the court the
respect due the positions they have.
Chairman Hatch. Thank you. I have--
Judge Saad. To keep--I'm sorry.
Chairman Hatch. Keep going. I am sorry. I thought you were
through. Go ahead.
Judge Saad. To keep an open mind, not to pre-judge matters,
to give both the--not only the fact of impartiality but the
appearance of impartiality. I've had the honor of teaching
legal ethics, what we call professional responsibility, in one
of our local law schools. And what we teach the students and
what I have tried to teach interns, externs, anybody that I
work with, is that you accord the parties a fair hearing, you
keep an open mind. You're governed by the rule of law, not your
own intuitions. And, indeed, as complicated as the law is these
days, if we just go by gut instinct and intuition, I think all
of us who are lawyers know that you would end up with some
difficulty.
The real purpose of appellate review is to make, at least
in our court, as an intermediate appellate court in Michigan,
is to be an error-correcting court, to follow the rule of law,
which means also to follow the rule of law that governs our
conduct as judges, so that if the standard of review is clearly
erroneous or de novo or abuse of discretion, those rules govern
us. So we abide by the rules, and we give people a fair
hearing, keep an open mind.
Chairman Hatch. Well, thank you.
Let me interrupt for a second and put the statement of
Senator Richard Durbin into the record at the appropriate
place.
You have been active in a number of legal, civic, and
charitable organizations. Could you please explain to the
Committee what you have done to reach out to all segments of
society and what results you feel that you have achieved in
doing this type of work?
Judge Saad. Well, I think it is important for a lawyer and
our professional rules of responsibility say that it's
important for a lawyer to give back to the community. So as a
lawyer, I was involved in, as I'm sure the record will show,
numerous charitable and legal organizations: Wayne County
Neighborhood Legal Services, which provided legal service to
the poor; New Detroit, which tried to seek some common ground
with some of the issues that Detroit faced in the mid- to late
1960's. I've worked with the National Conference of Christians
and Jews for outreach and ecumenical purposes. Teaching law
school is another way to give back to the community. I teach at
two local law schools, and I'm on an advisory board of a third.
And the list can go on, but I don't want to take all your time
going through all that. But I think it's very important in all
of these outreach activities.
I've also worked with various committees of the American
Bar Association over the years. I've worked on committees of
the Michigan Bar Association, the Detroit Bar Association. So
giving back to your profession both by working through
committees of the various bar associations and I think your
ethnic and religious communities for purposes of bringing
people together is very important. And then I think the
litigants in your courtroom have the impression that not only
are you somebody who takes the law seriously, but you take your
role as a human being in giving back to society very seriously.
Chairman Hatch. I know you very well. I know your
reputation. I know what you have done. I have a tremendous
amount of respect for you. I don't see any reason to ask you
any further questions.
I think what I am going to do, though, is ask you to stay
here because I have been informed that perhaps Senator Edwards
will be coming. I would like to give any Democrat who wants to
ask any questions some time with you.
Judge Saad. I would be pleased to do that, Mr. Chairman.
Chairman Hatch. I hate to have you just sit and wait, but I
want to be fair to my colleagues.
Judge Saad. I would be pleased to wait at your discretion.
Chairman Hatch. Well, thank you so much. Then what I will
do is I will begin with the other district court nominees, and
I will move ahead with them. But if any of the Democrats
arrive, I will have to interrupt them so that they can get back
to you, if that is all right with the district court nominees
as well.
Judge Saad. Okay.
Chairman Hatch. So, with that, we will ask you to stick
around for a while. I won't keep you all day. If nobody shows
up, they won't show up.
Judge Saad. Thank you, Mr. Chairman. I'd be happy to. Thank
you.
Chairman Hatch. Okay. Thank you.
Chairman Hatch. Then if I could have Larry Alan Burns, Glen
E. Conrad, Henry F. Floyd, Kim R. Gibson, Michael W. Mosman,
and Dana Makoto Sabraw all take your seats, I would appreciate
it. Well, if you could all raise your right hands, if you
would. Do you solemnly swear to tell the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Burns. I do.
Judge Conrad. I do.
Judge Floyd. I do.
Judge Gibson. I do.
Mr. Mosman. I do.
Judge Sabraw. I do.
Chairman Hatch. Thank you very much. Please take your
seats, and we will go from my left to your right. And we will
start with you, Judge Burns, if you have any comments you would
care to make. I think most of you have introduced your family
and your friends, but those of you who haven't might want to
take the opportunity to do that. In that regard, we welcome all
of you here. This isn't always the most pleasant Committee to
watch or to sit through. It has become one of the most partisan
committees I have ever sat on, and, frankly, it gets really old
to me. But that is the way it is, and it is a great Committee
and we have great people on this Committee, people of
tremendous ability, but a lot of deep feelings. And so I
apologize in part for the Committee and the way we act from
time to time, but there are some deep, strong feelings, and I
think people need to know that.
Judge Burns, we will start with you. You need to press this
little button in front. You will see a little red light come on
if you press it lightly.
Judge Burns. I think I did it.
Chairman Hatch. Okay. You will all need to do that.
STATEMENT OF LARRY ALAN BURNS, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Burns. I have no opening statement. I want to
reiterate what Judge Saad said. I'm pleased to be here. I thank
the Chairman and the Committee for holding a hearing and am
looking forward to answering any questions the Committee may
have.
[The biographical information follows:]
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Chairman Hatch. Well, thank you.
Judge Conrad?
STATEMENT OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF VIRGINIA
Judge Conrad. Senator, likewise, I'm very pleased to be
here. It's not very often that we in the judiciary get to see
our representative Government at work, and it's thrilling for
me to attend this hearing and to participate and to answer the
Senators' questions.
[The biographical information follows:]
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Chairman Hatch. Well, you are a glutton for punishment if
you want to see this representative Government.
[Laughter.]
Chairman Hatch. No, I appreciate that. I am just trying to
be humorous.
Judge Floyd?
STATEMENT OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF SOUTH CAROLINA
Judge Floyd. Thank you, Mr. Chairman. I have no opening
statement except to reiterate that I'm glad to be here and I
appreciate the opportunity to have this hearing and answer your
questions.
[The biographical information follows:]
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Chairman Hatch. Well, thank you so much.
Judge Gibson?
STATEMENT OF KIM R. GIBSON, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF PENNSYLVANIA
Judge Gibson. Thank you, Mr. Chairman. I don't have any
opening statement either. I want to express my appreciation to
the Committee for having me here and what a great honor it is
to appear before this body, and especially nice is the fact
that a lot of my family could be here with me, and I'm sure
it's something they'll always remember.
[The biographical information follows:]
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Chairman Hatch. Well, thank you so much.
Mr. Mosman?
STATEMENT OF MICHAEL W. MOSMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF OREGON
Mr. Mosman. Thank you, Mr. Chairman. I also have no opening
statement. I'm honored to be here and prepared to answer this
Committee's questions.
[The biographical information follows:]
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Chairman Hatch. Well, thank you so much.
Judge Sabraw?
STATEMENT OF DANA MAKOTO SABRAW, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Sabraw. Thank you, Mr. Chairman. Like my colleagues,
I do not have an opening statement, but I am honored and
delighted to be here and happy to answer any questions.
[The biographical information follows:]
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Chairman Hatch. Well, let me tell you how honored we are to
have all of you here. It is a terrific thing for us, and,
frankly, I feel very, very good about all of your willingness
to serve. It seems to me that we are blessed to have people of
your quality willing to give up what really is a lucrative
profession to serve at the level that you are willing to serve.
It is not easy in this day and age, and we are finding that
there are some people who will not accept these positions
because of the low pay in comparison to what they make as
lawyers. But there are many, many others who really want to
give service to our country, and I don't know of any entity
that is more important than the third separated branch of
Government, the Federal court system. So it is very, very
important what you are doing, and we are very grateful to have
all of you here.
Let me start with you, Judge Burns. Before becoming a
magistrate judge, you spent your career as a prosecuting
attorney, primarily handling criminal cases. As a judge, the
majority of the cases you have handled are civil in nature. How
did you prepare yourself to make this transition from being a
prosecutor, from litigating primarily criminal cases, to
deciding primarily civil cases given your background?
Judge Burns. Thank you, Senator, for giving me the
opportunity to explain that.
I had some experience in the business community. I served
on a board of directors for a local bank in San Diego. I was
the only lawyer on the bank for about 3-1/2 years and, as such,
I managed our civil litigation. I didn't personally handle the
cases, but I hired our outside counsel, and I monitored all of
our legal activity.
Aside from that, I found that the number of cases I tried
as a prosecutor prepared me quite well to understand issues, to
get to the important issues in a case, and to focus parties'
attention on issues. And I found that the dichotomy between
civil and criminal law in that regard wasn't as great as it
seemed.
Chairman Hatch. Okay. Thank you.
As a former prosecutor, what assurances can you give to
criminal defendants who appear before you that they will
receive fair treatment in your courtroom?
Judge Burns. Well, I can give them the assurance of a track
record. I have been endorsed, as the Chair probably knows, by
the criminal defense organizations in San Diego. There was that
concern, of course, anytime a prosecutor takes the bench, but I
think my record over the last 6 years has been one of being a
balanced person who listens carefully to both sides and hits
the ball right down the middle.
Chairman Hatch. That is my belief.
Mr. Conrad, Judge Conrad, you have spent practically your
entire career as a United States magistrate judge. You are now
being nominated for a lifetime position as a Federal judge in
the District Court for the Western District of Virginia. In
what ways has this prepared you? And I am also impressed by
your desire that you have shown, which to me is a passionate
interest, in educating future lawyers about Federal court civil
procedure and practice and legal practice in the Western
District of Virginia. Could you please talk a little bit about
your longstanding involvement in continuing legal education as
well?
Judge Conrad. Thank you, Senator, for the opportunity to
address those subjects.
Yes, I have been a United States magistrate judge for many
years, and public service was the field which I always wanted
to enter. As for the question concerning preparation to serve
as United States district judge, as you know, Senator, the
function of the magistrate judge and United States district
judge overlap to a very great extent, and I think it's a very
good training field, a very good basis for preparation to serve
in that higher office.
We are committed in the Western District of Virginia to
educating the younger lawyers about the Federal court,
encouraging both litigants and attorneys to use the forum
provided by the Federal court, not to be afraid of the rules
and not to be afraid of the procedures, but to embrace those
and use them to their clients' benefit. And I believe that
we've been successful in making the Western District of
Virginia a comfortable place and a user-friendly place to
practice law.
Chairman Hatch. Great.
Judge Floyd, tell the Committee about your work on the
Board of Commissioners on Grievances and Discipline, which, as
I understand it, is empowered to deal with complaints against
members of the bar and, of course, has a concomitant duty to
make recommendations for disciplinary conduct and how this
experience may have helped you to become a judge?
Judge Floyd. Thank you, Mr. Chairman. I've had the
opportunity to serve both on the Lawyers' Grievance Committee
as well as the Commission on Judicial Conduct where we
investigate and conduct hearings and make recommendations for
disciplinary actions against attorneys as well as judges. That
early on prepared me to become a circuit judge, because that is
pretty much what I would do after I was sworn in as a circuit
judge. It's a process of being open-minded and doing a thorough
investigation and trying to be fair to all sides and reach a
proper result.
Chairman Hatch. Thank you.
Judge Gibson, you have had a long and successful career in
the United States Army, particularly as a Judge Advocate
General. How has that prepared you for this current calling
that you now receive from the President?
Judge Gibson. Well, thank you for that question, Mr.
Chairman. As well as many other life experiences that I've
had--
Chairman Hatch. One other aspect of that, too, though, just
one other question so you can answer both at the same time.
During your tenure on the bench, you have been instrumental in
initiating the victim impact panels and the juvenile drug
court, which is only the second court of its kind in
Pennsylvania on which you serve as a judge. So I would like you
to also include that in your explanation as to how that may
have helped you and your reasons for starting those
initiatives.
Judge Gibson. Well, thank you very much, Mr. Chairman. With
regard to your first inquiry about my experience in the Army, I
think it helped me develop a sense of fairness and an ability
to work with people and the ability also to make decisions when
they need to be made and weigh all the factors and treat people
with respect when you are doing that. And I try to do that with
all the litigants and the counsel and witnesses who come into
my courtroom.
With regard to the juvenile drug court program that we
initiated, you're correct that it was the second such court in
Pennsylvania, and it has given me one of my most memorable
experiences in the judiciary because we've been able to get
kids to go back to school, complete grades, whereas, before,
they had been failing. We've been able to keep them drug-free
with the work of the whole Committee that we work with, working
with their parents. And we do that by bringing them into court
frequently and supervising and encouraging.
As far as the victim impact panel, Mr. Chairman, before I
took the bench, I went and sat and listened to a victim impact
panel where the mother of someone who had been killed in a
drunk-driving incident testified and stated what had happened
to her. And I was so moved by it that I thought that anyone who
came before the court for a drunk-driving type offense would
benefit from hearing the terrible consequences that can occur
from that. So we did initiate that, and we now require that as
part of the probation and the diversionary programs that we do
have.
So I think both those programs have worked well.
Chairman Hatch. Well, thank you.
Mr. Mosman, you have spent quite a bit of time in your
professional career in the U.S. Attorney's Office for the
District of Oregon. I would like you to expand on how your
experience there has prepared you to be a Federal judge, and
let me just add another question so you can answer both at the
same time.
Having appeared before judges on many occasions during the
course of your distinguished legal career--and you have a
distinguished academic background as well, as do all of you--I
am sure you have had ample opportunity to reflect on the
quality of judge that you would like to become. And I would not
mind hearing you describe briefly for the Committee what you
think the proper role of a judge in our constitutional system
is and what qualities you believe are necessary for a judge to
fulfill a Federal judgeship role.
Mr. Mosman. Thank you, Mr. Chairman. I think the principal
thing about my career in the U.S. Attorney's Office that has
helped me prepare for this nomination is my experience with
many different criminal trials. I've had the opportunity
perhaps in this kind of career to try more cases than I might
otherwise have done. And so seeing those trials, participating
in them, watching how that unfolds in Federal court has been
very beneficial to me.
I think also it's given me an opportunity to watch Federal
judges in action and, as you have said, to ponder what it means
to be a Federal judge, what those qualities are that make for a
good Federal judge. I think I would go back to the time I had
with Justice Lewis Powell, where I first really saw in action
the kind of civility and decency and respect that he manifested
constantly to litigants that really for me are the primary
hallmarks of a great judge.
Chairman Hatch. The reason I ask these questions in a very
real sense is, having practiced in federal courts myself, and
having had at least two major curmudgeon judges, trial judges,
during my tenure, both very brilliant people--Wallace Gorley in
the Western District of Pennsylvania and none other than the
heralded and fabled Judge Ritter in Utah--we sometimes get the
attitude around here that once you get to these lifetime
appointments, the whole demeanor changes and it goes to some of
the judges' heads where they think they--you know, they will
acknowledge that they are the closest thing to godhood in this
life, but some of them think they have actually achieved
godhood. So we have to continually talk in those terms, that
the service you give is service that should be fair to
everybody--litigants, attorneys, people in the courtroom,
witnesses, et cetera. And some judges go way beyond where they
should go, in my opinion. And I just want to kind of hope you
will always remember this discussion here in this hearing room
today.
Judge Sabraw, you have been recognized for your pro bono
efforts by various Committee organizations in San Diego and
surrounding areas. Now, would you agree that the most effective
means for a judge to implement change in the Committee is not
simply from behind the bench but, instead, must include direct
interaction with the members of the community over whom he
presides? And as an attorney, your litigation experience
focused predominantly on civil matters, yet since your
appointment to the bench, you have handled a varied docket. As
a matter of fact, in 2000, you were named the Criminal
Presiding Judge of the North County Division of the San Diego
Superior Court.
How do you think your litigation and judicial experience
will best aid you in the challenges that await your
confirmation on the bench for the Southern District of
California?
Judge Sabraw. Yes, thank you, Mr. Chairman. I think the
opportunity I've had on the State bench is a wonderful platform
for the Federal bench. I served on the State court for 8 years.
Equally divided in those years, I've handled both civil and
criminal cases. Prior to becoming the criminal supervising
judge for the North County, I handled felonies exclusively,
serious felony crimes of all sorts, and then 1 year as criminal
supervising judge assigning out cases and handling all of the
plea dispositions.
Thereafter, and to date, I've served exclusively in a civil
direct calendar department covering general jurisdiction,
multi-party litigation cases. So I'm hopeful that that
experience will feed directly into a smooth transition onto the
Federal bench.
Chairman Hatch. Well, thank you so much. I really
appreciate it.
I have looked over your careers and your resumes and your
work that you have done, both outside the bench and on the
bench. And I am really impressed with all of you, and I think
everybody on this Committee should be impressed with all of
you. And I hope that we can get you through. It is apparent we
cannot get you through before the August recess. I would have
to put you on tomorrow's markup, and I think that would be
difficult to do under the current circumstances. But I will do
everything in my power to put you on the markup when we get
back and get you through as soon as possible, because every one
of you will be filling seats that are drastically needed. And I
have seen a lot of panels in my day and an awful lot of good
people who are serving in the Federal judicial system, but I
don't know that I have ever seen a better panel than this one.
So I just want to compliment each and every one of you for
being willing to participate, being willing to interrupt your
careers, being willing to go on these lifetime, very lonely
positions, because once you go on the bench it is pretty tough
to really do a lot of things that you have been used to doing
without serious criticism. So you do kind of go into a
cloister, to a degree--not nearly as bad as the Supreme Court.
I will never forget I went over there not too long ago, and one
of the Justices came running up to me and said, ``Oh, a real
human being.''
[Laughter.]
Chairman Hatch. He said, ``We never see any real human
beings over here.'' I think he was excluding his clerks and
secretaries, but the point is that it is a cloister and it is a
difficult place.
Now, Senator Edwards is here. I am through with my
questions. I am through with my questions of this district
panel, but we can come back to Judge Saad anytime you want to
if you care to ask any questions of these folks.
Senator Edwards. I don't, Mr. Chairman. Could I just make--
in fact, I don't need more than 60 seconds. I just wanted to
make a quick point, and if you want to conclude with--
Chairman Hatch. Well, why don't I release them, then, and
tell you that we will do our best to get your through right
after we get back from the recess. We will do everything in our
power to do this for you, and I believe we will get you
through.
So, with that, we are going to release you and allow you to
go. I just feel fortunate we were able to get this done, so
thanks so much for being here. We appreciate your service. We
appreciate your willingness to serve our country. Thanks so
much.
Judge Burns. Thank you, Mr. Chairman.
Judge Conrad. Thank you, Mr. Chairman.
Judge Floyd. Thank you, Mr. Chairman.
Judge Gibson. Thank you, Mr. Chairman.
Mr. Mosman. Thank you, Mr. Chairman.
Judge Sabraw. Thank you, Mr. Chairman.
Chairman Hatch. All right. Let's have Judge Saad come back
up to the witness table. Senator Edwards would like to make a
statement, and then we will go from there.
Senator Edwards. Thank you very much, Mr. Chairman.
Mr. Chairman, as you know, you and I and the White House
worked very closely together to reach a consensus on Judge
Allyson Duncan and her nomination to the Fourth Circuit Court
of Appeals, which moved through the Committee quickly and moved
through the United States Senate with strong support. I think
it is an example of what can be constructively accomplished
when we go about this process the right way, in a constructive
way, and reach consensus about these nominees.
My concern about Judge Saad is going forward with the
nomination of a judge over the objection of both home State
Senators. I think it is important not just for those Senators
but for the process, for us to go about this in exactly the way
we did with Judge Duncan, which I think is the process that
works and the process that we should adopt as a model. And I
just wanted to come for the purpose of--I don't have questions
for the judge. I wanted to come for the purpose of expressing
that, with all respect to the Chairman, who has worked with me
on any number of issues. But on this particular issue, I think
it is of great concern to me to go forward with Judge Saad over
the objection of both of his home State Senators, particularly
when we have a model like Allyson Duncan, which I think
represents what we should be doing.
And I would just ask the Chairman if I could put my full
statement in the record.
Chairman Hatch. Without objection, we will do that.
[The prepared statement of Senator Edwards appears as a
submission for the record.]
Chairman Hatch. I agree with you, it is wonderful when we
can have cooperation and everybody is working closely together.
I think we have made a case that Judge Saad, in his third
nomination and waiting 11 years, deserves to be considered and
have a vote up and down. But there is a difference in feeling
on this, and I acknowledge my colleagues and respect my
colleagues in that regard.
By the way, for the district court nominees, we are going
to keep the record open, as we will with you, Judge Saad, if
nobody else comes, we will keep the record open for written
questions, and any Senator on this Committee can ask any
questions they want, and we will keep the record open until
next Monday. And hopefully the Senators will put their
questions in writing, and that will give all of you a month to
answer the questions, which is usually enough time.
So, thank you, Senator.
Senator Edwards. Thank you, Senator.
Chairman Hatch. I think what we will do is just wait for a
few more minutes and see if there are any other Democrats who
would care to ask any questions.
Sorry to do this to you, but I want to give my colleagues
every chance to come and ask any questions they care to.
Judge Saad. I understand the professional courtesy, Mr.
Chairman. Thank you.
Chairman Hatch. We will release the district court judges.
I don't think there is anybody who is going to come and ask any
questions. So if you would care to go, you have got our
approval. But please answer your written questions as soon as
you can.
[Pause.]
Chairman Hatch. I have been informed that there are no
other Democrats who are planning on coming, but let the record
show that we have been here for 3 hours, most all of which has
been spent on Judge Saad. I am willing to spend all day, if
necessary, to allow any Democrat the opportunity to question.
This is the time to do so. But in the event none are going to
come--and I have been informed they will not--we will keep the
record open for them to file written questions.
I don't see any reason for a further hearing. You have
presented yourself. You have been here long enough, and
everybody has really had an opportunity, and an ample
opportunity, to come and ask you any questions they would care
to ask. And I am hopeful that we can--I hope I can find some
Solomonic way of resolving this impasse because the four
circuit court of appeals judgeship nominees by this
administration all appear to be excellent to me, and I think to
the people of Michigan. And for the people of Michigan, this is
not fair to have this impasse because the people of Michigan
are not getting the judicial representation that they deserve,
and ultimately if this continues on, I think it is going to be
much to the detriment of the State. And I think we have made a
pretty ample case that because of the lack of consultation,
that is why the two judges did not get through, although nine
did. And I was one of those who saw that they got through. And
I would have seen that the other two got through had it not
been for that type of inappropriate impasse.
The administration, whichever it is, has an obligation to
consult. I admit some of our Democrat friends think that
consultation means approving whoever they want to approve, not
the administration. Unfortunately, the Constitution doesn't
back them up. The Constitution says the President has the power
of nomination.
Now, we do have the power of advise and consent, but that
means a vote up and down. It means holding hearings and asking
good questions, and maybe sending interrogatories or written
questions. But it ultimately means a vote up and down. That is
what the advise and consent process should be, especially where
there has been consultation. And in your case, Judge Saad,
there has been ample consultation, more than ample. In the case
of Kuhl, overwhelming consultation with both California
Senators, but especially Senator Boxer, who was the first one
to withhold her blue slip or to send in a negative blue slip.
And I think in every instance this administration has made an
effort to consult with Senators up here of both parties. And in
your case, they certainly have done so, and it isn't fair for
good nominees like you and the others to be held up under these
circumstances, and to be held up crying foul over Helene White
and Kathleen McCree Lewis, both of whom are nice people. And I
know of both of them. I knew Ms. Lewis' father, Wade McCree,
and thought the world of him and would like to have helped her.
But under the circumstances, I have to--there is only so much I
can do, also.
With regard to never having brought up a judge with two
negative blue slips, it is basically true with regard to
district court nominees. But I can remember when Ronnie White
was brought up and both negative blue slips were there. I could
have refused to go to a vote, but we went to a vote, and he at
least got a vote up and down, which is something that is not
being accorded the Bush nominees. And I might add--the Bush II
nominees, we will put it that way, and many of the 54 holdovers
that were left at the end of the Bush I administration,
including you, Mr. Saad--Judge Saad, I should say.
So I don't think there is a very good argument against
voting up and down on your and the other three nominees,
including the two district court nominees. There is a
difference between withholding blue slips on district court
nominees, I agree, when both Senators were against a district
court nominee because those nominees are right in the State.
They don't represent a multiple-State situation. So there is a
difference between withholding blue slips on district court
nominees than there is in withholding blue slips on circuit
court of appeals nominees.
Now, I would just point out with regard to Ronnie White,
there were two negative blue slips by Republican Senators. I
was the Chairman. And I could have taken the position that we
shouldn't go to a vote. But we did. And he had a vote up and
down. Now, admittedly, the second negative blue slip occurred
shortly before that vote, but, nevertheless, it was negative.
But the Republicans did vote up and down. He was the only one
that I recall voted down by the Republicans in the Senate in
the Clinton years. Everybody else who was brought up had a vote
up and down and passed. And most of them passed by unanimous
consent.
But, to make a long story short, you deserve better
treatment than this. We are going to do everything in our power
to see that you get that vote up and down, and I believe that
if it is the vote up and down, you will win because I think
people of fairness will appreciate the fact that you have a
tremendous reputation in the law. And I want to make sure that
you are treated fairly.
Now, with regard to Ronnie White, just to correct the
record, there was one positive blue slip, one negative blue
slip. The negative blue slip was by a member of this Committee,
and I asked the member, I said, ``Do you have any objection to
me bringing Judge White up?'' And the member said, ``No, but
just make sure that I'm listed as a no vote,'' which I did.
But by the time he came to the floor, there were two
negative blue slips in the sense that both Senators had decided
to oppose Ronnie White. So I treated that as a negative blue
slip.
To their credit, we went ahead with a vote. They could have
stopped the vote, but we went ahead with the vote. And it was
to my credit, too, because I wanted to go ahead. I think he
deserved a vote. And I believe you do, and I believe the ones
that are being filibustered do, the ones that are being
filibustered for the first time in history. I think we have got
to break through this type of maltreatment of Bush nominees and
consider treating them in a fair and balanced manner and give
them votes up and down, especially when they come to the floor.
So, with that, we will recess this Committee. As far as I
am concerned, you have had your hearing. But the record will be
open for any questions that they want to ask in writing, and we
would appreciate it if you would get the answers back as soon
as you can.
Judge Saad. I most certainly will, and I thank you for the
hearing, Mr. Chairman.
Chairman Hatch. Well, thanks, Judge. It is great to have
you here, and I admire you and I admire what you have been able
to do.
With that, we will recess until further notice.
[Whereupon, at 1:24 p.m., the Committee was adjourned.]
Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF CARLOS T. BEA, OF CALIFORNIA, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT; MARCIA A. CRONE, OF TEXAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS; PHILLIP S. FIGA, OF
COLORADO, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO;
WILLIAM Q. HAYES, OF CALIFORNIA, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF CALIFORNIA; JOHN A. HOUSTON, OF CALIFORNIA,
NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA;
ROBERT CLIVE JONES, OF NEVADA, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF NEVADA; AND RONALD A. WHITE, OF OKLAHOMA, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF OKLAHOMA
----------
WEDNESDAY, SEPTEMBER 3, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch and Cornyn.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Today, the Committee has the privilege of
considering the nominations of seven outstanding lawyers to be
federal judges. I want to commend President Bush for nominating
each of them, and I look forward to hearing each of your
testimonies.
Since there are so many Senators here this morning waiting
to speak on behalf of the nominees, I will keep my opening
remarks quite brief.
The first nominee from whom we will hear is Judge Carlos
Bea, our nominee for the Ninth Circuit Court of Appeals. He has
had an exemplary legal career in California as a successful
attorney and as an impartial jurist. During his 32-year career
in private practice, Judge Bea appeared in court on a regular
basis and was the lead counsel in approximately 125 jury
trials.
In 1990, Judge Bea was appointed and subsequently elected
to his current position as a judge on the San Francisco
Superior Court. He was re-elected, without opposition, to the
superior court in 1996 and again in 2002. In this capacity, he
has literally handled thousands of cases and presided over
hundreds of trials. President George H.W. Bush nominated Judge
Bea for a federal district judgeship in 1991; however, no
hearing was held on his nomination during the 102nd Congress.
His long wait for a fair and well-deserved hearing before the
Senate Judiciary Committee ends today.
As with other nominees to the Ninth Circuit that this
Committee has considered this year, Judge Bea's colleagues
overwhelmingly support his confirmation to the Federal
appellate bench. Thirty-seven judges of the San Francisco
Superior Court, who serve with Judge Bea and work with him
every day, sent a letter to the Committee praising his skills
as a jurist. They wrote, ``Judge Bea has distinguished himself
in presiding over ground-breaking complex litigation in the
insurance coverage and environmental areas, as well as handling
many asbestos trials.'' The letter also recognizes his service
on many of the superior court's management committees and the
fact that before becoming one of their colleagues, ``Judge Bea
was considered by the legal community to be one of the finest
civil trial lawyers in San Francisco.'' So I will submit a copy
of this letter for the record.
In addition to his Superior Court colleagues, California
Supreme Court Justice Carlos Moreno, San Francisco Mayor Willie
Brown, and representatives of the San Francisco Bay Area's
Hispanic community have all written to this Committee
expressing enthusiastic support for the judge and for his
confirmation to the Ninth Circuit. I hope my colleagues will
join me in supporting him as well, and I look forward to
hearing his testimony this morning.
In addition to Judge Bea, the Committee will hear testimony
from six well-qualified district court nominees. In the
interest of time, I will reserve my remarks on the district
court nominees until after we have heard from Judge Bea.
We will turn to the Ranking Member upon arrival.
We have a number of Senators who care to testify on behalf
of various nominees this morning, and we will start with Hon.
Don Nickles from Oklahoma.
PRESENTATION OF RONALD A. WHITE, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF OKLAHOMA, BY HON. DON NICKLES, A
U.S. SENATOR FROM OKLAHOMA
Senator Nickles. Mr. Chairman, thank you very much, and I
want to thank you for scheduling this hearing on several
outstanding nominees to the Federal bench, one of whom is from
my home State of Oklahoma, a friend of mine, Ron White. His
wife, Lisa, is with him as well. He is well qualified to be a
Federal district judge. Senator Inhofe and I both interviewed
several people and came to the conclusion that Ron White would
be an outstanding addition to the Federal court.
He has been an attorney with the very prestigious Tulsa
firm of Hall Estill for 17 years. He has been a partner since
1992. His practice has covered a variety of areas. As an
attorney, 60 percent of his court appearances were in Federal
court. He is admitted to practice before the Oklahoma Supreme
Court, the U.S. Court of Appeals for the Tenth Circuit, and the
U.S. District Court in the Northern, Eastern, and Western
Districts of Oklahoma.
He received his law degree from the University of Oklahoma
in 1986. He has been involved in numerous organizations and
charities in the State. He has received the ABA rating
unanimously qualified. I am very happy to strongly support his
nomination and urge the Senate to move quickly with his
confirmation.
I thank you, Mr. Chairman, for allowing me to speak, and I
have a Budget Committee hearing so I need to run. So thank you,
Mr. Chairman.
Chairman Hatch. We understand. Thank you so much, Senator
Nickles. We appreciate you taking the time to be here.
If I can, I will just go across the table, so we will go to
you, Senator Ensign. We were going to have Senator Reid. When
he arrives, we will talk to him.
PRESENTATION OF ROBERT CLIVE JONES, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA, BY HON. JOHN ENSIGN, A U.S.
SENATOR FROM THE STATE OF NEVADA
Senator Ensign. Thank you, Mr. Chairman. It is an honor for
me to be here today before the Senate Judiciary Committee to
introduce a great bankruptcy judge from my State of Nevada, Mr.
Robert Clive Jones. Since taking the bench, Judge Jones has
heard thousands of bankruptcy cases. He has overseen many of
Nevada's most complex and controversial bankruptcy cases since
taking the bench and has done so with great care, fairness, and
prudence.
He is respected and admired throughout the legal community
for his belief and his dedication to the rule of law. Judge
Jones has served on the Federal bankruptcy bench in my home
State of Nevada for the past two decades.
Additionally, in 1986, Judge Jones was appointed to the
Bankruptcy Appellate Panel, U.S. Court of Appeals of the Ninth
Circuit, and has served with distinction as a member of this
panel for consecutive 7-year terms. This is the only active
Bankruptcy Appellate Panel in the United States, and it has
settled substantial questions of bankruptcy law and
interpretation of the bankruptcy statute.
Judge Jones also served on the U.S. Conference Committee on
Codes and Conduct from 1989 to 1995. This Committee is
responsible for drafting, adoption, and interpretation of codes
of conduct for U.S. judges and judicial employees.
A long-time resident of Nevada, Judge Jones began his
education not in my State of Nevada but in the Chairman's home
State of Utah at Brigham Young University. He later earned his
law degree at the University of California, graduating in the
Order of the Coif, indicating a place in the top 10 percent of
his graduating class.
Upon graduation, Judge Jones served as a clerk for Judge J.
Clifford Wallace on the U.S. Ninth Circuit Court of Appeals and
then began a career in Nevada in the private sector until his
appointment to the bankruptcy court in 1983.
Judge Jones' extensive legal background and his commitment
to public service make him an excellent choice as U.S. District
Court Judge for the District of Nevada.
Mr. Chairman, I know his wife, Anita Michele, is proud of
him for being here today, and the State of Nevada is proud of
Robert and all that he represents for our great State. And I
appreciate you expeditiously considering his nomination, and I
join with Senator Reid in a bipartisan way to forward his
nomination today.
Chairman Hatch. Well, thank you so much, Senator Ensign. We
appreciate you being here, and we will allow you to go. We know
how busy all of you are.
We will turn to Senator Boxer at this point, and we look
forward to hearing your testimony, Senator.
PRESENTATION OF CARLOS T. BEA, NOMINEE TO BE CIRCUIT JUDGE FOR
THE NINTH CIRCUIT, WILLIAM Q. HAYES, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA, AND JOHN A.
HOUSTON, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT
OF CALIFORNIA, BY HON. BARBARA BOXER, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. Chairman Hatch, thank you very much. I am
very pleased today to introduce to you Judge Carlos Bea, the
nominee for the Ninth Circuit Court of Appeals. And I wonder if
it would be all right with you if we could ask his family to
stand, and perhaps he could just give you the names of this
beautiful family he has brought with him.
Chairman Hatch. Of course it would be. That is quite a
family. I really enjoyed meeting them.
Senator Boxer. Judge, do you want to introduce them?
Judge Bea. Yes, Senator Boxer, Chairman Hatch. My wife and
the mother of these four strapping lads: Dominic, Nicholas,
Alex, and Sebastian. And my father-in-law, Albert Reed Rubey;
and over here, Reed Rubey, Jr., and his two children, Dina and
Henry. And we are also honored to have from San Francisco
Richard Wall, my law school classmate, and from New York, Lou
Guzzo of the New York Fire Department, a veteran of 9/11.
Chairman Hatch. Well, you know how to influence this
Committee, is all I can say.
[Laughter.]
Chairman Hatch. We are delighted to have all of you here.
It is wonderful to have you here, and we look forward to
getting this hearing over and getting Judge Bea confirmed.
Senator Boxer. Thank you so much. I will be brief and ask
unanimous consent that my entire statement be placed in the
record.
Chairman Hatch. Without objection, we will put all entire
statements in the record.
Senator Boxer. Mr. Chairman, I am also very proud to
introduce two nominees for the Southern District Court of
California: William Hayes and John Houston. And if it is okay
with you, I know they would be proud to show you their families
as well. So let's start with Mr. Hayes, and we will go to John.
Mr. Hayes. I would like to introduce my wife, Julia
Jauregui; my father, Robert Hayes; and my mother, Margaret
Hayes.
Chairman Hatch. We are delighted to have all of you here.
Senator Boxer. Mr. Houston?
Judge Houston. Good morning, Senator.
Chairman Hatch. Good morning.
Judge Houston. It is my pleasure to introduce my wife,
Charlotte Houston; my son, John Allen; my mother and father,
John and Charlotte Houston; my sister, Vera; my sister, Rita;
my sister, Sharon; my niece, Michelle; my niece, Alex; my
brother-in-law, Dr. Rev. Tommie London; my sister-in-law,
Shandra Houston; and my brother, Gregory Houston.
Chairman Hatch. Well, we are delighted to have all of you
here. We appreciate you coming and supporting the nominee.
Senator Boxer. Mr. Chairman, I know you can tell the
excitement in the room because these nominees have worked so
hard and so long, and these are good nominees.
Let me just begin by discussing for a moment Judge Bea. He
was born in Spain and has lived in California for most of his
life. He received both his undergraduate and law degrees from
Stanford, and he has an impressive legal career. And you have
cited some of the things, so I won't cite all of them, but just
to say that he practiced law in San Francisco for 30 years
before he was appointed a judge on the San Francisco Superior
Court. And he was elected to the seat in 1990, has been re-
elected twice by the voters of San Francisco. He has taught at
Stanford and Hastings Law School.
I will just skip over a lot of his qualifications and just
read you a couple of comments.
One reporter wrote of him, ``He has received high marks for
his specialty, handling complex civil litigation disputes.''
Another reporter, who spoke with numerous lawyers, wrote
that, ``He is at his best handling monstrous size cases that
pose difficult legal questions presented by sophisticated
lawyers.''
So this just gives you a sense of this man because this is
obviously a difficult time in our society, and we are going to
have complex issues, and they are going to be gray areas. So I
think that this is an excellent choice.
Judge Bea has been endorsed by the San Francisco La Raza
Lawyers Association, the Mexican American Legal Defense Fund,
and I am very happy that they have lent their support.
Turning to the district court nominees, I want to comment
on the process that brought these two wonderful people to you
today. In a truly bipartisan fashion, Mr. Chairman, the White
House Counsel, Senator Feinstein, and I have worked together to
create a judicial advisory Committee for our State, one in each
Federal judicial district in the State. And I have to tell you,
it is balanced. Each Committee has a membership of six: three
appointed by the White House, three appointed jointly by
Senator Feinstein and myself.
Each member's vote counts equally, and a majority is
necessary for the recommendation. So both Judge Houston and Mr.
Hayes were reviewed by the Southern District Committee and
strongly recommended for these positions. Judge Houston had
extensive experience as a Federal prosecutor before his
appointment as a magistrate judge. Mr. Hayes has extensive
civil experience as a private attorney before becoming a
Federal prosecutor, rising to the position of head of the
Criminal Division in the U.S. Attorney's Office.
So, again, I am just so pleased to be here today, and I am
delighted with these three nominees, and I do hope that we will
see them move forward quickly.
Thank you very much.
[The prepared statement of Senator Boxer appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator Boxer. Thanks for taking
the time.
Mr. Karim-Panahi. Mr. Chairman, my name is Parviz Karim-
Panahi from Southern California. This Senator and Senator
Feinstein, and previous Senators, they have created the most
corrupt judiciary, Federal judiciary in Southern California--
Chairman Hatch. We are going to have to ask--we are going
to have to ask for order. We are going to have to ask for
order. The Committee will be--
Mr. Karim-Panahi. I wanted to put this matter before you--
Chairman Hatch. We understand but--
Mr. Karim-Panahi. --and before this Judiciary Committee to
know what is happening. I have nothing to do against these
nominees, but what has been happening in the past 20 years or
30 years, I am talking about not--
Chairman Hatch. All right, sir. I have got to ask you to
refrain because we are going to continue this hearing, and we
appreciate your strong feeling--we appreciate your strong
feelings, but we are not going to allow disruptions in the
Committee.
We are going to turn to our Minority Whip next and
accommodate Senator Reid, and then we will finish with the two
of you, and then we will come back to Senator Hutchison.
PRESENTATION ROBERT CLIVE JONES, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S. SENATOR
FROM THE STATE OF NEVADA
Senator Reid. Mr. Chairman, I appreciate it very much. I
left Senator Specter on the floor, and he asked if I could get
back as quickly as I can.
Chairman Hatch. We understand.
Senator Reid. So I very much appreciate this.
Mr. Chairman, Clive Jones has a great pedigree. He is a
fine man. He graduated from an outstanding law school, UCLA. He
has worked in the private sector where he was a partner in a
law firm for a number of years, prior to being chosen to be a
United States bankruptcy judge in the District of Nevada. He
has worked in this capacity now for more than two decades. He
has served as a chief judge for about 10 years. He was
appointed to the only active Bankruptcy Appellate Panel in the
country for more than a dozen years.
Mr. Chairman, I notice that our esteemed nominee is joined
today by his family. I have to remark that my admiration for
this nominee is matched by my admiration for his wife. She
comes from a wonderful family. Her father, a man by the name of
Wayne Bunker, has had an outstanding career in accounting in
the State of Nevada and in public service generally. I had the
good fortune of being able to attend a meeting with him this
past Sunday. Of course, recognizing the modest and really the
humble man that he is, he would never, ever talk to me about
the fact that his son-in-law was about to get this most
important job. And I knew that his pride was significant in the
fact that his son-in-law may be able to be a judge and of the
caliber that he feels he deserves, that is, a Federal district
judge.
So I have the greatest respect for Clive, and also for his
wife, Michele, who is an outstanding musician. They have four
wonderful children. Their youngest boy is in law and
accounting. He is a grandfather. He has worked in the scouting
program. Both Clive and Michele can sing. They have been part
of a very important choral group in Las Vegas called the Bluth
Chorale, which is well known in Nevada and parts of the Western
United States.
So, Mr. Chairman, it is with pleasure that I recommend to
this Committee Clive Jones to be a Federal district judge.
Chairman Hatch. Well, thank you so much, Senator. We
appreciate your testimony. We know you are busy, and we
appreciate you taking the time from your busy schedule.
Senator Campbell, we will go to you.
PRESENTATION OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO, BY HON. BEN NIGHTHORSE CAMPBELL,
A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Campbell. Thank you, Mr. Chairman. Senator Allard,
my colleague, and I have appeared before you a number of times
to recommend nominees for different positions. I have to say
that I am very pleased to be here to support one. But you know
as well as I do, Mr. Chairman, that the process by which a
person gets nominated to the bench is not easy, and to get here
in front of your Committee, they have to have pretty widespread
support. And without that broad support, they simply couldn't
be this far. Clearly, in democracy there is opportunity for
anyone, any American, to dissent. But these nominations are not
by accident, and I happen to think that all seven of these
judicial nominees, including the appeals court nominee for the
Ninth Circuit, are good nominees.
It is my pleasure to be here with my friend and colleague,
Senator Allard, to introduce Phillip Figa, a good Coloradan, a
well-qualified jurist, and I hope you will agree he is well
suited to serve as a Federal judge. I would like to abbreviate
my statement and have included in the record with your
permission a full statement and an editorial by the Denver Post
in support of Mr. Figa.
Chairman Hatch. Without objection.
Senator Campbell. And as the other nominees have done, I
wonder if I could ask Mr. Figa to introduce his wife, Candace,
and his son, Ben, and daughter, Elizabeth.
Mr. Figa. Mr. Chairman, this is my wife, Candy; my son,
Ben; and my daughter, Lizzie.
Chairman Hatch. We are delighted to have all of you here
and look forward to--
Senator Campbell. I notice the other nominees also have
their families here, Mr. Chairman, and I think that if you are
going to serve in public office anywhere, whether it is an
elected position or an appointed position, without the support
of your family we couldn't be doing these things. And I am sure
the same applies to our judges, and I am just delighted to see
their families are supporting them.
Mr. Chairman, Phillip Figa is a well-qualified person to
serve on the U.S. District Court for Colorado. He has been a
Coloradan for 27 years and is an excellent jurist who will be a
terrific addition to the Federal bench.
Since Phillip Figa earned his juris doctor degree at
Cornell University Law School back in 1993, both his career and
personal life have been one of service. He has accomplished a
well-balanced combination of service in the local community in
addition to his achievements in private practice. He is the
president of Burns, Figa and Will, a well-respected law firm
located in Englewood, Colorado. He is a fellow with the
International Society of Barristers, whose membership includes
about 600 outstanding trial lawyers dedicated to excellence and
integrity and advocacy.
He has led the Colorado Bar Association, including service
through everything as the head of the bar association's Ethics
Committee. He has also served as the Chairman of the board of
the Anti-Defamation League's Mountain States Region. He enjoys
very broad bipartisan support, including former Senator and
State Senate Majority Leader Mike Feeley's endorsement; also
the endorsement of Colorado's Supreme Court Justice Gregory
Hobbs, who predicted he would have a very fine view of the
judiciary as the third branch of Government and a person who
calls them as he sees them.
Former President of the Colorado Bar Association Miles
Cortez said of Phillip, ``Figa's extensive Federal court
experience will likely enable him to hit the ground running.''
John Sadwith, the Executive Director of the Colorado Trial
Lawyers Association, said of Phil, ``He is a calm, even-
tempered person. I can't think of anything but superlatives.''
On Friday, August 22nd, the Denver Post editorial, which I
asked to be included in the record, declared that Phillip
Figa's nomination was a win-win judicial pick. It states him as
a good, solid choice, well-qualified lawyer with a moderate
reputation. It goes on to describe him as a highly competent
and smart lawyer who is known for being fair and thoughtful,
and I think in this position that is a sentence that we all
would try to adhere to, being fair and thoughtful.
So I just wanted to add my personal endorsement. I think he
will be a very, very fine nominee, and I look forward to the
early action of this Committee on confirming him.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you so much, Senator.
[The prepared statement of Senator Campbell appears as a
submission for the record.]
Chairman Hatch. Senator Allard, if I could ask you to defer
to Senator Hutchison who has an appropriations meeting she has
to get to.
Senator Allard. Mr. Chairman, I would be glad to defer to
Senator Hutchison.
Chairman Hatch. We will come right back to you.
Senator Hutchison?
PRESENTATION OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TEXAS, BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you so much, Mr. Chairman, and
thank you, Senator Allard. I appreciate that so much.
I am pleased to recommend the nomination of Judge Marcia
Crone. Judge Crone is a Dallas native, and she is joined today
by her husband, Seth, and I would like to ask him to stand.
Their two children are not with them, I understand, but, Seth,
thank you for being here.
Chairman Hatch. Happy to have you.
Senator Hutchison. Judge Crone is currently serving as a
U.S. magistrate judge in the Southern District of Texas, having
been there in that capacity since 1992.
Mr. Chairman, I have never given you a nominee with higher
academic credentials than Judge Crone. She was valedictorian of
her high school, one of the largest and best high schools in
our State. She was a National Merit Scholar. She had a 4.0 at
the University of Texas, was a member of Phi Beta Kappa, and
graduated first in her class from the University of Houston Law
School.
Chairman Hatch. That is pretty impressive, is all I can
say.
Senator Hutchison. I have to say, if she ever made a B, I
guess she would have thought that was failure in life.
Chairman Hatch. That makes you wonder how balanced she is.
[Laughter.]
Senator Hutchison. But in addition to her academic
credentials, she also has a wonderful professional achievement
record. She has served in private practice with a great law
firm in Houston, Andrews and Kurth, and became a partner there
until her appointment to the Federal bench. And as a U.S.
magistrate, she has presided over a number of civil and
criminal cases. In her 10 years there, she has authored 700
opinions, over 130 of which are published.
She has also been active in the community, in the bar
association; she serves on the board of directors of the
Garland Walker Inn of Court, is a mentor to Houston area law
students, and is active in her church.
She meets the high standards to which we hold Federal
judges, and we had a number of appellants for this seat in East
Texas, a newly created seat that will be in Beaumont. And she
just came out on top of our Committee process, which, as you
know, is a bipartisan process.
So thank you, Mr. Chairman, for allowing me to introduce
her. I couldn't recommend anyone more highly. And thank you for
your courtesies.
Chairman Hatch. Thank you, Senator Hutchison. We appreciate
you taking time to be here. I am sure we will move ahead.
Senator Allard?
PRESENTATION OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF COLORADO, BY HON. WAYNE ALLARD, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Allard. Mr. Chairman, thank you for allowing me the
opportunity to be here this morning and for holding this timely
hearing. It is a great honor to introduce Phil Figa to the
Judiciary Committee. He is up for consideration for the vacancy
in the Colorado Federal District Court caused by the
recruitment of Judge Match. Judge Match's departure leaves big
shoes to be filled. However, by the end of this hearing on Phil
Figa, I am sure you will understand why I believe that Phil is
the right person for the job. I also want to thank Senator
Campbell, my colleague and family member from Colorado, for
working with me to help expeditiously fill this important
vacancy.
Before I go any further, I, too, would like to welcome
Phil's wife, Candy, and his children, Ben and Lizzie, to the
hearing. Candy, Ben, and Lizzie, I bet you know--or, Mr.
Chairman, I think it is an unusual opportunity for the children
to be present when their father has to show up for a job
interview. And so it is a privilege, I think, to be able to see
something like that happen with a member of your family.
Earlier this summer, I had the privilege of having Ben Figa
serve in my office as an intern, and through this experience, I
learned to admire the strong family values so apparent in every
member of the Figa family. I have warned Phil that the
nomination process is a grueling one, but I know his family's
continued support and encouragement will provide the strength
and energy he needs in order to stand steadfast in pursuit of
this most worthy endeavor.
Senator Campbell has already mentioned the strong and
outstanding academic and community credentials that Phil will
bring to the bench. And I would second that he has a keen
intellect, an ideal temperament, and that is no secret. In a
letter dated June 10, 2003, Senator Campbell and I wrote to the
Committee, ``Mr. Figa is highly qualified and will ably serve
the people of the United States. . .(he) is well known
throughout the Colorado legal community for his credibility,
integrity, hard work, and firm grasp of the law.'' His
supporters hail from across party lines and include a variety
of elected officials from all levels of local, State, and
Federal Governments.
Phil and Candace have been married for 30 years. They met
in college at Northwestern, where he received his degree in
1973, Phi Beta Kappa. Candy then put Phil through law school at
Cornell, paying for his education by teaching English in a
nearby New York high school. Twenty-7 years ago, they moved to
Boulder, Colorado, where Phil began a clerkship at Sherman and
Howard. Eventually, the firm hired him as a full-time attorney.
While in Boulder, Candy decided to attend law school at the
University of Colorado, and I had to chuckle when he mentioned
that between college and law school, they had 10 years of study
dates together.
At Sherman and Howard, Phil worked with his mentor, Hugh
Burns, a Rhodes Scholar and well-known attorney. Eventually,
the two would form their own law firm, known today as Burns,
Figa and Will. And I would just mention that Figa just doesn't
stand for Phil. Candy also works at the firm. Together, they
have partnered for 25 years in the successful and prestigious
practice.
I had a good laugh when Phil said his ``work relationship''
with his wife may have been aided by the fact that they were on
different floors and they had to communicate via e-mail. My
wife and I have worked together in the same business, too, and
we never had that luxury.
Mr. Chairman, when considering the nominee, please know
that Mr. Figa has my unequivocal support. The confirmation of
his nomination by the Senate will prove to be a great service
to the people of the United States. As I have mentioned, his
nomination has enjoyed broad and bipartisan support from
judges, colleagues, and both Democrat and Republican Members of
Congress. Of the many gracious comments I have heard about
Phil, none characterizes him better than a statement made by
the managing partner at his firm. He said, ``He is a gracious
fellow. . .a very likable person. He's a gentlemanly
character.''
Phil is well grounded in family values. He enjoys the
Colorado outdoors. And according to criminal defense lawyer
Gary Lozow, Figa is a ``thoughtful and bright person who will
make a good Federal judge and is mindful of the awesomeness of
taking on that responsibility.'' The Rocky Mountain News noted
that he has achieved a rare balance in his life of family, law
practice, and community activities. The Denver Post has
endorsed him, and since my colleague has already asked that his
endorsement be made a part of the record, I will not make that
request.
Mr. Chairman, Phil Figa will serve our Nation with the
utmost of respect to our country and our Constitution, and for
this, I urge you to forward his nomination to the Senate with a
favorable recommendation. He is, in a word, ideal for the
Federal bench.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator. We sure appreciate you
coming, and I am sure that Mr. Figa does as well. So thank you
for taking time out of your busy schedule.
Without objection, we will put the statement of the
Democrat leader on the Committee, Senator Leahy, and also the
statement of Dianne Feinstein in the record before the
testimony of the Senators who have appeared.
Chairman Hatch. Well, Judge Bea, why don't we start with
you? If you will raise your right hand, do you swear that the
testimony you are about to give before the Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Judge Bea. I do, sir.
Chairman Hatch. Thank you so much.
Judge Bea, would you care to make an opening statement? We
are delighted to have your family with you. What a good-looking
family you have. In fact, every judgeship nominee here has a
wonderful family.
STATEMENT OF CARLOS T. BEA, NOMINEE TO BE CIRCUIT JUDGE FOR THE
NINTH CIRCUIT
Judge Bea. Thank you, Senator. I think I will let my family
be my opening statement, and we will proceed right to the
questioning.
Chairman Hatch. Well, thank you so much. That is good. I
think that is a pretty good opening statement.
[The biographical information follows:]
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Chairman Hatch. You have significant experience as a
private litigator and practitioner representing both plaintiffs
and defendants in primarily civil litigation, and since 1990,
of course, as a State court trial judge. Now, I understand that
you have also participated on appellate panels of the San
Francisco Superior Court during your tenure there.
Now, could you tell us how these experiences have helped or
prepared you to serve on the Ninth Circuit Court of Appeals?
And how would you characterize the key differences between the
trial and the appellate judicial roles?
Judge Bea. Well, I think the key difference between the
trial and the appellate court is the ability of the trial court
to determine facts, weigh the evidence, weigh the credibility
of witnesses, and come to conclusions when there is not a jury
there.
The appellate court, of course, has to determine the case
from the record that's presented and has a much narrower scope
of review and fact-finding, of course, than does the trial
court.
I have been fortunate, as you mentioned, to have been both
on the plaintiff and the defendant side, even in FELA cases,
which I think you have some experience with. For 15 years I was
a defense attorney, and then for the next 15 years I was a
plaintiff's attorney.
Chairman Hatch. It is a lot nicer being a plaintiff's
attorney, is it not?
Judge Bea. I think it's better paid for certain.
Chairman Hatch. Much easier too.
Judge Bea. And besides, you win more often.
Chairman Hatch. That is right.
Judge Bea. So that gave me a great deal of experience in
trial practice, and of course I think the 3 years I spent on
the appellate panel of the Superior Court, including 1 year
when I was the Presiding Judge, helped me because we were
taking appeals from the Municipal Court directly to the
Superior Court.
Chairman Hatch. That is great. You have been active in
efforts to make our legal system more understandable and
accessible to both Hispanics in this country and Spanish in the
Latin American audiences abroad. As I understand it, one
example of such efforts was your hosting of a program on
Spanish language television in the San Francisco area that
addresses various legal topics from labor union rights to
handling speeding tickets.
Could you tell us about some of your other outreach efforts
to the Hispanic community in the San Francisco area, and tell
us how successful some of these efforts have been.
Judge Bea. Well, getting back to that, I was the host of a
two- or three-minute segment every week which took questions
from the public as to how do you pay for a traffic ticket, how
do you use small claims court, what contracts have to be in
Spanish to be enforceable in California, and this would go on
once a week, and I would give a Spanish language explanation of
this on the 6 o'clock news which had a pretty wide readership.
In addition to that, of course, I've been pretty active in
the Hispanic National Bar Association, and they have a moot
court competition, nationwide moot court competition, and I
have sat as a judge in that. And I've participated in a lot of
Hispanic National Bar Association matters including I'm
supposed to give a speech tomorrow in San Jose, but I won't be
there. One of my friends, Alex Aldemondo, is taking my place,
giving a speech on motions in limine, which is a trial practice
issue.
I've attempted to give as much education as I can to the
hispanic community that needs to be educated in the Spanish
language.
Chairman Hatch. That is great. Can you tell us about some
of your pro bono activities, particularly those that led to
your Civil Order of Merit Award from the King of Spain in 1993,
and of course the Distinguished Judge Award from the La Raza
Lawyers of San Francisco in 2002.
Judge Bea. Well, we found, back in the late 1970's we found
that many Basque immigrants who had come as shepherds to the
Western United States, probably also to Utah, certainly in
Idaho, Nevada, California, had not been informed of their
rights to become American citizens after a period of time
working here. In some cases they had been misinformed by their
bosses to keep them on the farm. The Spanish Government at that
time--this was 1979, a democratic government of Spain--asked me
to please help inform these folks about their rights to become
citizens in the United States, as I have become a citizen, and
so I started a program of doing that. Then that led to sort of
representing all the Spaniards and some other hispanics,
relatives of Spaniards, who found themselves in legal
difficulties, whether it be immigration or criminal misdemeanor
type cases, and I would go to the jails and try to get them out
on their own recognizance. I appeared also in Immigration Court
several times for persons who had been here so long that they
were entitled to remain, although their paperwork wasn't all
that good.
Chairman Hatch. I am really impressed with you and your
service. Once of my closest friends is Paul Laxalt, who is a
Basque himself, and very proud of it, as he should be. I am
proud of the service that you have given.
The Ninth Circuit Court of Appeals is a very controversial
court in this country. It is reversed a high percentage of the
time by the Supreme Court. Of course, they hear thousands of
cases that the Supreme Court does not have time to consider. My
only caution to you there is just that we need people there who
are going to abide by the rule of judging, which is to
interpret the laws that are made by those who have to stand for
reelection, in other words, those who are politically supposed
to be making the laws, not judges. That is an easy statement,
but a lot of times where there are cases that are in gray
areas, where the law has not defined it, or where there is an
inter-circuit conflict, and I would count on you being one of
the real stable solid people on that court because of your
experience, and help to bring that court more into the
mainstream than it is right now. We are hopeful that you will
be able to do that.
Judge Bea. Thank you, Senator.
Chairman Hatch. It is a wonderful opportunity to serve on a
very distinguished court which is probably the largest
population presiding circuit court in the country, and it is
very, very important. It is an honor to have you here. It is an
honor for you to be nominated by the President of the United
States, and to have the support of both of your senators. That
means a lot to me. We will try to put you through as quickly as
we can.
I want to compliment your family. They look like really
wonderful people, and I am sure they are, and we are grateful
to have you here, and I will do everything in my power to get
you through as quickly as we can.
Judge Bea. Thank you very much.
Chairman Hatch. Thank you. With that, we will let you go.
I am pleased now to turn to our District Court nominees on
today's agenda. Our first nominee, Marcia Crone, is a graduate
of the University of Houston Law Center. She worked as an
associate and later as a partner at the prestigious law form of
Andrews and Kurth before being appointed as a Federal
Magistrate Judge in 1992.
If you could just come up and take your seat right there.
We welcome you. You are on your far right.
I have no doubt that her elevation to the District Court
will greatly benefit the Eastern District of Texas.
Phillip Figa, our nominee for the District of Colorado has
been actively involved in the Colorado legal community since
the beginning of his legal career.
If you all will just take your seats as I announce you. Mr.
Figa.
A graduate of Cornell Law School, Mr. Figa has been a
partner at a Colorado litigation firm for the past 20 years. He
currently serves on the Board of Directors of the Anti-
Defamation League for his region, and has assumed various
leading roles in the American Bar Association and the Colorado
Bar Association. So I look forward to confirming this very
accomplished and community-oriented practitioner to the federal
bench. We welcome you here, both of you.
Robert Clive Jones is our nominee for the District of
Nevada. Judge Jones graduated from UCLA School of Law in the
top 10 percent of his class. A member of the Order of the Coif,
and having served as an associate editor of the UCLA Law
Review. He clerked for Ninth Circuit Judge J. Clifford Wallace
before entering private practice. In 1983 he was appointed to
the U.S. Bankruptcy Court for the District of Nevada, where he
currently serves. I think Nevada is very fortunate to have you
as a person who will serve on the Federal District Court Bench,
and we are grateful that you are willing to make this
sacrifice.
William Hayes has been nominated to the Southern District
of California. Mr. Hayes received his BS, JD and MBA degrees
from Syracuse University. He began his legal career as a civil
litigation associate. Then in 1987 joined the United States
Attorney's Office for the Southern District of California where
he currently serves as Criminal Division Chief. Mr. Hayes is an
extremely accomplished trial lawyer, and I believe his
extensive civil and criminal legal experience will serve him
very well when he is confirmed to this position, and I expect
to see that you are. We are delighted to have you here and
delighted you have this opportunity.
John Houston is our nominee for the Southern District of
California. Judge Houston entered public service after law
school when he joined the U.S. Army Judge Advocate General
Corps. He then joined the U.S. Attorney's Office for the
Southern District of California before his appointment in 1998
as a Federal Magistrate Judge. Judge Houston has been
recognized repeatedly for his outstanding legal skills over the
course of his career, and I have no doubt that he will continue
to serve well the Southern District of California upon his
elevation to the District Court Branch, and we are honored to
have you here. We look forward to talking with you.
Our nominee for the Eastern District of Oklahoma, Ronald
White, is a distinguished litigator. After graduating from the
University of Oklahoma Law School in 1986, Mr. White joined the
law firm of Hall, Estill, Hardwick, Gable, Golden and Nelson in
Tulsa. His practice has focused on litigation in the areas of
tort and insurance defense, medical malpractice, corporate
litigation, ERISA and telecommunications. Mr. White is a well-
respected legal practitioner in Oklahoma and will make a fine
addition to the Federal Bench there.
I want to welcome all of you impressive nominees to the
Committee, and I certainly commend the President for nominating
each of you to these positions.
Would any of you care to make any opening statements? We
will start with you, Judge Crone.
STATEMENT OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF TEXAS
Judge Crone. Mr. Chairman, thank you very much. It is such
an honor to be here today before the Committee, and I just want
to express what great feelings I have to be given the
opportunity to serve the country. I have been very honored to
be a United States Magistrate Judge, and I look forward to
continuing my service if confirmed.
My husband is here with me today. Unfortunately, my
children, who--I guess you would say in our household academics
are important. But my two daughters, who are in high school, it
is science test day on Wednesdays. So they are in school today.
Chairman Hatch. They need to be there.
Judge Crone. But thank you, Mr. Chairman.
[The biographical information of Judge Crone follows:]
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Chairman Hatch. We are delighted to have you here.
Mr. Figa?
STATEMENT OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLORADO
Mr. Figa. Mr. Chairman, first of all, I would like to thank
you and the Committee for allowing me the opportunity to be
considered on such an expedited basis.
In addition to my family, I would like to introduce a few
people including Chuck Turner, the Executive Director of the
Colorado Bar Association, who came out for this.
Chairman Hatch. Glad to have you here, Chuck.
Mr. Figa. My law partner, J. Kemper Will, who came out from
Denver yesterday for the hearing.
Chairman Hatch. I am honored you are here.
Mr. Figa. Good friends, Jim and Marlene Bailor of
Washington, D.C., and my children's college classmates, Seth
Rosen and Erica Gorchow, who are here today.
Chairman Hatch. Good to have you both here.
Mr. Figa. And I would also like to thank my Senators for
their participation in this process, and their support, and of
course, the President for honoring me with this nomination.
[The biographical information of Mr. Figa follows:]
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Chairman Hatch. Thank you.
Mr. Hayes?
STATEMENT OF WILLIAM Q. HAYES, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF CALIFORNIA
Mr. Hayes. Thank you, Mr. Chairman. I just wanted to thank
you as well for scheduling this hearing, and also wanted to
express my thanks to both of the Senators from California for
their support.
[The biographical information of Mr. Hayes follows:]
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Chairman Hatch. Thank you.
Judge Houston?
STATEMENT OF JOHN A. HOUSTON, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF CALIFORNIA
Judge Houston. Good morning, Mr. Chairman. I thank you for
the opportunity for this expedited hearing.
I would also like to thank my family for being here today
to support me in this endeavor as they have throughout my legal
career, and also a special thanks to the Senators for their
support.
[The biographical information of Judge Houston follows:]
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Chairman Hatch. Thank you.
Judge Jones?
STATEMENT OF ROBERT CLIVE JONES, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEVADA
Judge Jones. By way of introduction, Mr. Chairman, if I
may, my companion and spouse is here, Anita Michele; and my
youngest daughter, Kimberly Miller and her husband Ryan.
Kimberly is a nursing student, graduating from Brigham Young.
Ryan works for a nationwide CPA firm officed in Las Vegas.
Chairman Hatch. Delighted to have you with us.
Judge Jones. For the record, I can just mention we have
three other children. They are here with us in spirit, my
daughter JaNae and Mark Barrow reside in Phoenix. He works for
a medical provider firm. JaNae is a prior teacher. They have
three of our grandchildren. My son Justin and Jenn live in Las
Vegas, Nevada. They have two children. Justin is an attorney
and CPA, again in a large national firm. And Melissa Henrich
and Jake. Melissa is a middle school math teacher in Phoenix,
Arizona, and Jake is a graphic arts computer specialist. He is
studying for his business degree in Mesa Community College and
then on to ASU.
It is a great honor to be here. I am very much humbled, and
appreciate the President for his nomination and the time of the
Committee. Thank you.
[The biographical information of Judge Jones follows:]
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Chairman Hatch. Thank you, Judge Jones.
Mr. White?
STATEMENT OF RONALD A. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF OKLAHOMA
Mr. White. Good morning, Mr. Chairman. I would like to
thank you for scheduling the hearing. The President has honored
me with this nomination, and I also express deep appreciation
to Senators Nickles and Inhofe for their support.
I only brought one friend for support today, but she is the
best one I have, my beautiful wife, Lisa.
Chairman Hatch. We are happy to have you here, very much.
That is a pretty good friend. That is all I can say.
[The biographical information of Mr. White follows:]
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Chairman Hatch. If you would all stand, I will swear you
all in.
Do you solemnly swear that the testimony you are about to
give before this Committee will be the truth, the whole truth
and nothing but the truth, so help you God?
Judge Crone. I do.
Mr. Figa. I do.
Mr. Hayes. I do.
Judge Houston. I do.
Judge Jones. I do.
Mr. White. I do.
Chairman Hatch. Let us start with you, Judge Crone. You
have already had a distinguished career as both an attorney and
as a United States Magistrate Judge. Obviously, you have gained
some insight from your professional experience on both sides of
the docket which will influence your judicial temperament as a
Federal District Court Judge.
Having had the experience as both a judge and an advocate,
would you speak just briefly about the role and significance of
your experience, and maybe the role and significance of
judicial temperament, and state what elements of judicial
temperament you consider to be the most important.
Judge Crone. Thank you, Mr. Chairman. Yes, having been a
practitioner--I've practiced law for 14 years in a variety of
capacities. I worked in labor and employment areas, products
liability, commercial litigation, and have a good grasp of many
of those areas, which I found very useful when I moved to be
the magistrate judge, or one of the magistrate judges in
Houston.
In that capacity my knowledge of the law has greatly
expanded. It has been a true challenge to master the law and
also to understand the litigants, what's really driving the
litigants. I enjoy the exposure to the criminal law which I did
not have as a practitioner. That was strictly civil. It's, I
think, caused me to have much greater insight into what's
valuable in this country, what people think is important, and
really an insight into some of the problems plaguing the
society that I've seen through the criminal docket. It's been
an eye-opening experience, and I think it's been very helpful
to me to be understand and empathize, but also realize the very
serious and significant difficulties in many areas that are
challenges to the country, to the viability and stability of
our country.
I think that combining those two areas of experience will
help me tremendously on the District Court Bench. I welcome the
opportunity to handle felony criminal matters. To date I have
only handled pretrial matters on the felony side. Of course
I've done misdemeanor cases and things like that, that we do
have jurisdiction of.
I think judicial temperament is key. What is brought forth
to me is the very importance of these cases to the litigants. I
think judicial temperament, you need to be very serious about
the matter at hand. This is an important decision in these
people's lives, whether it's civil or criminal, and to treat
the litigants with the utmost respect, courtesy, dignity to
which they're entitled. We are very fortunate in the United
States to be able to resolve the problems in the courtroom, not
in a battlefield and not in a back alley. And I think the
judicial role is to see that that privilege is afforded to all
citizens, residents of the United States.
Chairman Hatch. Thank you. That is helpful. One of the
things we worry about here is that, I have often said that
being a Federal Judge, District, Circuit or Supreme Court
Justice, is the closest thing to godhood in this life, because
once you are there, the only way they can remove you is for
really bad action. Unfortunately, there are some judges, who
once they get on the bench, allow it to go to their head and
become very dictatorial and temperamental.
I would caution each of you to try and realize that you are
dealing with human beings. You are dealing with attorneys, some
of whom are highly skilled, some of whom are just learning, and
you are dealing with various witnesses and so forth, and it is
good to be humble on the bench if you can, and I just mention
that to all of you. It is tough to be a judge, because once you
start making decisions, you are going to irritate somebody all
the time, and somebody is going to call you arrogant no matter
what you do. But just keep that in mind, that you are servants
of the public, and I sure hope that you can be humble servants
of the public and do everything you can.
Judge Crone, you have served as a magistrate judge for more
than 10 years, and I have been impressed by your commitment to
serve your country in that capacity, and I am sure it was
somewhat of a transition to adjust to work after your career as
an attorney. You have talked a little bit about that
transition. As a magistrate judge, how do you believe that has
prepared you to serve as a Federal District Court Judge?
Judge Crone. I've been very fortunate as a magistrate judge
to have a number of consent cases where I really fit in the
same capacity as an Article III District Judge, and have
handled those cases in their entirety, a number of them. And I
think that has prepared me by basically doing many of the same
duties as a District Judge would do.
Also, seeing the pretrial part of the criminal aspect, the
District Judges often don't see the pretrial work that we do,
initial appearances, bond hearings and things like that. It
gives me a good grasp on that entire procedure, because then
moving into the felony trials, I think I'm prepared for that. I
know that there will be additional issues that come up that I
have not been dealing with, but I have basically become
familiar with suppression issue and the like.
In the Southern District of Texas we have a large habeas
docket, so I've dealt with many criminal issues, handling
innumerable petitions for writs of habeas corpus. I think that
that has been the best training ground as a Magistrate Judge
for a District Judge position that one could really imagine,
because I would be dealing with the same type of issues, the
lawyers' understanding of the sensitivities that are required,
the amount of preparation that's required. One really needs to
know the law and the different areas of each case before you to
really understand what the legal issues are as well as the
factual dynamics of the case. So I think it has been just
invaluable experience, and I want to continue my education in
that area.
What I've enjoyed about the job is I'm learning something
new all the time, and I think that's going to continue
throughout because every case always presents something
different. There's a new twist, there's a new issue, there are
new laws that are passed, when we're looking at that, and it's
just always been a very challenging and dynamic environment,
and I look forward to hopefully being able to continue that.
Chairman Hatch. Thank you.
Mr. Figa, in 1995 you created a Federal pro bono mentor
program for Colorado. This program assists Colorado's Federal
Trial Bench in providing counsel for pro se litigants, in whose
civil cases the judges determine are in need of appropriate
counsel. Can you elaborate on the program's significance and
purpose?
Mr. Figa. Yes, sir, Mr. Chairman. I was delighted, as State
Bar President of Colorado to institute this program that would
enable junior and senior lawyers to work together to handle
cases that the Court believed needed attention by
representation for pro se litigants, mostly prisoners, some
civil cases. Where there was some plausible merit to the
plaintiff's claim, the Court felt it was important to have
someone learned in the law handle those individuals' cases and
as it turned out, we were able to get the support of the court
and the bar to enlist a number of junior and senior lawyers to
work together, which would help the litigants of course, which
would help the court, and which would help junior lawyers
develop the skills and values they need by being mentored by a
senior lawyer in working on such cases, and I was appointed to
one of them and actually won a judgment and was able to donate
a sizable amount of the proceeds from the recovery of that case
to the program to finance others who would be going forward in
representation of clients under the program.
Chairman Hatch. Our District Court are overburdened with
litigation. How do you feel about mediation and arbitration as
maybe forms of alternative dispute resolution?
Mr. Figa. I think those are significant advances in terms
of dispute resolution. I have participated in numerous
arbitrations and mediations over my 27 years of trial practice,
and I would try to encourage that to the extent possible. It
seems to me that the court itself can be a significant
participant in encouraging alternative uses of judicial
resources and non-judicial resources to help resolve disputes
and to ease the congested dockets in our Federal Courts today.
Chairman Hatch. Thank you.
Mr. Hayes, what do you believe will be your biggest
challenges in assuming the role of a Federal Judge in
California and how are you going to address them?
Mr. Hayes. Thank you for your question, Mr. Chairman. As
you're aware, I've spent the last 17 years as a prosecutor for
the United States, and so I look forward to the challenge to
again, reacquainting myself with civil practice. I spent 3
years in civil practice in Colorado, and have some taught some
law school classes dealing with civil practice. Although that's
certainly the area that I need to reacquaint myself with, I've
begun that process and will continue to reacquaint myself with
civil practice to complement my extensive criminal experience.
Chairman Hatch. How are you going to balance the interests
of the prosecution and the defense in criminal trials?
Mr. Hayes. Senator, I will be able to do that, as in civil
practice we represented both plaintiffs and defendants. When I
was in civil practice I did represent a criminal defendant. I
represented, obviously, the United States for the last 17
years. I've litigated before the--for the United States and
against the United States. I certainly understand the
difference between being an advocate and a judge. I've been
fair and evenhanded as a prosecutor, and I would be as a judge
if I am fortunate enough to be confirmed.
Chairman Hatch. You've taught a variety of legal and
business courses at four different academic institutions. Could
you elaborate just a little bit on the courses that you teach
and what you have learned from these experiences?
Mr. Hayes. I've taught the legal and ethical environment of
business in business law at the University of Colorado. I've
taught an accounting class at National College in Colorado.
I've taught a number of law school classes at Thomas Jefferson
Law School in California. Those were criminal procedure, white-
collar crime. I also taught tax fraud at the University of San
Diego College of Law. It has given me a wide background in a
number of areas. I've enjoyed interacting with a variety of
students both in the graduate business schools and in law
schools. It's been a very professionally rewarding experience
and has motivated me to obtain some expertise in a number of
legal areas.
Chairman Hatch. Thank you.
Judge Houston, you have given numerous speeches on the
progress that African-Americans have made in the last century
and the challenges that they face in the 21st century, and you
have noted a number of historical contributions of such
prominent African-Americans, Homer Plessy, Olivia Brown, Rosa
Parks, Dr. Martin Luther King, Jr., and as a matter of fact you
have been a member of the Martin Luther King Day Parade
Committee in San Diego for more than 20 years, I believe.
Can you tell the Committee how the experiences of these
individuals have influenced the decisions that you have made
throughout your career and what role this influence will play
after you are confirmed as a Federal District Court Judge?
Judge Houston. Thank you for the question, Senator. The
role these individuals have played in my mind to make me a
better judge has been the attribute primarily of courage. If
you look at Plessy in the late 1900's, Mr. Plessy had the
audacity to challenge the system because he felt that he could,
he should be able to ride in a railroad car on the railroad
line on which he worked and sit with anyone else. That was a
hard task for him to do I'm certain in the late 1900's, and to
pursue his dream that the American system was for everyone, and
that his rights were that as--worth as much as those of any
other citizen, and pursuing his dream through the courts.
Certainly Dr. King has been very instrumental in American
history. Dr. King also exhibited the courage and the belief
that the Constitution has meant what it said, that America is
to treat all members of the society in an equal and fair-handed
manner.
The other individuals, the other civil rights leaders I've
mentioned have all had the same common thread, courage to
believe that the system is there to work for each and every
person. I've participated in the Martin Luther King Parade over
the years because it's been my view that to bring a parade to
the city of San Diego, with the assistance of the City Council
and the San Diego County Commissioners, along with the San
Diego Police Department is only a testament of Dr. King's
interest in ensuring that this is a free and open society to
everyone.
Every dealing I've had in the public sector has surrounded
the issue of open access and freedom for everyone, and that the
Constitution and the laws of the United States apply to each
and every one.
How do I bring that into the courtroom? In the courtroom I
look at every litigant in a fair and equal manner. Every
litigant walks into the courtroom on the criminal side innocent
until proven guilty regardless of the charges. And on the civil
side, I've learned as a Magistrate Judge that litigants come to
court seeking justice for the wrongs that have been done
against them, whether it's in a discrimination area, breach of
contract, it could be a business venture between one
corporation and another. They come to see justice and redress
in our legal system, and I have learned through the course of
my responsibilities as a Magistrate Judge that every litigant
in a courtroom seeks the same thing. They want a fair, timely
ruling from a court, and regardless of whether they win or
lose, when they leave that courtroom they should feel that
justice has been done and they've had their day in court.
My judicial philosophy is to that end, that every person
who approaches my courtroom with a case will know that they
will receive a fair and impartial hearing, that I will keep an
open mind, that I will listen and not make a decision until the
end of the day, until the evidence is closed, and that I will
give 150 percent to every matter that comes before the court to
ensure access to the courts. In my view, these factors lead to
public confidence in the integrity of the judicial system, and
it's my aim and goal to continue to proceed, if I'm confirmed
as District Court Judge, to ensure that my courtroom is open to
the public in such a matter.
Chairman Hatch. Thank you, Judge. One other thing, in your
question there you said your involvement in your community has
centered primarily on children who are under served. I take a
great interest in that, among many other things, but certainly
in children. But you cited several programs, but one in
particular is called Judges in the Classroom. Would you please
tell the Committee just a little bit about this program?
Judge Houston. Certainly, Senator, and I appreciate that
question as well. As is indicated in my application, the
children in our communities is our--you know, they represent
our future. We must, as judges, as all respectable members of
our society, reach out and assist these children to be the best
adults that they can be by providing tools to them during their
childhood, and resources during their childhood, so that they
can grow into responsible and productive citizens of the United
States.
The Judges in the Classroom program is actually a program
that was created by the current presiding Magistrate Judge, and
in this program Federal District Court Judges, Magistrate
Judges and Bankruptcy Judges, have volunteered to make
themselves available to the classrooms in the public school
system in the city of San Diego.
Teachers contact us individually to ask us to come to their
classrooms. We coordinate with the teacher as to the subject
matter for the day, and the subjects include: government, the
jury system, trial practice, what it takes to be a lawyer or a
judge, and what it takes to be a responsible citizen, and the
duty of all citizens to vote once they become of age. We
instill these values and thoughts in the children's minds at a
very early age through this particular program.
This program also entails a component wherein students come
to the classroom for mock trials, Goldilocks and the Three
Bears. Criminal trials, 100 Dalmatians, there's a skit for
that. So that they can experience being participants in the
courtroom proceedings as lawyers, judges, as a lawyer, defense
counsel, prosecutor, witnesses, jurors and judge and bailiff,
and it has been a very well-recognized program in the city of
San Diego, and I'm very pleased to be a part of it.
Chairman Hatch. I compliment you for being part of it and
for the good work that you have done. You are clearly qualified
for this position, as all of you are, and I am very proud of
you.
Mr. Jones, let me take a moment with you. You have served
on the Federal Bankruptcy Court for 20 years. You are used to
being punished and beaten up I am sure.
[Laughter.]
Judge Jones. That is right, Senator.
Chairman Hatch. What skills have you mastered during your
tenure that you think would be helpful in serving on the
Federal District Court Bench, which naturally has a broader
jurisdiction?
Judge Jones. Two decades have taught me some of the skills
of judging. I consider the most important to be temperament. I
think of course high on the list of functions of a judge are
determine and resolve disputes. But certainly a very important
part of that is simply to listen. Aside from evidentiary
objections that you are making decisions on quickly, probably
the greatest function of a judge, either a Bankruptcy Judge or
a District Court Judge is to listen to the dispute and to allow
the parties, as well as the attorneys, to feel like they have
had their day in court.
I had a great experience, Mr. Chairman, on the Bankruptcy
Appellate Panel, some 13 years listening to appeals from
Bankruptcy Courts throughout the Ninth Circuit. It's given me a
great perspective in analyzing decisions, evidentiary
decisions, bankruptcy law decisions. It was a wonderful
experience for a long time. Our bankruptcy appellate panel was
the only panel that was functioning throughout the country.
Now, of course, most of the circuits do have functioning
bankruptcy appellate panels, but for those few years it was a
great experience to help settle bankruptcy law throughout the
country and consequently, many of those decisions are cited
throughout the country. That has brought to my mind a very, an
additional very important quality of a judge, and that is
fairly, analytically determining the law and its application to
the facts in front of you. When you do have to--hopefully we
don't have to publish so often on the District Court as you
might have to as an appellate judge, but when you do publish,
being sure that your interpretations of the law are correct and
fair. So I would say in summary, temperament, being a long
listener, a fair and impartial, unbiased determiner, when you
have to make decisions, those are some of the greatest
qualities that I think hopefully I've learned a little bit
about and would bring to bear.
Chairman Hatch. Thank you. In your questionnaire you have
mentioned a number of boards upon which you have served. One in
particular, a charitable organization called Opportunity
Village, I believe, assists the mentally disabled. Could you
please tell that Committee a little bit more about that
particular group?
Judge Jones. I served on that board for a couple of years,
Mr. Chairman. A great jurist in our community, Judge Lloyd
George, has a son who receives the services at Opportunity
Village. That's a great organization in our State and certainly
in our community. They have several formal places of conducting
business there. They entertain throughout the day a large group
of mentally challenged, mentally retarded persons. They give
them employment. They do actual projects and help to earn a
living for themselves. In addition, they perform educational
functions, and finally, they perform housing functions under
State and Federal grant programs providing housing for those
who are in need. It was a great opportunity to serve in that
capacity for a couple of years.
Chairman Hatch. Thank you.
I failed to turn to my colleague from Texas who probably
would like to say a few words about the Texas nominee here. I
apologize.
PRESENTATION OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TEXAS, BY HON. JOHN CORNYN, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Not necessary, Mr. Chairman. I do want to
thank you for chairing these important hearings. I do not think
there is anything more important that we do in the United
States Senate than hold confirmation hearings for members of
the Federal Bench. I am slightly prejudiced, given my 13 years
as a State District Court Judge, but all we have to do is to
read the newspaper or watch television to see that the framers'
concept of what a judge should be and how a judge should act
still remains controversial, as crazy a notion as that may
seem. I have got to say that without exception, that President
Bush's judicial nominees have not only all been well qualified,
including this panel and the one that preceded them, but also
committed to the role that judges should play under our
Constitution, that is, not as lawmaker, but as someone who
interprets the law, not as a alternative legislative branch or
a super legislature or someone who wears a black robe and
legislates from the bench, but someone who understands that
their job is to interpret the law and to render judgment based
on a set of facts determined by the fact finder in accordance
with the legislature and apply the laws determined by the
legislature or by some appellate court or appellate court
precedent.
That is an honorable, a tough job sometimes, but it is
always important, and I want to congratulate each one of you
for your willingness to take on this important job and just
reinforce in your own minds something you already know, and
that is the tremendous gravity and importance of the role that
you have agreed to accept.
In particular I wanted to be here for Judge Marcia Crone's
confirmation, Mr. Chairman, because I had the pleasure along
with Senator Hutchison, who I know was able to be here earlier,
to recommend her to the President, and the President did see
fit to accept that recommendation, and as well I think as he
should because of her distinguished service already as a
magistrate, Federal magistrate, working in 1992 in one of our
busiest districts in the United States Southern District of
Texas, there in the Houston Division. She has distinguished
herself as an outstanding jurist. She has authored
approximately 700 opinions already as a Federal Magistrate,
over 130 of which have been published. I am sorry I was not
able to be here earlier when the official introductions were
being made, but I will ask that the remainder of my
introduction be made part of the record of the hearing.
Chairman Hatch. Without objection.
Senator Cornyn. And did want to come to congratulate Judge
Crone and her family for this tremendous honor and commend her
for accepting this tremendous responsibility that she has
demonstrated her willingness to take on, and with that, Mr.
Chairman, I thank you very much and pass it back to you.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator.
Mr. White, let us just finish with you, and then if Senator
Cornyn has any questions, we will turn to him.
Just one. In your questionnaire you mentioned the pro bono
case in which you successfully appealed the decision of a self-
funded health plan administrator in denying benefits for a life
saving surgical procedure to a plan participant. Tell us about
that case and your view on the importance of pro bono work.
Mr. White. Thank you, Mr. Chairman. I think those are all
very important issues because they do involve both pro bono and
the health care system as we have in our country now.
A substantial part of my practice is in ERISA benefits
litigation, and that's afforded me the opportunity to appear in
Federal Court on those issues quite frequently, and it's also a
rather, some would say obtuse area of the law, and I've enjoyed
learning that area. Because it is not widely practiced, I
receive a lot of questions from other clients of my firm, from
other lawyers in the community, and cold calls off the street
because they've heard my name and they think maybe I can help
them with a problem they're having with their health plan or
their health insurance, and I'm always pleased to take those
calls and meet with those people if I can because it is a very
complex area.
This particular situation was a gentleman who had a aortic
aneurism, and he was an employee--he was disabled so he's no
longer working, but he was a former employee of a major Tulsa
employer, one that my firm had done work for previously a few
years before but we no longer represented. He needed surgery to
repair that aneurism and he needed it quickly. At the time the
introduction of stent technology, where a wire mesh tube is put
into the aneurysm and then the aneurysm cut away was brand new,
brand new technology, and as most health plans do, this
particular major employer's health plan had an exception, an
exclusion for experimental procedures. Without this procedure
this man would die.
I convinced my firm to allow me to take a case against a
major Tulsa employer and former client and possibly a client in
the future, to attempt to convince them through the
administrative appeals process for that plan to change their
mind.
We went through the administrative appeals process. I
gathered evidence from his physicians, from experts across the
country, and with his help, and by taking an approach, not a
confrontational approach, but a reasoned and persuasive
approach, we were able to convince the appellate panel of that
health plan to change their minds and approve that surgery in a
timely manner, and to that extent it had a very happy ending.
Chairman Hatch. Thank you.
There are a lot of questions we could ask all of you, but
you are all qualified, and I know that, and I think everybody
else knows it too, so I am going to do everything in my power
to get all of you confirmed as soon as possible. I just
appreciate your willingness to serve because these are among
the most important positions in our society, and they should be
venerated by every person in our society because of the great
work the Federal Bench does. I do not care whether you are
Democrats or Republicans, we have had great people in both
parties, people from all persuasions who have become great
judges. We have had people from all persuasions who have been
less than great judges too. But I am counting on all six of
you, and of course, Mr. Bea as well, to be great judges. We
look forward to seeing you work on the bench and look forward
to getting you through the Senate.
With that, I am going to recess until further notice. Thank
you all for your service.
[Whereupon, at 11:22 a.m., the Committee was recessed until
call of the Chair.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF MARGARET CATHARINE RODGERS, OF FLORIDA, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; ROGER W. TITUS, OF
MARYLAND, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND;
AND GEORGE W. MILLER, OF VIRGINIA, NOMINEE TO BE JUDGE FOR THE UNITED
STATES COURT OF FEDERAL CLAIMS
----------
WEDNESDAY, SEPTEMBER 17, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senators Cornyn and Craig.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. Good morning. This hearing of the Senate
Judiciary Committee will be convened, and I know we have a
number of Senators who are going to make some introductions,
and, of course, I will recognize Senator George Allen from
Virginia. We will recognize you for your comments and
introduction, Senator Allen, in just a moment.
The purpose of today's hearing is to consider the
nominations of Margaret Catharine Rodgers to be United States
District Judge for the Northern District of Florida; Roger W.
Titus to be United States District Judge for the District of
Maryland; and George W. Miller to be Judge for the United
States Court of Federal Claims.
I want to thank Senator Hatch, who could not be here today,
for scheduling this important hearing. I believe that
considering the confirmation of judicial nominees is among the
most important duties that the United States Senate has.
Obviously, these are very important positions. And it is with
great pleasure that I welcome the nominees this morning, and we
will get a chance to hear from you and hopefully have a chance
for you to introduce your family and friends who accompanied
you on this wonderful occasion.
But at this time I would like to recognize my colleague,
the junior Senator from Virginia, Senator George Allen, for any
comments he might care to make.
Senator Allen?
PRESENTATION OF GEORGE W. MILLER, NOMINEE TO BE JUDGE FOR THE
UNITED STATES COURT OF FEDERAL CLAIMS, BY HON. GEORGE ALLEN, A
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman, and thank you for
having this hearing. And I know this Committee goes through
many candidates, and I know you as Chairman and as a member of
this Committee have worked to make sure that we as a Senate
have the advice of the Judiciary Committee and move forward on
these qualified nominees. And while you may be the junior
Senator from Texas, you have hit the road with strong force,
and you have just been truly a tremendous asset to the Senate
and to America with your knowledge, your experience, your
expertise, and also your commitment for equity and fairness and
consideration of judicial nominees.
Mr. Chairman, I am here this morning to speak to you and
members of the Committee to support and introduce the
nomination of a fellow resident of the Commonwealth of
Virginia, George W. Miller, to be a judge on the United States
Court of Federal Claims. His wife, Kay, and son, George III,
are back towards the back there, if they would please rise.
Senator Cornyn. Why don't you stand and be recognized, if
you would, please. Thank you. Thank you for coming.
Senator Allen. I would say, Mr. Chairman, that Mr. Miller
has exceptional legal expertise that has prepared him very well
for being a judge on the Court of Federal Claims. He has
through his years, as you can see from his resume, served in
the U.S. Navy Judge Advocate General Corps, served in the
United States Naval Reserve. He served as a law clerk for Hon.
Bruce Forrester on the United States Tax Court. From 1968 to
1970, Mr. Miller was in the Office of the Assistant General
Counsel for Logistics for the United States Department of
Defense.
Since 1970, George Miller has been with the law firm of
Hogan and Hartson here in Washington, D.C., becoming a partner
in 1977. Mr. Miller also served the Commonwealth of Virginia
for several years as an eminent domain counsel in the Northern
Virginia District for the Virginia Department of
Transportation. Most importantly and relevant to your
consideration of his capabilities and experiences, he has been
admitted to several courts of the U.S.: the Tax Court of the
United States, the U.S. Court of Federal Claims, and he is also
admitted to the bar in Virginia, New York, and the District of
Columbia. He has spent much time as a lawyer handling a broad
range of civil litigation, takings litigation, and commercial
arbitration matters. His cases have been heard in the U.S.
Court of Federal Claims, the very court that he has been
nominated to serve. And, in fact, I asked Mr. Miller, ``What
percentage of your cases are in that court?'' He said, ``Fifty
percent or more.'' So that is a fairly unique Federal court,
and so he has the experience of how it ought to operate and
operate well.
Indeed, he is on the Advisory Council for the U.S. Court of
Federal Claims as well, and I am very confident, Mr. Chairman
and members of the Committee, that you will find him to be an
outstanding nominee and, more importantly, an outstanding
judge.
So I would ask you in the most respectful way to examine
this gentleman, and when you examine George Miller's record,
his exceptional record, in particular in the Court of Federal
Claims, you will find, I think, Mr. Chairman, an outstanding
candidate that we would want to move forward with, with all
deliberate speed--to the extent there is deliberate speed in
the Senate, but as quickly as possible.
I thank you for having this hearing and also for your
perseverance in making sure our nominees get prompt and fair
consideration. Thank you, Mr. Chairman.
Senator Cornyn. Thank you very much for your comments,
Senator Allen. We are delighted to have you here today.
Senator Warner sent along some written comments, and they
will, without objection, be made part of the record, as will
the complete written statements of each of our Senators who are
making statements here today. Thank you very much for being
with us.
Senator Allen. Thank you, Mr. Chairman.
Senator Cornyn. At this time it is my pleasure to recognize
Senator Sarbanes for purposes of any comments he would like to
make relative to the nomination of Roger Titus, and then we
will recognize Senator Mikulski. Thank you very much for being
here.
PRESENTATION OF ROGER W. TITUS, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MARYLAND, BY HON. PAUL SARBANES, A U.S.
SENATOR FROM THE STATE OF MARYLAND
Senator Sarbanes. Thank you very much, Mr. Chairman. I am
very pleased to come before the Committee today, along with my
colleague, Senator Mikulski, to introduce a very highly
respected leader in Maryland's legal community, Roger Titus,
who has been nominated to serve on Maryland's Federal district
court.
Roger Titus received his undergraduate degree from
Maryland's Johns Hopkins University and then his law degree
from Georgetown University Law Center. While he was at law
school, he worked as a claims adjuster for Allstate Insurance,
and I just mention that to just sort of show he has had some
real grass-roots experience if he is going to go on the Federal
bench and understand the problems of ordinary litigants.
He went on to a very distinguished legal career. He was in
a small firm in private practice, was a city attorney for the
city of Rockville for a number of years, but then joined
Venable, Baetjer and Howard, which is one of our State's
absolutely leading law firms, has been with them now for a
number of years and, of course, is a partner.
He has had a range of experience in private practice. I
think it will serve him well on the Federal bench. He has
concentrated in litigation. He has had significant experience
in State and local government law, in general litigation,
constitutional litigation. He has handled a wide range of
complex commercial litigation matters and, in addition, has had
a very successful career in the appellate courts.
He has also--and I want to stress this--been a leader in
our legal community. He has been very active in a range of bar
activities, including serving as president of the Maryland
State Bar Association. We have a very strong, active State Bar
Association in the State of Maryland. We are very proud of it.
It has a whole range of programs committed to enhancing the
professionalism of the legal profession in our State. They do
not give the presidency of that organization out very lightly,
and Roger has served as its president and has been a member of
its Board of Governors for a number of years. He has also been
head of the Maryland Municipal Attorneys Association, the Trial
Court Judicial Nominating Commission. There are a whole range
of bar activities, all of which I think reflect his own
personal commitment to elevating the standards of legal
practice and legal service in this country.
He is a member both of the American College of Trial
Lawyers and the American Academy of Appellate Lawyers. And I
think it is fair to say that within his profession he is
regarded as preeminent amongst his colleagues at the bar. In
fact, the Montgomery County Bar Association just a few years
ago gave him the Century of Service Award. They picked 15
people who had been the best attorneys and judges in the 20th
century in terms of legal excellence and service to the bar and
community in Montgomery County, which is his home, and he was
amongst the 15 selected. I think that is quite a high honor.
He has also been involved in a number of civic activities,
most importantly heading up the Board of Trustees of Suburban
Hospital, and we know, of course, what is involved if you head
up a major hospital board and the significance of that.
So this is a man of wide experience, breadth and depth of a
very strong commitment to the best principles of the legal
profession. I think he will be a stellar addition to our
Federal district court. We are proud of our court in Maryland.
We think it does a very good job, and I think Roger Titus
brings to it the kind of qualities that we look for in a judge:
excellent intellectual credentials, the breadth and experience
to understand the situations confronting litigants who will
come before his court, active participant in our legal
community, high contribution to the legal discourse of our
State, participation in Maryland's civic community, and he
really is a person who commands respect and esteem in our
State. His nomination by President Bush has been received with
great favor throughout both the profession and the broader
community in our State, and I am delighted to come today and
introduce him to the Committee and to urge his favorable
consideration upon you.
Thank you.
Senator Cornyn. Thank you very much, Senator Sarbanes. We
appreciate your comments and your presence here today, as we do
Senator Mikulski, and we are delighted to have you here. We
would be happy to hear any comments you would like to make with
regard to this nomination.
PRESENTATION OF ROGER W. TITUS, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MARYLAND, BY HON. BARBARA MIKULSKI, A U.S.
SENATOR FROM THE STATE OF MARYLAND
Senator Mikulski. Thank you very much, Mr. Chairman. I
appear before the Committee today with great enthusiasm to
recommend to the Committee the nomination of Roger Titus to be
on the Federal district court in Maryland. Senator Sarbanes has
elaborated on this in great detail, but let me just say from my
perspective, when I look to moving a judge from our community
and voting for them on the floor from other communities, I look
for three tests: one, judicial competence, as verified by peers
and the legal community itself; second, high integrity and kind
of a pattern of community service, public service; and, number
three, dedication to core constitutional principles and
guarantees.
Judge to-be, I hope, Mr. Titus meets these tests well and
beyond the norm. First of all, on judicial competence you will
note from the record that he received a unanimous ``well
qualified'' from the ABA. In our own community, he is regarded
as a lawyer's lawyer, heading up the bar association, and,
again, the outstanding way in which he practiced law. If we
talk about Mr. Titus, one word if you had to describe him was
``distinguished.'' He has been distinguished in every
undertaking he has pursued.
When it comes to high integrity and community service, yes,
he was a city attorney and has done public law. He has been on
the Board of Trustees of Suburban Hospital. But one case in
particular I would like to bring to your attention. As a
practicing attorney, he undertook representing on a pro bono
basis something called Mobile Medical Care. This is a program
that provides free medical care to poor and homeless people,
and they wanted to have a headquarters in Montgomery County.
Well, zoom, zoom, we got into the NIMBY, the ``not in my back
yard.''
Mr. Titus threw himself into this case with all the vigor
and intellectual capacity and legal competency that he could,
and as you know, zoning can be arcane. The community was
enormously prickly. It took great negotiation skills. And, you
know, he has been with pretty feisty law firms, but he gave it
all that he had and treated them like they were a blue-ribbon
or a blue-chip client. That is the kind of man that is coming
before you today.
By the way, he won that case.
That just kind of tells you something about the man and
something about the character. We are very proud of him. Though
he was born in Washington, D.C., he is truly a son of Maryland,
being raised in our own Montgomery County and attending our
schools, like Johns Hopkins and, of course, Georgetown Law. His
wonderful wife, Catherine, is with him, and we are so pleased
that they have really been Team Maryland in many of their
community services.
He was the first in his family to go to law school. In
fact, he started out as an electrical engineer, and now he is
one of many of a family of lawyers. Two of his children are
lawyers.
Again, Senator Sarbanes has outlined really the legal
career of Mr. Titus and how he had his own firm in Montgomery
County, in Rockville. Then that firm merged with one of the two
law firms in the United States, Venable, Baetjer and Howard. We
might note to the Committee one of its partners is Ben
Civiletti, former U.S. Attorney General, and it is just one of
the most prestigious law firms in our State.
So when we go through, you can just see the outstanding way
that Mr. Titus has practiced law, lived in his community, and
we believe that he deserves the support that the Committee
should have, and we should move him expeditiously. This is an
outstanding appointment. This Committee and the Senate will be
proud of the job that Mr. Titus will do as a Federal district
court judge.
Thank you.
Senator Cornyn. Thank you very much, Senator Mikulski and
Senator Sarbanes, for your presence and participation here
today.
I see Senator Nelson in his usual just-in-time fashion is
here, and we would be delighted to hear from you, Senator
Nelson, with regard to any comments you would like to make
about the nomination of Margaret Catharine Rodgers.
PRESENTATION OF MARGARET CATHARINE RODGERS, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA, BY HON.
BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. Mr. Chairman, thank you, and it is my
delight. You know, one of the great things about the Senate is
you get to meet all of these nominees, and sometimes it is
three for a particular vacancy, and we have kind of worked out
a deal with the White House where Bob Graham and I will
interview all the nominees, and then let the White House know
if we have an objection. So we get to interview quite a few, as
you can imagine, with the size of Florida and all of the
vacancies that occur. And I must say that as I have not only
interviewed Casey Rodgers but I have had other people tell me
about her, I have received more good comments about this
nominee than is usually the case. And it is with a great deal
of pleasure that I come here to welcome her along with you, Mr.
Chairman, and her husband, James, and their children, and they
are here to support her.
The judicial appointees are charged with making important
decisions that greatly impact the daily lives of our citizenry,
and so we want the nominees to possess a great deal of
knowledge and experience, and we want that judicial temperament
of being impartial and fair and compassionate. And I think that
Mrs. Rodgers possesses these traits, and she passes the test
with flying colors with regard to her professional experience,
and she will be an excellent judge.
She is a graduate of California Western School of Law, was
sixth in her class. She has been a lawyer, and most recently
she has been a magistrate judge in the Northern District. And
that, by the way, is another interesting fact that I have found
since Senator Graham and I have interviewed so many nominees.
You usually do not have to worry about the magistrate judges,
that they have the--first of all, they have passed the test to
be selected by the judges, and then they have that great
experience.
Prior to her service on the bench, she had her own law
firm. She served as general counsel for the Better Business
Bureau, and she has been a member of the United States Army.
She is active in her community through a number of civic
organizations, and it is her hometown of Pensacola that have
spoken out so vigorously on her behalf. And based on her
professional success and my observations, I believe that she
will be an excellent judge, and I highly commend her to the
Committee, Mr. Chairman.
Senator Cornyn. Senator Nelson, thanks for those comments
and for your participation during this important confirmation
hearing for Ms. Rodgers, and the insights that Senators provide
about their home State nominees is immensely valuable to the
Committee, and I want to say thanks again for being here.
Senator Cornyn. If I may ask the nominees, please, to come
forward and be sworn, we will be glad then to proceed with any
statements you might care to make.
Do you swear that the testimony you are about give before
the Committee will be the truth, the whole truth, and nothing
but the truth, so help you God?
Judge Rodgers. I do.
Mr. Titus. I do.
Mr. Miller. I do.
Senator Cornyn. Thank you very much. Please have a seat.
Looks like, Judge Rodgers, you are on this end. We can either
move you or move the--
Well, thanks to each of you for being here today. And
Chairman Hatch does send his regrets. He is unavoidably absent
from the hearing. But I know each of you know enough about the
operation of the Senate to know that there are other eyes and
ears observing and listening to the proceedings here today.
And, of course, each one of you has already been through quite
an examination before you get to this point, through groups
like the American Bar Association, through Federal agencies
like the FBI, not to mention the evaluation process leading up
to your nomination by the President. And so we know you have
been scrutinized and analyzed, and your records combed with a
fine brush.
But we would be delighted to hear any comments you might
have to make in terms of any opening statement. And it is
entirely appropriate--and we are not too formal here--if you
would like to introduce members of your family or friends who
happen to be accompanying you on this important day,
recognizing the significance that this day must have in your
life and the life of those who love you and support you in what
you are doing.
So, Judge Rodgers, please proceed with any comments you
would like to make.
STATEMENT OF MARGARET CATHARINE RODGERS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA
Judge Rodgers. Thank you, Mr. Chairman. Is this on?
Senator Cornyn. Now it is.
Judge Rodgers. Thank you. It is indeed an honor and a
privilege for me to be here today. And I want to thank you, Mr.
Chairman, and the other members of the Committee for scheduling
this hearing and giving me the opportunity to address the
Committee.
I also want to thank Senator Nelson for being here today
and for his kind words of support on behalf of my nomination.
While I don't have an opening statement per se, I would
like to take the opportunity to introduce some special people
who are here with me today for support.
First, I have my husband Jim; I have my daughter Hannah
Rodgers, my stepdaughter Maggie Pschandl, stepdaughter Jamie
Lajter, daughter Maggie Rodgers. I would say that Maggie and
Hannah are not unhappy about having to miss school this week.
And I don't know if they're more happy about, or more excited
about being here today or being able to attend the World Cup
game on Sunday. I just told them they have to hold their cheers
until Sunday.
My long-term secretary, Kathy Rock, and her husband Bob.
They've come all the way from Pensacola. My mother, Jane
Hubbard, and my uncle, John Morris, who I know my father, who's
deceased, is pleased to have my Uncle John here today in his
place. My sister, BJ Greer, from Pensacola; and my dearest and
closest friend, Susan Fisher, who resides here in the
Washington area with her husband and children.
And I want to tell them that I am very grateful to all of
them for being here, and grateful for all their support. And
thank you.
[The biographical information of Judge Rodgers follows:]
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Senator Cornyn. Thank you, Judge Rodgers, and thanks to
each of you for being here and supporting Judge Rodgers on this
important day. I could tell you from my experience, even though
I have never been a Article III judge, I was a State district
judge and a member of the Texas Supreme Court for a period of
13 years in my previous life, and it is important on occasions
like this to have those who are near and dear to you here for
support, and we are delighted to have you here.
At this time, Mr. Titus, I would be glad to hear any
opening comments you might have to make.
STATEMENT OF ROGER W. TITUS, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MARYLAND
Mr. Titus. Thank you, Mr. Chairman. I first wanted to thank
my Home State Senators Sarbanes and Mikulski for their very
generous remarks. I thought I was at a funeral listening to me
being praised.
Senator Cornyn. They were awfully nice, I noticed.
Mr. Titus. But it's wonderful to have their support and
encouragement as I go through this quest.
I don't have an opening statement, either, but I did want
to remark on one thing that Senator Mikulski reported to you
about me being an electrical engineering student, as by way of
introducing my family--and by way of explaining to you how I've
done my best to increase the population of the legal
profession.
I was indeed an electrical engineering student at Johns
Hopkins, struggling in that subject with my fellow electrical
engineering student, Michael Bloomberg, who was my fraternity
brother. And two things happened in 1961: I changed majors, to
political science; and I eloped with the daughter of a lawyer.
I don't recommend that as the way to meet your first lawyer--
that's the first lawyer I ever knew. Since that time, however,
I've worked hard to populate the legal profession, as you will
hear from my introductions.
The woman I eloped with, Cathie Titus, is right here, my
wife. My daughter Paula, a lawyer, is with me. Her husband
Felix is not able to be here today. He's not a lawyer, but he
just was appointed by Governor Ehrlich to the Trial Court
Nominating Commission for Montgomery County to select judges.
My son Richard is here, also a lawyer. His wife Marlene is
here, and she's also a lawyer. We have one person who kept the
whole group honest, my son Mark, who's an educator. He's here.
I have four grandchildren. They're not in law school yet.
My oldest grandson is Benjamin Laboy; his sister Grace Laboy;
my granddaughter Emily Titus; and my grandson Drew Titus.
I also have a nephew who's attending American University
who's here, Kevin Gaughan. And lo and behold, I have a dentist
of mine that retired. And I guess he has nothing better to do.
He's shown up here today to watch me. This is the man who's
known my mouth in special ways--Melvin Slann is in the back
there.
Senator Cornyn. That is dedication and friendship
personified.
Mr. Titus. And finally, I wanted you to know that seated in
the audience is Reggie Felton, who is a member of the Board of
Education of Montgomery County, which is one of my clients.
And I have nothing further to say.
[The biographical information of Mr. Titus follows:]
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Senator Cornyn. Thank you. One of the things, being elected
from the State of Texas, I don't talk about an awful lot, but I
am a product of Montgomery County schools, at least for a
period of my growing up and my dad was stationed at Walter Reed
Army Medical Center, and we lived in Kensington, Maryland. But
we are delighted to have all of you here today. Thank you for
being here to support soon-to-be Judge Titus.
Mr. Miller, we would be glad to hear any comments or
introductions you might have to make.
STATEMENT OF GEORGE W. MILLER, NOMINEE FOR THE UNITED STATES
COURT OF FEDERAL CLAIMS
Mr. Miller. Thank you very much, Senator Cornyn.
I first of all want to say that I am deeply gratified by
the nomination by President Bush. And I've always believed that
the highest calling of a lawyer is to be a judge. And I take
this opportunity very seriously and look forward to, hopefully,
making a positive contribution to the administration of justice
on the Court of Federal Claims.
I want also to thank the Committee for scheduling the
hearing as promptly as it did. That has not always been the
case in these matters. I know I, and I think the others who are
here today share my view that it is everything we could have
asked for in terms of expeditious consideration, and we
appreciate it greatly.
You have already met, through Senator Allen, my wife Kay,
who is here, and my son George, who is also here. I'd like to
introduce two other friends and colleagues who are here. The
first is Austin Mittler, who is my law partner and mentor, has
been with Hogan & Hartson since 1968, even longer than I, and
has for many years been the head of our litigation practice
group.
And with him is Steven L. Simrodt, a law school classmate
of mine and long-time friend, who lives and works on Capitol
Hill. So it was easy for him to come over, and I appreciate
greatly his presence.
Our daughter, who lives in Austin, Texas, was not able to
be with us this morning, but I hope she's listening on the
Internet. And our son Bill, who is in his third year at
Vanderbilt University Law School, was also not able to be here
this morning. I hope he's studying hard, as I have every reason
to believe that he is.
And obviously, I want to make appropriate thanks to Senator
Allen for his very gracious remarks, and for Senator Warner and
the help and assistance that I've received from the members of
the staffs of both of the Senators from Virginia.
I have no opening statement other than those remarks.
[The biographical information of Mr. Miller follows:]
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Senator Cornyn. Thank you very much, Mr. Miller.
I am happy to have been joined by my colleague Larry Craig.
And Senator Craig, if you have any comments at this point
before we launch into the questions, I would be glad to
recognize you for that purpose.
Senator Craig. I have no questions, thank you very much,
Mr. Chairman. I am here to listen and to get to know these
three nominees better.
Senator Cornyn. Excellent. We are glad you could be here in
person.
Well, let me just launch into a few questions here, if we
may. First, Judge Rodgers, there was comment made about your
experience as a magistrate judge, and I wonder if you could
tell the Committee a little bit about your experience in that
capacity--the kinds of cases you have heard, kinds of
responsibilities that you have assumed and discharged as a
Federal magistrate judge.
Judge Rodgers. All right. Thank you, Mr. Chairman. If I
might, before I embark on answering your question, I was remiss
in not thanking Senator Bob Graham as well earlier. Senator
Graham has submitted comments for the record, and I am deeply
grateful to him for that and, again, was remiss earlier in not
mentioning that.
Senator Cornyn. We will certainly make those, as we will
all other written comments made by Senators, as part of the
record. Thank you for remembering that.
Judge Rodgers. Thank you.
The last 16 or so months have been probably the most
rewarding in my career, and that's the time that I have been
serving as a magistrate judge on the United States District
Court for the Northern District of Florida. This position has,
in my opinion and in my experience, been invaluable to me, and
I think it will prove to be invaluable if I am fortunate enough
to be confirmed by the Senate.
As far as day-to-day responsibilities as a magistrate, I
now perform many of the same or similar type of duties that the
district court judges on our court perform. In our district,
magistrate judges are fully utilized. And what I mean by that
is they have both a civil and a criminal docket. They manage
both.
On the criminal side, I handle all felony initial
appearance proceedings, beginning with, again, the initial
appearance, the arraignment, detention hearings, which are of
course evidentiary hearings. I do on occasion accept pleas in
felony cases. That is done on a report and recommendation basis
to the district court.
We also have a very large misdemeanor docket in the
Northern District of Florida due to the number of military
facilities that we have in our area, as well as National
Seashore areas. On the misdemeanor side of the docket, I handle
the case from the inception all the way through the trial,
through sentencings, and I will add that, as part of that, I do
on occasion apply the Sentencing Guidelines in Class A
misdemeanor cases. So I have some familiarity with the
Sentencing Guidelines, which I think will prove useful to me
down the road if I am confirmed.
I also handle violation of probation hearings, as well as,
again, sentencings, and handle matters pertaining to the grand
jury as a magistrate.
On the civil side of the docket, our duties are vast. And I
would add that on the Northern District of Florida, our docket
is approximately 90 percent civil. Over half of that docket is
made up of cases that the magistrates handle on a day-to-day
basis, those cases being Social Security cases, habeas corpus
matters, petitions and motions, as well as prisoners' civil
rights cases. And I handle those cases on report and
recommendation to the district court judges.
We also handle all of the civil discovery matters as
magistrates on our district court, which, as you can imagine,
keeps us very busy and requires a good command of the Federal
Rules of Civil Procedure, which, again, I think will prove
useful down the road if I am confirmed.
The, I guess, more of a subjective benefit of having served
as a magistrate is that it has allowed me to develop a certain
judicial temperament. I enjoy my time in the courtroom as well
as outside the courtroom, but I do believe that the time that
I've spent in the courtroom as a magistrate judge has been
invaluable to me and will prove to be so down the road.
I think it has taught me a lot about respect for the
litigants that come into the courtroom. As a district court
judge, I'm the first--excuse me, as a magistrate judge, I am
the, really, the first person that they see and hear from in
the courtroom, and I feel that I represent the court. And as a
district court judge, if I'm confirmed, I feel the same way,
that I would have a duty and a responsibility to ensure that
the litigants are treated fairly, respectfully, courteously.
And not just the litigants, but the attorneys as well, the
jurors, and every member of the public that comes into the
courthouse, because it is a public forum.
But in short, I think that the time that I've spent as a
magistrate has been invaluable, and I think would prove to be
invaluable down the road if I'm fortunate enough to be
confirmed.
Thank you.
Senator Cornyn. Thank you very much.
Mr. Titus, during your introduction, I was--one of the
things that you have done or the honors that you have received
caught my attention, in particular being admitted to the
American College of Trial Lawyers, which I know is reserved,
really, for people at the top of their profession, people who
represent clients in courtrooms. And you, of course, having
spent a lot of time in the courtroom as a lawyer, I know, in
all likelihood, share my concern that there are a lot of people
who can't afford to resolve their differences in a courtroom
because of the cost. Particularly we are talking about civil
cases. We know indigents who are charged with crimes can get
court-appointed lawyers. But also the delay that seems to be
built in too often in our civil litigation system precludes
many people from seeking resolution of their disputes in a
court of law.
And I wondered what thoughts you might have about either
case management techniques of alternative dispute resolution or
other similar techniques you might be able to use to make sure
that more people have access to the courts, and not less.
Mr. Titus. Thank you, Mr. Chairman.
One of the activities that I've been engaged in since 1989
is being a member of the--the full long name for it is the
Standing Committee on Rules of Practice and Procedure of the
Court of Appeals of Maryland. We call it the rules committee.
It's a tongue-twister.
Since I've been on that committee, I was, among others,
given the chairmanship of the management of litigation
subcommittee. And one of the concerns of that Committee is to
address the very type of thing that you're mentioning now.
While I was chairman, we came up with a mandatory requirement
for all circuit courts in our State to have differentiated case
management plans, so that a complex case would be on one type
of a track and a very simple case would be on a very simpler
track.
That has worked very well, because it means that a case
that should be inexpensive to litigate ends up on a rather
quick, short track for discovery and pre-trial and so forth.
Another aspect of it is that there are mandatory conferences
with the presiding judge early in the case, to discuss such
things as discovery planning, but most importantly, to talk
about the alternatives for resolving the matter without having
to go through the full-blown process of preparing for and
conducting an actual trial. So it provides for--and I've been
sometimes disappointed that it hasn't been implemented as well
as I'd like--but it provides for the possibility of early
intervention by mediation.
In the Federal court to which I've been appointed,
significant use is made of the magistrate judges to conduct
mediations. And I've participated in a number of them, and they
do an extraordinarily good job of helping the parties identify
a solution to their case, that is, not necessarily one that's
going to be hammered out in a courtroom with uncertain results
and possibly high costs.
So those are obvious concerns to me, and that's how I've
acted on them in the past.
Senator Cornyn. Thank you very much. I think it was Ambrose
Bierce who defined litigation as something to which you go in--
or people who resolved their disputes through basically a
sausage-grinding process. And he said it more artfully than I
can remember right now, but essentially sometimes it is hard,
through the litigation process, to identify the winner from the
loser; both of them are so battered and bruised and depleted
during the process. So I am glad to hear of your commitment to
differentiated case management land alternative dispute
resolution.
Mr. Miller, you are also an advocate of the use of
alternative dispute resolution. Can you talk a little bit about
your ideas about how those ADR techniques can be used to
resolve disputes that will be pending before the U.S. Federal
Court of Claims?
Mr. Miller. Thank you, Senator Cornyn.
I, as Senator Allen mentioned, have been a member of the
Advisory Council of the Court of Federal Claims for the past 9
years. And one of the things which the Court of Federal Claims
has itself done very recently is to establish a pilot program
seeking to utilize alternative dispute resolution techniques
more aggressively to try to settle cases that should be settled
at an early point in the proceedings.
My own experience in that regard has been that there is no
substitute for judicial involvement at a point in time,
hopefully when the parties have conducted some discovery, know
what the facts of the case are, and the parties would benefit
from a neutral evaluation by a judge who can share with the
parties what his reaction might be if he were confronted with
the particular facts and circumstances. And the Court of
Federal Claims ADR pilot program seeks to utilize so-called
settlement judges for that purpose.
And I would hope that that pilot program will be expanded--
modified as appropriate, given the court's experience with the
pilot program--but expanded to be even more widely utilized in
the Court of Federal Claims. I think that there has been a lot
of progress in that regard to date in that court, and my
impression is that the judges are very interested in expanding
the reach of the ADR pilot program, which I support.
Senator Cornyn. Senator Leahy, the Ranking Member of the
Judiciary Committee, is unable to be here in person but has
sent a written statement which will be made, without objection,
part of the record.
Mr. Miller, tell me, for those who may not be as familiar
as you are with the work of the United States Court of Federal
Claims, what you consider to be the greatest challenges that
confront that court.
Mr. Miller. Senator Cornyn, I think one of the greatest
challenges confronting that court is ensuring the expeditious
decision of cases. There was a time, I think, when
practitioners generally regarded the Court of Claims, as it was
then known, as a forum in which it could take a long time to
get a decision. I was a member of a litigation practice reform
task force in 1996, which studied that issue, made some
recommendations. And my own experience is that, as a result of
that activity and of the work of the Advisory Council, the
Board of Governors of the Bar Association of the Court of
Federal Claims, and the active participation of the judges of
the Court of Federal Claims, that the court has come a long
distance from the era when it was, I think, widely regarded as
too slow in rendering decisions. And I think, at this point in
time, that perception among the members of the bar has
generally changed, and the court is in fact must more, in my
judgment, conscious of the need to render its decisions quickly
as well as well. And I think continuing that trend is one of
the most significant challenges facing the court.
Senator Cornyn. Are there case-disposition standards that
exist for that court? And how is the court doing in terms of
meeting those standards, if they exist?
Mr. Miller. It is my understanding, Senator, that the court
has an internal operating rule or procedure which contemplates,
as I understand it, that within 30 days of the filing of the
last brief or the conclusion of the hearing, the matter is set
for argument. Argument, in turn, is set within 60 days of the
last brief or conclusion of the hearing, and decision is
rendered within 30 days of argument; therefore, within 90 days
of the conclusion of the trial proceedings.
My impression is that the court is generally adhering to
that guideline. Now obviously there are cases which for one
reason or another should be stayed pending, perhaps, a decision
of the Court of Appeals for the Federal Circuit which may
resolve the case or to permit the parties to arrive at an
amicable resolution. But I think in principle that is the
timetable which the court has internally set for itself. And as
an outside observer, it is my impression that the court adheres
to that timetable in most of the cases that come before it and
are not otherwise candidates for some sort of delay.
Senator Cornyn. Thank you.
As each of you know, judges are not legislators. And
sometimes a judge is confronted with a legal precedent, or
maybe even a statute, which directs a result that they may not
personally agree with or be happy with. Of course, the United
States Supreme Court precedents are binding on all lower
Federal courts, and circuit court precedents are binding on the
district courts. I would like to hear a little bit from each of
you--perhaps, Ms. Rodgers, starting with you--about your
observations with regard to the duty of a United States Federal
district judge to follow precedents of higher courts and the
statutes passed by Congress in the event that they aren't
unconstitutional.
Judge Rodgers. Thank you, Mr. Senator, Mr. Chairman.
If I am fortunate enough to be confirmed, my judicial
philosophy as a district court judge would be one of respect
for the limited powers of the district court, and also respect
for the separation of powers. If I'm confirmed, I would leave
the matter of law-making and legislating to the Congress, where
it rightfully belongs. I wouldn't have any problem doing that
whatsoever.
Senator Cornyn. What is your approach to a--let's say the
United States Supreme Court has not passed on an issue that you
need to decide. Where would you look for guidance, and how
would you arrive at a decision absent a clear precedent or a
clear statute?
Judge Rodgers. Well, the first place I would look would be
to the law or precedent of our circuit, which would be the 11th
Circuit Court of Appeals. In the absence of any guiding
precedent in that circuit, I would most probably look to
circuit court decisions in other circuits that might be
analogous to the facts before me or the legal issues before me.
In the absence of any guidance, or persuasive guidance, from
other circuits, I would, in reviewing Federal legislation, I
would first afford the statute a presumption of
constitutionality. From there, I would apply statutory rules
and principles of construction to try to arrive at the
statute's meaning. And in the event the statute was not clear
or there was some ambiguity there, I would rely on legislative
history to guide me in determining the statute's meaning.
Senator Cornyn. Mr. Titus, do you agree that occasionally
judges have to make decisions that are unpopular or perhaps may
not even be consistent with their own personal preferences
because precedent, faithful application of precedent or a
statute requires it?
Mr. Titus. Thank you, Mr. Chairman. I don't think there's
any question but that a judge's personal views are irrelevant.
When it comes to a case that comes before a judge that has a
controlling precedent or a statute that dictates the result,
you have to follow it.
I have been an advocate for people who I didn't like or
whose views I didn't like, and that's the nature of the
advocate's job. Your job is to be the advocate. And a judge is
in the same situation. You bury your personal feelings and you
follow the precedent, follow what the law is.
Senator Cornyn. Are you saying that the role of an advocate
is represent the client faithfully without regard to whether
you like the client or even agree with their legal arguments?
Mr. Titus. That's what the Code of Professional
Responsibility says--zealously represent the client to the best
of my ability.
Senator Cornyn. And what should we glean from, let's say,
for example, the kinds of cases that you have handled and maybe
the kinds of positions that you have taken as an advocate on
behalf of a client, what should we glean from that in terms of
your ability to perform the duties of a United States Federal
district judge. Is it relevant at all?
Mr. Titus. Well, I have been involved in cases where the
positions I took were not necessarily popular. One of those was
mentioned by Senator Mikulski. I mean, I was having people
booing at me and everything else trying to get an
administrative headquarters for an organization to provide
medical care for the homeless. But I had a client and I had a
job to do, and we got the job done.
Senator Cornyn. Does that have any bearing, do you think,
on how you will regard such cases, or other cases, as a judge?
I guess what I am trying to get at--I am not asking the
question very well--but what the difference in the role is
between that of an advocate and that of a judge, and what
relevance your conduct as an advocate should have in terms of
our consideration of whether you should be confirmed as a
judge.
Mr. Titus. Well, what I'm trying to say is I feel very
comfortable with the constraints that are upon a judge to
follow precedent, to make decisions that may not be popular but
which are bound by--are controlled by precedent or by statute.
And I was simply trying to draw an analogy to the fact that
lawyers, as advocates, frequently have to advocate positions
with which they may not personally agree but which is in the
interest of the client to advocate. And I'm comfortable with
making that transition and keeping my own personal views,
whatever they may be, not in the forefront of any decision
making as a jurist.
Senator Cornyn. Thank you.
Mr. Miller, would you comment on those same questions?
Mr. Miller. Well, I think I have actually little to add to
the comments of Judge Rodgers and Mr. Titus. I would say that I
think the first task, actually both of the advocate and, I
think, of the judge, is to, having ascertained the relevant
facts, look up the law. And just as the advocate seeks to
marshall precedents in support of his client's position, so, it
seems to me, the judge, in analyzing the existing law and
relevant authority, is seeking to find out, at least initially,
if it's possible to do so, what the law is. And having
ascertained that, assuming he is able to do so, that in turn
sets the course that the judge necessarily is on to make a
decision, regardless of what his personal views of what might
be good policy in the circumstances might be.
Senator Cornyn. Thank you very much.
Well, I want to thank each of you for being here today to
answer a few questions in addition to the multitude of
questions you have already answered to even get to this point,
and to congratulate you and your families on your nomination.
It is my hope that your nominations will be voted out of the
Committee quickly and that you will be speedily confirmed by
the United States Senate. I think your record, your answers to
these questions and others have shown not only your
qualification for the office to which you have been nominated,
but your temperament is appropriate to that job, and your
approach to the unique role of judging in our legal system
commends itself toward your confirmation.
There may be other questions that will be tendered to you
in writing by members of the Committee. That is their right.
And we will hold the record open for that purpose.
But with that, this hearing today will be concluded. And
thank you again for being here.
[Whereupon, at 11:00 a.m., the Committee was adjourned.]
[Questions and answers follow.]
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NOMINATION OF DORA L. IRIZARRY, OF NEW YORK, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
----------
WEDNESDAY, OCTOBER 1, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Kyl, Schumer, and Durbin.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Senator Kyl. This hearing will come to order.
The agenda of the Senate Judiciary Committee this morning
is to hear from a candidate for Federal district court and
witnesses in connection with her nomination. The candidate is
Dora Irizarry. She is a candidate for the United States
District Judge for the Eastern District of New York, and she is
going to be introduced this morning by the Senator from New
York, who I will turn to in just one moment.
Let me explain for those of you in the audience. As is
frequently the case, the Members of the Senate are each
supposed to be in four different places as of 10 o'clock, so we
are going to take turns here in conducting this hearing. I want
to make two points.
First of all, the fact that not everybody is up here does
not mean that we do not care or that we will not all review the
record and talk to the people who are here in moving the
nomination forward or dealing with the nomination. And,
secondly, therefore, the failure of a lot of members to cross-
examine and quiz and ask a lot of questions and so on does not
denote lack of interest. That interest will be certainly
revealed as the nominee proceeds through the process and we
have additional hearings. But for this hearing this morning, I
regret to say there may be some lack of attendance from time to
time, and I just do not want any of you to take that as a lack
of respect for this nominee or for the process. It certainly
does not represent that at all.
Now, I know that Senator Schumer--at least I believe
Senator Schumer would like to introduce the nominee, and,
therefore, let me call upon the Senator from New York.
PRESENTATION OF DORA L. IRIZARRY, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF NEW YORK, BY HON. CHARLES E.
SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I very much
appreciate the opportunity not only to be here today and serve
on this Committee, but particularly to introduce our nominee,
Dora Irizarry, to the Federal Court for the Eastern District of
New York, which represents four counties that have a population
of 7 million people, including my home county of Brooklyn. And
our nominee is from Brooklyn as well.
Now, I just want to say before I begin, Senator Clinton
would have been here as well but had prior scheduling, as the
Chairman said. At 10:00 in the morning, we are supposed to be
in four places at once, but she wanted to convey her support
for the nominee as well.
Also, I would say that Judge Irizarry's parents and son,
Justin, could not be here today, but I know they are very proud
of Dora's accomplishment. And I would also note just for the
record, a sign of our times, her sister and brother-in-law
could not be here either. Judge Irizarry's sister is an Army
civilian and her brother-in-law is an enlisted man, and they
both are stationed in Fort Buchanan in Puerto Rico. So I want
to congratulate them, wish them well, and thank them for the
service to our country.
Now, coming here today to introduce Judge Irizarry is a--
excuse me--is a particular pleasure for me. So pleasurable that
I am overcome here today.
[Laughter.]
Senator Schumer. It is a particular pleasure for me because
her nomination is an example, Mr. Chairman, of what happens
when the process works right. We are filling all of the
vacancies on New York's Federal courts with nominees who have
bipartisan support. All of the relevant parties, myself and
Senator Clinton, Governor Pataki, and the White House, are not
only comfortable supporting all of the judges we put on the
Federal bench, but we believe each of them will do the Nation a
credit as members of the Judiciary.
The Committee is familiar with the judge's biography, so I
am just going to touch on a couple of highlights.
She was born in Puerto Rico but raised in New York, and she
graduated from one of the best high schools not only in New
York City but in the country, and that is the Bronx High School
of Science, which you have to take a test to pass and it is
very hard to get in.
From there she went to Yale College--not bad--and Columbia
Law School--excellent; my brother went there--before embarking
on a 16-year distinguished career as a New York prosecutor. She
was appointed to the New York City Criminal Court by Mayor
Giuliani and then to the Court of Claims by Governor Pataki.
She left the bench a few years ago, ran for public office, and
has been in private practice since.
Now, as the Committee knows, because I talk about this all
the time--and I also want to welcome so many guests from New
York who are here today. I want to thank them all for being
here, including--we have some judges who are here, we have some
members of the bar, some members who have been very active in
the Latino legal community, and just friends of the judge. And
they fill the room, and I want to welcome everyone here. For
fear of offending anyone, I will not single anybody out, except
there is one person I served in the Assembly with in 1974 when
I was first elected to the Assembly at the young age of 23, and
that is Judge Michael Pesce, my friend who serves on the
Brooklyn Supreme Court. But I will not tell them what we talked
about--well, can I? Jon would appreciate it. No? All right. I
will tell him privately. In any case, so I welcome everybody
here.
Now, you may not be familiar, but the Committee knows,
because I talk about this a lot. I have three standards when I
help select judges in New York and when I vote on judges here
in Washington. And they are these: excellence, moderation, and
diversity.
Excellence: A judge should be legally excellent. The
Federal courts have awesome power, and we do not want someone's
brother-in-law or political hack. We want the best.
Moderation: I do not like judges too far right. You know
that, Mr. Chairman. I also do not like judges too far left and,
in fact, on my legal Committee have knocked out a number of
people who the Committee thought highly of because I thought
they were ideologues of the left. And I think ideologues,
whether they be of the far right or the far left, want to make
law. And the Founding Fathers wanted people to interpret the
law. Nothing against these ideologues. They care passionately.
But when you care so passionately about something, it is sort
of harder to just interpret law rather than make it.
And my third qualification is diversity. I do not think the
bench should just be white males. Obviously, that is an
important standard as well.
Well, Judge Irizarry clears the bar on all three. First,
her background shows good, excellent training and experience,
and she has had an excellent record. I was impressed by her
background. But when I met with her--I had read her biography--
I was very impressed, Mr. Chairman, with her legal knowledge
and with her candor. There was no trying to beat around the
bush, figure out what I wanted to hear and then say it. She
said what she thought. She also had a great grasp of things.
I always ask nominees: What are some opinions that you are
critical of by the Supreme Court or other? And she gave two
really thoughtful opinions, not the kind of thing you would see
that she was critical of. One she was critical of from the
right; one she was critical of from the left. But really
thoughtful and impressive.
Now, I know that the ABA has found her not qualified, but
their concerns are not based on her legal knowledge or her
intellectual ability. Everybody gives her high marks on those.
Rather, the ABA's concerns regard the standard of temperament
from the bench. And I asked Judge Irizarry about these concerns
when she came to be interviewed by me. Her answers were quite
persuasive. While she suggested the concerns may have been a
bit exaggerated in some instances, she did not duck it. She
took full responsibility for the temperament concerns,
discussed candidly the growing she has done since then, and
expressed a genuine commitment to ensuring that these concerns
do not follow her to the bench.
As my colleagues know, when a red flag is raised regarding
a judicial nominee, I believe the burden is on him or her to
demonstrate that he or she deserves lifetime appointment to a
powerful post of Federal judge. In my opinion, Judge Irizarry
has carried that burden and carried it well.
I am proud to support her nomination, proud to commend her
to my colleagues on the Committee, and look forward to her
swift confirmation by the full Senate.
Thank you, Mr. Chairman.
Senator Kyl. Thank you very much, Senator Schumer.
Senator Hatch had an opening statement, which detailed much
of the information that you raised, and I am going to insert
that in the record rather than take the time to read it here.
But I did want all of you who traveled to be here today to know
of Senator Hatch's strong support for the nominee and his
conclusion, much the same as Senator Schumer has expressed
himself, as well as a recitation of Judge Irizarry's record.
And so that will be made a part of the record.
Senator Schumer. Mr. Chairman, I would just ask unanimous
consent that Senator Leahy, who is the ranking Democrat on the
Committee, also in support of the judge's nomination, that his
full statement be added to the record.
Senator Kyl. Without objection, it will be included in the
record.
Now, Judge Irizarry, if you would take the dais, and I
think I am going to ask you, first of all, if you would like to
introduce members of your family who are here.
Judge Irizarry. Thank you very much. Good morning to
everyone, and good morning, Mr. Chairman. Good morning, Senator
Schumer. I thank you very much for your continued and
unwavering support and for that very generous and kind
introduction.
If you would just bear with me, please, I would like to
make special note of some people who did come a long way to be
here with me today:
The Honorable Michael Pesce, who is the Presiding Justice
of the Appellate Term in New York State Supreme Court for the
Second and the Eleventh Districts, which covers part of the
Eastern District of New York.
The Honorable Lewis L. Douglass, Justice of the Supreme
Court of the State of New York, who sits in Brooklyn Supreme
Court and is also the Chair of the Franklin H. Williams
Commission on Minorities in the Courts.
And James Castro-Blanco, immediate past president of the
Puerto Rican Bar Association and also a member of the Mayor's
Committee on Judicial Nominations.
As Senator Schumer noted, my son, Justin, could not be
here. He is in school in Idaho, and they are finishing up the
term. So it was a little difficult for him to be here today.
And my parents are a little elderly, and it was difficult for
them to travel from Puerto Rico. And you have heard about my
sister, Rosario, and Gilbert Marrero, and they are serving
their country with the Army, and it was difficult for them to
get away. And they are stationed in Puerto Rico.
And I do not want to disrespect all of the people who came
here today. There are too many names to mention. But I do want
to make special note of certain individuals who are here today:
Manuel Romero, who is president-elect of the Brooklyn Bar
Association; Dolly Caraballo, who is the current president of
the Puerto Rican Bar Association; Telesforo DelValle, Jr., who
is here with his wife, Claudia; and he is past president of the
Puerto Rican Bar Association, past president of the New York
Region Hispanic National Bar Association, past vice president
of the New York State Criminal Trial Lawyers Association, and
has sat on many judicial nominating committees; Honorable
Francois Rivera from New York State Supreme Court sitting in
Brooklyn; Honorable Ariel Belen, Justice of the Supreme Court,
State of New York, sitting in Brooklyn, and is one of the
founders of the Cervantes Society, which is an umbrella
organization within the Office of Court Administration, which
joins together all Hispanic employees from the custodians to
the judges under one umbrella group. His daughter, Lauren, who
is 11 years old, is with us here today. And Fredric Newman, who
is partner of the firm that I am currently with, Hoguet,
Newman, and Regal, and I believe Judge Douglass' daughter is
here today with his grandson as well.
Thank you very much, Mr. Chairman, for the opportunity.
Senator Kyl. Well, thank you, and we welcome all of you to
this hearing and are delighted to have you here.
Now, may I swear you in? Would you raise your right hand
and affirm this oath? Do you swear that the testimony you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Irizarry. I do so swear.
Senator Kyl. Thank you. Now, Judge, let me ask you if you
would like to give an opening statement, and then members of
the Committee can refer questions to you.
STATEMENT OF DORA L. IRIZARRY, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF NEW YORK
Judge Irizarry. Thank you for the opportunity to make an
opening statement, but I think that I will waive that at this
time.
Thank you.
[The biographical information follows:]
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Senator Kyl. All right. Let me just ask you one or two pro
forma questions. You have dealt with these in your
questionnaire to the Committee, but the question that most
members want to be sure has been affirmed in oral testimony is
the question of how you would approach decisionmaking and what
you would base your decisions on as a judge. As you know, there
has been some political contention here about confirmation of
judges, and I think the first thing we always want to know or
to hear from you is precisely how you would approach the issue
of judging, of making decisions?
Judge Irizarry. Thank you for asking that question. It is
an important question. I would follow the law, the case law as
set forth by the United States Supreme Court and, of course, by
the court of my circuit, the Second Circuit, and, of course,
follow the Constitution of the United States. It is the role to
follow the precedent as set forth by those courts and by the
Constitution.
Senator Kyl. And occasionally there are cases of first
impression, or at least counsel argue that there are cases of
first impression and you have to sometimes go beyond what is
clear precedent. In those cases, how would you approach the
decisionmaking?
Judge Irizarry. Well, I would certainly go to the statute.
There is usually a relevant statute that is of concern, whether
it's procedural or substantive. And if the meaning is not
plain, then certainly I would go to the legislative history and
look at what the legislative intent was, and certainly the
intent of Congress should be given deference in that regard.
Senator Kyl. To the extent that you can divine the
intentions of 100 people who on any given day can be at least
on two sides of any particular issue, good luck when you have
to do that.
[Laughter.]
Senator Kyl. Maybe with that I should turn to my colleague,
Senator Schumer, and see if he has any questions. He probably
would want rebuttal time first.
Senator Schumer. No rebuttal time, Mr. Chairman. And we
work quite well together on many issues, and we disagree on
some, as he said.
I would say that it is probably a calm day in the Senate
when there are only two sides to the issue. But I have asked,
of course, Judge Irizarry many questions and thoroughly
reviewed her record, and I have no further questions here.
Senator Kyl. Thank you. Then let me just ask one last
question for you to make a comment on the record. There will be
testimony, as was noted, regarding the American Bar
Association's rating, and perhaps I should have mentioned that
we will have in our panels--the next panel will be Thomas
Hayward, Jr., Chair of the Standing Committee of the Federal
Judiciary, American Bar Association--we are very happy to have
him with us--and Pat Hynes, former Chair of the Standing
Committee on the Federal Judiciary, American Bar Association.
And then the final panel will consist of James Castro-Blanco
from New York, Hon. Lewis Douglass, and Hon. Michael Pesce, who
have all been previously introduced.
So let me just ask you if you would like to comment on the
issue of temperance that--judicial demeanor and temperance that
Senator Schumer alluded to, if you would like to say anything
about that before these other panelists are called forward.
Judge Irizarry. Thank you, Mr. Chairman. I am grateful for
the opportunity to address that issue. I'm grateful for this
hearing to have that opportunity.
Like the Committee, when the ABA set forth its finding or
the rating, I received the same letter that the Senate got,
which was one sentence just indicating what the rating was.
And, frankly, I had thought that the interview had gone rather
well, so I was a bit surprised at the rating.
Let me start by just saying this, what I believe is the
proper temperament of a judge, and certainly temperament is an
important aspect or element to be considered in determining
whether someone should be a judge or not. And temperament,
proper temperament and proper demeanor should be at the
forefront of any judge's thoughts anytime that he or she is in
the courtroom or out of the courtroom.
I believe that a judge should have the proper respect and
reverence for the law; a judge should be respectful of the
dignity of all who come before him or her and respectful of
their opportunity to be heard and give them that opportunity to
be heard. Everyone should have their day in court. It is
important for a judge to have a sense of justice and, most
importantly, for a judge to be fair, understanding, and
compassionate.
I believe that I have conducted myself in that manner, and
certainly I have always striven to achieve all of those goals
while I have been on the bench. And so I was, frankly, very
surprised to hear of these allegations because during the time
that I was sitting as a judge, I had never received any
complaints. I have always had the utmost confidence of my
superiors, who never seemed to hesitate to ask me to take over
in very difficult situations, including one incident I recall
in criminal court where there were 800 cases on the calendar,
we had wall-to-wall people outside and inside the courtroom.
This is in criminal court. And the judge who was sitting in
that part had had a problem with Legal Aid, and they had
stormed out in protest the day before and were refusing to
handle cases. And my supervisor asked me to please step in and
see if I couldn't take care of all of those people's cases. And
I did. I worked it out with the attorneys. I had a meeting with
everyone concerned--prosecutors and everyone from the defense
panel--and we were able, thank goodness, to dispense justice
efficiently and as quickly as possible and got everyone out by
6:30 in the evening.
And certainly those are very trying situations, and for
anyone who has not practiced in the courts of New York State,
and specifically in New York City, it's very hard to explain to
you what those courts are like. They are the busiest courts in
the country, particularly criminal court, where an average
calendar can run 150, 200 cases a day. And you have to do that
between 9:30 and 5 o'clock. You deal with maybe 50, 70
different lawyers. In Supreme Court, you can have a calendar
that can run up to 100 cases, and, again, you're dealing with
similar numbers of lawyers. Everyone comes with their own
agenda.
As a judge, my only agenda is to make sure that the cases
are handled properly, that everyone is heard. Sometimes you're
dealing with litigants who are mentally ill. In the criminal
term where I sat, sometimes you have defendants who are
violent. And so you have safety concerns for everyone in the
courtroom, including the attorneys as well.
And so you have lawyers who come in with their own agenda.
Sometimes--many times they are unprepared. They are late.
Everybody is rushing off. They also have many places to be at
the same time, so everyone is rushing. And very often they want
to take control of the courtroom.
And so it takes a very firm and tough judge to be able to
take control of the courtroom, and at the same time be mindful
that you have to be fair and you have to be just and you have
to be compassionate, and that the appropriate amount of time
has to be taken for each case to be able to handle it properly.
At times it means modulating the tone of your voice, and
certainly there could be some who could mistake that as yelling
or screaming. Everybody has a different opinion as to what is
yelling and what is screaming. And it may be that people are
unhappy with the ruling that I have made. In an adversarial
system, not everyone is going to be happy with the outcome.
So I am truly sorry to know that anyone felt offended, that
anyone might have been hurt by anything that I might have done
in the courtroom. Certainly that was not my intention. I firmly
believe that--in the 7 years that I sat on the bench, there was
a mellowing-out process that I went through and gradually sort
of learned what techniques kind of worked better. You learn to
be a bit more patient with attorneys who are brand new, and you
try to work within that framework and try to follow those kinds
of high, lofty goals that I just outlined for the Committee
with respect to what is appropriate judicial temperament.
Chairman Hatch. Well, thank you so much.
Senator Kyl. Might I just say thank you for that answer. I
think it was an explanation that needed to be on the record,
and it was well put. And as I announced earlier, we will be
doing some musical chairs, but you are now blessed to have the
Chairman of the Judiciary Committee presiding, and thank you
very much
Judge Irizarry. Thank you, Senator. Good morning, Mr.
Chairman.
Chairman Hatch. Good morning. We are happy to have you
here, and I have no questions for you. I understand they have
covered some of the questions that others may have. So with
that, we welcome you to the Committee, and we will complete
this hearing. Okay?
Judge Irizarry. Thank you very much. I thank you for this
opportunity.
Chairman Hatch. Thank you so much, Judge.
Our third panel will be Thomas Z. Hayward, Jr., the Chair
of the Standing Committee on the Federal Judiciary, the
American Bar Association, and Pat Hynes, the former Chair of
the Standing Committee on the Federal Judiciary, the American
Bar Association. We will be happy to take your testimony at
this time. We welcome both of you. We know that you have very
difficult jobs here and that it takes a lot of your time, but
it means a lot to the Bar Association and it means a lot to
this Committee.
We will turn to you, Mr. Hayward, and if you could limit
yourself to 5 minutes each, we would appreciate it, because I
am due down at Finance as well.
STATEMENTS OF THOMAS Z. HAYWARD, JR., CHAIR, STANDING COMMITTEE
ON FEDERAL JUDICIARY, AMERICAN BAR ASSOCIATION, WASHINGTON,
D.C., AND PATRICIA M. HYNES, FORMER CHAIR, STANDING COMMITTEE
ON FEDERAL JUDICIARY, AMERICAN BAR ASSOCIATION, WASHINGTON,
D.C.
Mr. Hayward. Thank you, Mr. Chairman and members of the
Committee. My name is Thomas Z. Hayward, Jr. I am a practicing
lawyer in Chicago, and I am Chair of the American Bar
Association's Standing Committee on Federal Judiciary. With me
today is Patricia Hynes, a former member and past Chair of the
Committee, and a circuit member for this investigation. We
appear here to present the views of the association on the
nomination of Dora Irizarry to be a United States District
Court Judge for the Eastern District of New York. After careful
investigation and consideration of her professional
qualifications, a majority of our Committee is of the opinion
that the nominee is not qualified for the appointment. A
minority found her to be qualified.
Before discussing the specifics of this case, I would like
to briefly review the committee's procedures so that you will
have a clear understanding of the process the Committee
followed in this investigation. A more detailed description of
the committee's procedures is contained in our committee's
booklet, ``Standing Committee on Federal Judiciary: What It Is
and How It Works.''
The American Bar Standing Committee investigates and
considers only the professional qualifications of a nomine: his
or her competence, integrity, and judicial temperament.
Ideological or political considerations are not taken into
account. Our processes and procedures are carefully structured
to produce a fair, thorough, and objective peer evaluation of
each nominee. A number of factors are investigated, including
intellectual capacity, judgment, writing and analytical
ability, industry, knowledge of the law, breadth of
professional experience, character, integrity, compassion,
courtesy, open-mindedness, patience, freedom from bias,
commitment to equal justice under the law, and general
reputation in the legal community.
The investigation is ordinarily assigned to the Committee
member residing in the judicial circuit in which the vacancy
exists, but it may be conducted by another Committee member or
former member. In the current case, Mrs. Hynes, in her capacity
as a former member, was asked to undertake this investigation
because the current member from the Second Circuit was already
undertaking another investigation.
The starting point of an investigation is the receipt of
the candidate's responses to the public portion of the Senate
Judiciary Committee questionnaire. These responses provide the
opportunity for the nominee to set forth his or her
qualifications--professional experience, significant cases
handled, major writings, and the like. The circuit member makes
extensive use of the questionnaire in the investigation. In
addition, the circuit member examines the legal writings of the
nominee and personally conducts extensive confidential
interviews with those likely to have information regarding the
integrity, professional competence, and judicial temperament of
the nominee, including, where pertinent, Federal and State
judges, practicing lawyers in both private and government
service, legal services and public interest lawyers,
representatives of professional legal organizations, and others
who are in a position to evaluate the nominee's integrity,
professional competence, and judicial temperament. This process
provides a unique peer review aspect to our investigation.
Interviews are conducted under the assurance of
confidentiality. If information adverse to the nominee is
discovered, the circuit member will advise the nominee of such
information if he or she can do so without breaching the
promise of confidentiality. During the person interview with
the nominee, the nominee is given a full opportunity to rebut
the adverse information and provide any additional information
bearing on it. If the nominee does not have the opportunity to
rebut certain adverse information because it cannot be
disclosed without breaching confidentiality, the investigator
will not use that information in writing the formal report and
the committee, therefore, will not consider those facts in its
evaluation.
Sometimes a clear pattern emerges in the interviews, and
the investigation can be briskly concluded. In other cases,
such as this one, conflicting evaluations over some aspect of
the nominee's professional qualifications may arise. In those
instances, the circuit member takes whatever further steps are
necessary to reach a fair and accurate assessment of the
nominee.
Upon completion of the investigation, the circuit member
then submits an informal report on the nominee to the Chair,
who reviews it for thoroughness. The circuit member then
prepares a formal investigative report, containing a
description of the candidate's background, summaries of all
interviews conducted, including the interview with the nominee,
and an evaluation of the candidate's professional
qualifications, which is then circulated to our entire 15-
member committee, together with the nominee's completed Senate
Judiciary questionnaire and copies of any other relevant
materials. After careful consideration of the formal report and
its enclosures, each member submits his or her vote to the
Chair, rating the nominee ``Well Qualified,'' ``Qualified,'' or
``Not Qualified.''
I would like to emphasize, Mr. Chairman, that an important
concern of the Committee in carrying out its function is
confidentiality. The Committee seeks information on a
confidential basis and assures its sources that their
identities and the information they provide will not be
revealed outside the committee, unless they consent to
disclosure or the information is so well known in the community
that it has been repeated to the Committee member by multiple
sources. It is the committee's experience that only by assuring
and maintaining such confidentiality can sources be persuaded
to provide full and candid information. However, we are also
alert to the potential for abuse of confidentiality. The
substance of adverse information is shared with the nominee,
who is given full opportunity to explain the matter and to
provide the additional information bearing on it. And as I
previously indicated, if the information cannot be shared, the
information will not be used by the Committee in reaching its
evaluation.
Now, turning to the investigation specifically of this
nominee, Judge Irizarry was nominated on April 28, 2003. Carol
Dinkins of Houston, Texas, who was then Chair of the Standing
Committee, and my predecessor, assigned Mrs. Hynes to the
investigation, as explained above. She began her investigation
shortly after receiving the nominee's May 23, 2003, responses
to the public portion of the Senate Judiciary Committee
questionnaire.
On July 9th, Mrs. Hynes prepared and submitted to Chair
Dinkins an informal report that presented the results of her
thorough investigation, including summaries of all of her
confidential interviews and a description of her interview with
the nominee. On July 11th, Mrs. Hynes' formal report was
transmitted to all members of the committee. Those who had
questions were encouraged to contact Mrs. Hynes directly. After
all Committee members had an opportunity to study the report
and the attachments, they reported to the Chair their votes on
the qualifications of the nominee. A majority of the Committee
found the nominee ``Not Qualified'' and a minority found her
``Qualified.'' This vote was reported to you on July 21, 2003.
With your indulgence, Mr. Chairman, I will now ask Mrs.
Hynes to describe her investigation of the nominee.
Chairman Hatch. Thank you so much, Mr. Hayward.
Ms. Hynes, we are happy to have you here.
Ms. Hynes. Good morning, Mr. Chairman. I appreciate the
opportunity to be here. My name is Patrician Hynes. I am a
trial lawyer from New York, and as Mr. Hayward indicated, I am
a former member of this Committee and a past Chair of this
committee. With that background, I was asked to undertake the
investigation of the qualifications of Dora Irizarry to be a
United States District Judge for the Eastern District of New
York.
During my membership on the committee, both as the Second
Circuit member and as Chair, I participated in numerous
investigations of potential and actual nominees to the U.S.
Courts of Appeals and to the U.S. District Courts. My
investigation of this nominee was conducted in the same manner
as all investigations by the Standing Committee are conducted,
as just explained by our Chair, Thomas Hayward.
My investigation was conducted over a two-and-a-half-month
period, during May, June, and July of this year. It included
approximately 70 confidential interviews, including more than
50 lawyers and 17 judges. During each conversation I inquired
how the person knew, if at all, the nominee and what the person
knew about the nominee's professional competence, judicial
temperament, and integrity that would bear on her
qualifications to serve as a United States district judge. I
also inquired if they knew any reason why the nominee was not
qualified to serve as a district court judge.
I made a particular effort to locate and speak to lawyers
who had had trials before this nominee because this nominee was
a sitting judge, and the best way to find out how a judge
conducts themselves is to ask lawyers who appear before that
judge. And Judge Irizarry sat in the criminal court in
Brooklyn. She also sat in the Supreme Court in Brooklyn, the
Supreme Court in Manhattan. For a short time at the beginning
of her career as a criminal court judge, she sat in the Bronx.
In addition to the interviews, I also reviewed other
materials, her questionnaire, decisions she had written. I also
met privately with Judge Irizarry in her office. And during the
course of our meeting, concerns that had been identified during
my investigation were discussed with Judge Irizarry, and she
was given an opportunity to rebut the adverse information and
provide any other additional information.
The majority of the lawyers that I interviewed raised
concerns about Judge Irizarry's temperament. These lawyers were
both prosecutors and defense lawyers from the three different
counties where she had sat as a judge, both on the criminal
court and the Supreme Court, being Bronx, Manhattan, and
Brooklyn. These comments by the lawyers who had appeared before
Judge Irizarry all had a starkly common theme and included
statements such as that Judge Irizarry was gratuitously rude,
abrasive, and demeaned attorneys; that she flew off the handle
in a rage for no apparent reason and would scream at attorneys;
that she was impatient and did not fully listen to legal
arguments and did not have a good grasp of the legal issues
presented to her; and that she took offense easily, was short-
tempered and volatile, and got angry when lawyers disagreed
with her; that she was rigid and dismissive and did not treat
lawyers with respect.
On the issue of judicial temperament, the committee's
background booklet states that ``in investigating judicial
temperament, the Committee considers the nominee's compassion,
decisiveness, open-mindedness, courtesy, patience, freedom from
bias and commitment to justice under the law.''
Our committee, in reviewing my report on the nominee, could
not and did not discount the number of complaints about the
nominee's temperament. Certainly some attorneys who appeared
before her have not encountered problems, but unfortunately
they do not adequately make up for the substantial number of
negative comments concerning her judicial temperament. The
breadth and depth of these negative comments signal a serious
control issue. If the investigation had disclosed that the
nominee's judicial temperament had improved over the years as
she acquired more experience, the Committee would not have
exhibited the same amount of concern. However, the concerned
comments about Judge Irizarry's lack of judicial temperament
appeared consistently until her resignation from the State
bench to run for political office.
The best judge in the world can have a bad day from time to
time, and a judge who is smart and trying to run a tight
courtroom will almost inevitably leave some of the lawyers or
litigants with a bad taste from time to time. But this
investigation and the information gathered goes beyond the
thesis that, occasionally, with a crowded docket and stressful
conditions, a judge may step over the line insofar as
temperament is concerned. After careful consideration of my
report, a major of the Committee was of the view that the
nominee is not qualified for the position. A minority of the
Committee found her to be qualified.
Our Committee takes most seriously its responsibility to
conduct an independent investigation of the professional
qualifications of judicial nominees. There is no bright-line
litmus test as to whether a nominee is or is not qualified. Our
recommendation is not the result of tallying the comments--pro
and con--about a particular nominee. Rather, in making our
evaluation, we draw upon our previous experience, the
information and knowledge we gain about the nominee during the
course of our investigation, and our independent judgment. I
must stress that we apply the same standards and criteria to
all nominees.
In my service on the committee--and I was a member of the
Committee for 5 years and a Chair for a year--I have either
conducted or reviewed literally hundreds of reports on judicial
nominees. And, unfortunately, I have never before experienced
such widespread and consistent negative comments about a
nominee's temperament.
I thank you for allowing us to share our views with the
committee.
Chairman Hatch. Well, thank you so much.
Senator Durbin, do you have any questions?
Senator Durbin. How frequently has the ABA come to this
conclusion about nominees?
Ms. Hynes. On the basis of temperament, Senator?
Senator Durbin. Yes.
Ms. Hynes. I have not gone back and done a history. I would
say infrequently. That I can say for certain.
Senator Durbin. Mr. Hayward, do you know?
Mr. Hayward. Yes, Senator. Contemplating that question, I
went back and checked, and it has been most infrequent. It goes
all the way back to before President Reagan was in office as
President of the United States.
Senator Durbin. That was the only other example you could
find?
Mr. Hayward. Yes, sir. There has been nothing since then.
Senator Durbin. I am wondering, Ms. Hynes. I found in my
experience, having run for political office and practiced law,
that full-time lawyers sometimes look down their noses at
people who get involved in political life, do not think they
are real lawyers. Did you notice in any of the reactions to
Judge Irizarry perhaps that feeling because she had chosen to
be a political candidate?
Ms. Hynes. Not at all, Senator. The comments that were made
by lawyers who appeared before her, these were lawyers who had
appeared before us long before she obviously resigned from the
bench. No one made any comment to me about her resignation to
run for office.
Senator Durbin. Did you try to screen out political bias
because she had been a declared Republican candidate for
Attorney General from her critics?
Ms. Hynes. Senator, I did not in my interviews discern any
concern with politics. There was no discussion of politics at
all. It was simply for the lawyers--they were lawyers who were
interviewed because they had dealt with appeals from Judge
Irizarry, and they were lawyers who appeared before her. Of the
lawyers who appeared before her, the temperament was the issue
that was discussed and volunteered from the get-go. In terms of
my placing a call, I did a lot of work to locate trials and
lawyers on both sides, prosecution and defense. And when I
would call and say, ``I am calling on behalf of the ABA about
Judge Irizarry,'' the first comments that were made by the
majority of the attorneys that I interviewed who had appeared
before her were discussions of her temperament.
Senator Durbin. I am sorry I was not here earlier, and this
may have been touched on. Did you look into whether any formal
complaints had been filed against her while she served as
judge?
Ms. Hynes. It is a requirement of our Committee that the
nominee provide to us a waiver whereby we can then inquire into
the various grievance committees of any jurisdictions where a
nominee may have been sitting. I did that, and what came back
is their form letter that said there is nothing in the public
files that indicates any, you know, complaints against this
nominee.
Senator Durbin. So how do you balance that between what
appears to be overwhelming and compelling evidence against her
on temperament, and yet when it comes to the actual evidence of
complaints filed, the file is empty?
Ms. Hynes. Senator, quite frankly, my take on that is that
lawyers do not view the grievance Committee procedure as a
vehicle--or may not view it as a vehicle to discuss a judge's
temperament. But it was certainly a situation where there was--
her reputation was widely known as someone who had a
temperament issue.
Senator Durbin. Well, I might say, Mr. Chairman, I think we
look at each nominee--at least I do--on three levels:
integrity, honesty, the question of legal skills, and I think
equally important is the question of temperament. It is
virtually impossible for us to judge in a snapshot experience
with a nominee what their temperament is. And this is a matter
of concern. I am glad that we held this hearing because, as Mr.
Hayward has indicated, this is an extraordinary finding. I am
going to look at it very carefully.
Thank you.
Chairman Hatch. Well, thank you so much, Senator.
I thank you both for your time and your effort to be here
and for your assistance to this Committee not just today but
through the years. We appreciate it.
Mr. Hayward. Thank you, Mr. Chairman. On behalf of all
members of the committee, we thank you for those comments.
Chairman Hatch. Thank you so much.
Ms. Hynes. Thank you, Senator.
Chairman Hatch. Thank you for being here.
[The prepared statement of Mr. Hayward and Ms. Hynes
appears as a submission for the record.]
Chairman Hatch. We will now turn to our fourth panel: James
F. Castro-Blanco, Esq., immediate past president of the Puerto
Rican Bar Association, from Shearman and Sterling in New York;
Hon. Lewis L. Douglass, Justice, New York State Supreme Court,
Chair of the Franklin H. Williams Commission on Minorities; and
Hon. Michael L. Pesce, Presiding Justice, Appellate Term, New
York State Supreme Court.
We are very honored to have the three of you here, and we
look forward to hearing your testimony. We will start with you,
Mr. Castro-Blanco.
STATEMENT OF JAMES F. CASTRO-BLANCO, IMMEDIATE PAST PRESIDENT,
PUERTO RICAN BAR ASSOCIATION, NEW YORK, NEW YORK
Mr. Castro-Blanco. Thank you, Mr. Chairman.
Chairman Hatch and members of the United States Senate
Committee on the Judiciary, thank you very much for giving me
this opportunity to testify supporting the nomination of Judge
Dora L. Irizarry to the position of United States District
Court Judge for the Eastern District of New York. My
recommendation is based upon my own experiences working with
Judge Irizarry as well as numerous conversations I have had
with many members of the legal community. As a former Assistant
United States Attorney in the Eastern District of New York, I
have had the opportunity to practice before some of the most
outstanding jurists in the Nation. Judge Irizarry would be an
excellent addition to that court. Her wisdom, compassion,
integrity, and love of the law will enable her to be an
extraordinary district court judge. I am confident that she
will serve with distinction.
I have the honor to serve on the New York City Mayor's
Advisory Committee on the Judiciary. In that role, I have
reviewed many judicial applications and interviewed many
candidates. The most important qualities I look for in a
candidate are integrity, proper judicial demeanor, knowledge of
the law, and a sense of compassion. Judge Irizarry possesses
all of these qualities in abundance.
During my tenure as president of the Puerto Rican Bar
Association, I worked extensively with Judge Irizarry to
increase opportunities for Hispanic attorneys and to provide
scholarship money for Hispanic law students. Her efforts in
this regard have been recognized by the Hispanic legal and
business communities. Her honors and awards, while too numerous
to list, evidence her service to the community and the esteem
in which she is held.
Earlier this year, the Board of Directors of the Puerto
Rican Bar Association voted to approve Judge Irizarry's
nomination to the district court. That decision was based upon
the board's review of Judge Irizarry's record and reputation.
Additionally, prior to the vote, members of the board who have
appeared before Judge Irizarry discussed the judge's ability to
effectively and respectfully run her courtroom. The board
agreed that she possesses the intellect and judicial demeanor
to be an outstanding district court judge.
My practice as a trial lawyer has been conducted solely in
the Federal courts. As a result, I have not had the opportunity
to appear before Judge Irizarry. My interactions with Judge
Irizarry have taken place through many community service-
related activities. Judge Irizarry and I have served as
panelists on law school forums. We have been speakers at Bar
Association functions and have worked closely organizing events
honoring prominent individuals who have made a positive impact
on our community.
I have observed Judge Irizarry interact with many
individuals in a variety of forums. Some of those individuals
have challenged her views on a variety of issues in a very
confrontational manner. She has always maintained her poise in
such situations and treated people respectfully even when that
courtesy was not returned. In my opinion, her demeanor on all
occasions during which I have observed her has been
professional and measured.
Judge Irizarry's career epitomizes the American dream. From
her humble beginnings in Puerto Rico and the projects of the
South Bronx, using her intellect and perseverance, she
graduated from Yale University and Columbia School of Law.
Forsaking a highly paid Wall Street career, she served as an
assistant district attorney and then as a judge of the New York
City Criminal Court and New York State Court of Claims. During
her career as a public servant, she continued to be a community
leader, mentor, and role model.
Judge Irizarry's generosity of spirit and fine character
are apparent from her interactions with all the people she
encounters. Her reputation among practitioners is that of a
fair and no-nonsense judge. She had led the kind of
multidimensional life that will allow her to mete out justice
in a thoughtful and fair way. It is my belief that Dora L.
Irizarry possesses all the qualities necessary to be an
extraordinary district judge. In short, her judgment,
intellect, and character set her apart. I am honored to have
been given the opportunity to speak in support of her
nomination, and I thank you.
Additionally, just one note. There is in New York State a
Commission on Judicial Conduct where attorneys can freely lodge
complaints against any judge.
[The prepared statement of Mr. Castro-Blanco appears as a
submission for the record.]
Chairman Hatch. Well, thank you. We appreciate having your
testimony.
Justice Douglass, honored to have you here. I look forward
to hearing from you.
STATEMENT OF HON. LEWIS L. DOUGLASS, JUSTICE, NEW YORK STATE
SUPREME COURT, AND CHAIR, NEW YORK STATE COMMISSION ON
MINORITIES
Justice Douglass. Thank you. I have with me my grandson,
E.J., because it is not every day that you can see your
grandfather testify before a United States Senate Committee.
Chairman Hatch. We welcome you, E.J. You are sitting
straight up. You are someday going to be a judge yourself, I
can just tell.
Justice Douglass. I am a Justice of the Supreme Court in
New York, and I am also chairperson of the New York Commission
on Minorities. That is a commission consisting of 21 judges and
lawyers appointed by the chief judge to develop programs to
improve the opportunities for minorities in our system and to
improve the perception of fairness in the system. We hold
meetings throughout the State and maintain an ongoing dialogue
with minority Bar Associations and develop training programs on
the issues of diversity for judges.
I met Judge Irizarry about 10 years ago, when we both were
judges appointed by the Governor to sit on a court called the
Court of Claims. Our assignments had nothing to do with claims.
It was an appointed court created to handle the overload of
felony prosecutions. We were all appointed to the Court of
Claims and then immediately assigned to the Supreme Court to
handle major felony prosecutions.
Judge Irizarry steadily gained a reputation among lawyers
as a superb judge. She did expect everyone who appeared before
her to adhere to the rules and to perform in a way that
enhanced the dignity of the court. She was, nevertheless, fair
and evenhanded.
Like many of us who grew up in inner cities, she believed
that when a person is found guilty, after a fair trial, it is
important that government, through the courts, make a strong
statement that criminal behavior is unacceptable and that
social circumstances are not an excuse for crime. In short, she
had a reputation as a tough but fair judge. While presiding
over these felony prosecutions, she took on young lawyers as
interns and became active in Bar Association activities and
eventually became president of the Hispanic Judges Association.
And I know that you know of her excellent academic background.
Let me turn to what I think is particularly unique and
important. We have done remarkable things in this country in
the past 50 years since the Supreme Court outlawed segregation
and moved us to a more opened society. Judge Irizarry's
appointment would be another confirmation of that achievement.
In the mid-1960's, her father worked as an electrician at the
Federal Building in lower Manhattan which housed the Federal
court. At that time, like other minorities, he worked on
Federal projects because minorities were not then readily
admitted into the unions. He, of course, admired Federal
judges, as we all did, and still do. The idea that his daughter
would someday stand before a Committee of the Congress for
consideration for appointment as a Federal judge would have at
that time been viewed as pure fantasy. But here we are
considering the appointment of Dora, now having graduated from
Yale and Columbia and having served as a State judge.
I tell you, it makes me feel good not only to endorse her
because of her scholarship and reputation as a State judge, and
because she is one of the nicest people I know, but it makes me
feel good because it shows that all the struggles, all the
demonstrations, all the tears were all worthwhile, and we can
be proud of the system of government under which we now live.
[The prepared statement of Justice Douglass appears as a
submission for the record.]
Chairman Hatch. Thank you so much, Justice Douglass.
We will turn to you, Justice Pesce.
STATEMENT OF HON. MICHAEL L. PESCE, PRESIDING JUSTICE,
APPELLATE TERM, NEW YORK STATE SUPREME COURT, SECOND AND
ELEVENTH DISTRICTS
Justice Pesce. Thank you, Mr. Chairman, for the
opportunity, and if I may, if I can digress a bit, rather than
read the statement which I submitted, I should address myself
directly to the one issue that appears to have arisen regarding
Dora's--as I call her--qualifications to sit as a Federal
district judge, and that is the issue of temperament.
Senator Durbin, you asked a very interesting question of
Pat Hynes, and the question was: Were there any complaints and
official reports made by attorneys about Judge Irizarry's
behavior while on the bench, or temperament? And she did not
have an answer to that. I have an answer to that because I was
her immediate supervisor, and I would be the one who would
receive such an official complaint, and the answer to that is
no.
In addition, I did receive complaints about Dora Irizarry
about how she ran the courtroom. I was her supervising judge,
and I was the first person--I guess the first target of lawyers
who complained.
The Brooklyn bench that was part of the Second Judicial
District with Richmond County, Staten Island, is the largest
single administrative judicial district in the country. It had
116 judges when I was a supervising judge and the
administrator. It had employees of over 1,000 people. It had
12,000 felony indictments. It had 52,000 civil filings and
other matters that it handled. The volume was tremendous. I
think E.J. would describe it as being ``humongous.''
Half of the judges sat in Criminal. In the criminal parts,
there were six judges who handled the bulk of the indictments,
would prepare the cases for trial. I can assure you that in my
career as a judge, I never encountered two lawyers who were
willing to go forward with any case to trial. They always found
ways to delay, to postpone. My statement has some reference to
that.
In order to effectively run those six parts that had all of
the 12,000 felony indictments, you had to be tough, capital T,
capital O--and the rest you know. And unless you are tough, you
are not getting anything done. And unless you are tough, what
happens is that the lawyers take over the courtroom. They run
your calendar.
The stress and the pressure are tremendous. I used to do
that type of work. I used to fly off the handle. I used to be
rude. I used to get angry at lawyers. That was part of the
nature of the work that was done. It was not fun. It was the
worst time that I ever spent on the bench. I am sure Dora feels
the same way. I put her there. And I would not put her there
unless I knew she could do the job, I knew that she could be
tough. That was part of the job description. If she could not
do it, she would have been out. I never even once received a
complaint from the district attorney of Kings County, who
happens to be a friend, and he would be more than happy to
confide in me socially or especially professionally that he was
having problems with Dora Irizarry. He was not. Staff
assistants were, perhaps. Assistant district attorneys were.
Not once did I receive a phone call from the head of the Legal
Aid Society, which represents the substantial bulk of attorneys
who represent indigents in criminal matters, who was also a
friend, who could easily have confided in me. But Legal Aid
attorneys certainly did complain to me, as did assistant
district attorneys. And in many cases, they were exaggerated,
but in many cases, I realized that it was part of the work that
took place in the part that Dora Irizarry had.
From that part, she went on to Manhattan, and she went, I
think, to heaven, because in Manhattan she did trials and that
was easy.
I did receive complaints from attorneys. I would receive
complaints about other judges. It does not justify the judge
sometimes flying off the handle. But judges are human beings.
We are imperfect human beings. And she will probably continue
to be an imperfect human being. But as a human being and as a
judge, she is absolutely one of the best I have ever known, one
of the best I have ever supervised.
And I think my statement ends by saying that the common
description by attorneys about Dora Irizarry was that she is
trying to run the courtroom as if it was the Federal bench. And
I said, well, that is very appropriate for the nomination.
So one thing that really surprised me is that--I am sorry
Pat Hynes did leave. I have known Pat Hynes a long time. I was
never called by the American Bar Association regarding the
impression of temperament, and that kind of surprised me. The
New York Bar Association called. Other groups called. But Pat
Hynes never called me. And I know her well, and she knows me.
And I was kind of surprised that she was even here to speak
about the temperament.
I would be glad to take questions.
Chairman Hatch. Well, thank you so much. I would point out
that it is not an easy job for the Bar Association people, and,
you know, it takes a lot of their time, and it is all
volunteer.
But the testimony of you three is very important to me, and
I personally appreciate you taking the time to be down here. So
your time has not been wasted.
Senator Durbin, I will turn to you.
Senator Durbin. Thank you, Mr. Chairman, and thank you all
for your testimony.
I might ask the two judges who are here: How common is it
that official complaints are filed by attorneys against judges?
Either one of you.
Justice Douglass. I do not think that it is common for
official complaints, but it is common for lawyers to go to the
administrative judge and say, ``I want to tell you something
off the record.'' And Mike can speak to when that happens. But
when lawyers are unhappy, they do not hesitate to go to the
supervising judge or administrative judge or to see them at a
coffee shop and say, ``You know, Judge So-and-so is not
treating me right.'' That is very common.
Senator Durbin. I would think that perhaps the point made
by Ms. Hynes earlier is one that I can recall from my own
practice. I was in a small town. But if you decide that you are
going to go to war with a judge, you better never plan on going
back to his courtroom. And I think that is a restraint from
some official complaints.
Justice Douglass. They could always speak to the
administrative judge kind of off the record.
Senator Durbin. Right. But the point that she made in her
testimony was that she spoke to--had 70 interviews, 50 lawyers
and 17 judges, and said the overwhelming majority came to the
same conclusion about the temperament of the nominee. And the
point that I think is equally important is that it appeared
that it was not just a matter of her taking command of a
courtroom early in her career and establishing her reputation,
but that these incidents appeared to take place throughout her
career on the bench. That to me is a troubling situation.
I would say that I am an Illinois lawyer, a downstate
lawyer, which is not in the big leagues of Chicago law practice
when I was in private practice. And I know that New York
lawyers are not known as being docile or deferential by nature.
But it seems to me that some very serious charges have been
raised here that go beyond whether she was controlling her
docket. It is a question of how she controlled it and whether
or not she would bring those same characteristics to the
Federal bench.
Judge Pesce, you say with some pride that you were tough,
rude, angry, and flew off the handle. Maybe that is the way you
do business in New York. I do not know. But I would say that if
nominees to the Federal bench came to us and said, ``We are
going to be tough, rude, angry, and fly off the handle to get
things done,'' they would have a tough time before this
Committee.
Justice Pesce. Yes, Senator, that should be taken along
with the other statement I made that we are not perfect human
beings. You fly off the handle. You are rude when you are faced
with over 100 felony indictments. I looked at some of the
numbers, and I think 1 year Dora had 8,230-something
appearances in 1 year, which means that there were 8,232
different attorneys who appeared before her on cases throughout
the year. And when you have hundreds of appearances in 1 day,
it is tough.
I do not expect the Federal dockets to have that kind of
volume because it is impossible, and I would be the first to
admit that it is almost impossible to handle those
circumstances. And with those circumstances and those
conditions and not being a perfect individual, you will find
the occasion when you are rude, ruder than you want to be. But
also, if you are rude in one instance, that attorney will not
forget it because he is sitting in the courtroom and he sees
you as a judge go through 85 cases, and everything is fine. And
on the 86th case, the attorney stands up and he is hit a bit by
the judge in a way that he does not particularly like, he is
going to remember that.
Senator Durbin. I do not question that. I can still
remember how judges treated me, and it has been over 20 years
since I have been in the courtroom.
Justice Pesce. And how judges treated me when I was an
attorney.
Senator Durbin. Sure. We do not forget those things. But
let me just say to you, I still am struck by Mr. Hayward's
statement that the ABA could not find a similar case involving
temperament where they found a person not qualified in over 20
years. They had to go back to the Reagan administration--before
the Reagan administration to find a similar case. So it
appeared that what came out in this interview process was very
extraordinary, and we have many Federal judicial nominees who
have had State court experience in very trying circumstances
who come to us aspiring to the Federal bench. So it appears
that it was a very unusual finding as a result of their
interview process.
Justice Pesce. I dare say--and I may be out on a limb on
this one, having part of my statement describe what Brooklyn
and Staten Island are like as the humongous judicial district,
the largest in the Nation--is that I am sure you have had
nominees who have come from similar courts. But I can assure
you--I invite you to visit--that the manner in which Brooklyn,
Kings County, runs because of the volume, sheer volume, is
unparalleled, not even in Manhattan, New York county, not even
in the Bronx, which is Bronx County, not even in Queens. Not
even L.A., which is the second largest judicial unit. Kings
County is quite a place to be.
And, again, I have to repeat that if the problem were as
serious as Pat Hynes found it to be, Dora Irizarry would not
have lasted in that part. I would have replaced her. The
district attorney of Kings County would have spoken out loud.
Senator Durbin. So you did not receive any informal
complaints about her demeanor in the courtroom?
Justice Pesce. I did receive informal complaints from
attorneys who would meet me socially at meetings and say,
``She's trying to run the courtroom like it's a Federal
bench,'' which means strict adherence to her rules. And while
you may tell the attorney once that this is the way I want
things done, in a State court that attorney does not seem to
pay attention.
Senator Durbin. Did they bring to your attention some of
the things that came out in the interviews--throwing objects at
attorneys in the courtroom, things like that?
Justice Pesce. That never came to my attention.
Senator Durbin. Were you aware of that, Justice Douglass?
Justice Douglass. No, I never heard that until this moment.
Senator Durbin. Thank you very much, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
We will make all of your full written statements part of
the record. I want to thank everybody who has appeared here
today. Judge Irizarry, we are very happy to have you here, and
we will try to move with expedition on your nomination. And we
appreciate the efforts that everybody has made, especially you
Supreme Court Justices. That means a lot to us, and we just
want to wish you continued good fortune on the bench and your
good work there, because what you do is extremely important.
With that, we will recess until further notice.
[Whereupon, at 11:09 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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