[Senate Hearing 109-397]
[From the U.S. Government Printing Office]

                                                 S. Hrg. 109-397, PT. 2




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                    NOVEMBER 1 AND NOVEMBER 15, 2005


                                 PART 2


                           Serial No. J-109-4


         Printed for the use of the Committee on the Judiciary


                                                 S. Hrg. 109-397, PT. 2



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                    NOVEMBER 1 AND NOVEMBER 15, 2005


                                 PART 2


                           Serial No. J-109-4


         Printed for the use of the Committee on the Judiciary

29-838                      WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            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
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S


                       TUESDAY, NOVEMBER 1, 2005


Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   151


Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky 
  presenting Gregory F. Van Tatenhove, of Kentucky, Nominee to be 
  U.S. District Judge for the Eastern District of Kentucky.......     5
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska 
  presenting Timothy Mark Burgess, of Alaska, Nominee to be U.S. 
  District Judge for the District of Alaska......................    37
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Eric Nicholas Vitaliano and Joseph Frank 
  Bianco, of New York, Nominees to be U.S. District Judges for 
  the Eastern District of New York...............................     2
Stevens, Hon. Ted, a U.S. Senator from the State of Alaska 
  presenting Timothy Mark Burgess, of Alaska, Nominee to be U.S. 
  District Judge for the District of Alaska......................     1

                       STATEMENTS OF THE NOMINEES

Bianco, Joseph Frank, of New York, Nominee to be U.S. District 
  Judge for the Eastern District of New York.....................     6
    Questionnaire................................................   105
Burgess, Timothy Mark, of Alaska, Nominee to be U.S. District 
  Judge for the District of Alaska...............................    67
    Questionnaire................................................    68
Van Tatenhove, Gregory F., of Kentucky, Nominee to be U.S. 
  District Judge for the Eastern District of Kentucky............    37
    Questionnaire................................................    39
Vitaliano, Eric Nicholas, of New York, Nominee to be U.S. 
  District Judge for the the Eastern District of New York........     7
    Questionnaire................................................     8

                         QUESTIONS AND ANSWERS

Responses of Joseph F. Bianco to questions submitted by Senator 
  Schumer........................................................   129
Responses of Timothy M. Burgess to questions submitted by Senator 
  Schumer........................................................   131
Responses of Gregory F. Van Tatenhove to questions submitted by 
  Senator Schumer................................................   133
Responses of Eric Vitaliano to questions submitted by Senator 
  Schumer........................................................   134

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Stephen L. Tober, and E. Osborne 
  Ayscue, Jr., Standing Committee on Federal Judiciary, 
  Washington, D.C., prepared statement...........................   136
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York, prepared statement...................................   149
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky, 
  prepared statement.............................................   152
United States Senate, Committee on the Judiciary, conference call 
  regarding the nomination of Gregory F. Van Tatenhove...........   157

                       TUESDAY, NOVEMBER 15, 2005


Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   169


Durbin, Hon. Richard, a U.S. Senator from the State of Illinois 
  presenting Virginia May Kendall, Nominee to be U.S. District 
  Judge for the Northern District of Illinois....................   173
Obama, Hon. Barack, a U.S. Senator from the State of Illinois 
  presenting Virginia Mary Kendall, Nominee to be U.S. District 
  Judge for the Northern District of Illinois....................   172
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama:
    presenting Kristi Dubose, Nominee to be U.S. District Judge 
      for the Southern District of Alabama.......................   171
    presenting W. Keith Watkins, Nominee to be U.S. District 
      Judge for the Middle District of Alabama...................   175
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama 
  presenting W. Keith Watkins, Nominee to be U.S. District Judge 
  for the Middle District of Alabama.............................   170

                       STATEMENTS OF THE NOMINEES

Watkins, W. Keith, of Alabama, Nominee to be U.S. District Judge 
  for the Middle District of Alabama.............................   176
    Questionnaire................................................   178
Dubose, Kristi, of Alabama, Nominee to be U.S. District Judge for 
  the Southern District of Alabama...............................   210
    Questionnaire................................................   211
Kendall, Virginia Mary, of Illinois, Nominee to be U.S. District 
  Judge for the Northern District of Illinois....................   234
    Questionnaire................................................   235

                       SUBMISSION FOR THE RECORD

Shelby, Hon. Richard, a U.S. Senator from the State of Alabama, 
  prepared statement.............................................   271


Bianco, Joseph Frank, of New York, to be U.S. District Judge for 
  the Eastern District of New York...............................     6
Burgess, Timothy Mark, of Alaska, to be U.S. District Judge for 
  the District of Alaska.........................................    67
Dubose, Kristi, of Alabama, Nominee to be U.S. District Judge for 
  the Southern District of Alabama...............................   210
Kendall, Virginia Mary, of Illinois, Nominee to be U.S. District 
  Judge for the Northern District of Illinois....................   234
Van Tatenhove, Gregory F., of Kentucky, Nominee to be U.S. 
  District Judge for the Eastern District of Kentucky............    37
Vitaliano, Eric Nicholas, of New York, Nominee to be U.S. 
  District Judge for the the Eastern District of New York,.......     7
Watkins, W. Keith, of Alabama, Nominee to be U.S. District Judge 
  for the Middle District of Alabama.............................   176



                       TUESDAY, NOVEMBER 1, 2005

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 1:35 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles 
Schumer, presiding.
    Present: Senator Schumer.
    Senator Schumer. We are going to call the hearing to order. 
We are under unusual circumstances. So our candidates, their 
friends and family, and all others understand, we have called a 
special session, which is a closed session, to discuss 
intelligence matters on the floor of the Senate. It was 
unexpected. I am going to have to be on the floor very quickly, 
so I may have to suspend the hearing until we can get someone--
Senator Kyl was supposed to be here, but he had to stay there, 
and Senator Specter, in an act of bipartisanship, asked me to 
be here or asked me to chair it since I was here because of our 
two New York judges.
    I will save my opening statement for a minute because I 
know that Senator Stevens has a statement and has another 
Committee hearing. So I will recognize Senator Stevens first 
for his statement.


    Senator Stevens. Well, thank you very much, Mr. Chairman, 
and it is an honor to be here today and an honor to present to 
the Committee Tim Burgess, who is the nominee to be district 
judge in Alaska.
    Tim came to our State 30 years ago to play basketball at 
the University of Alaska-Fairbanks, and he never left Alaska. 
He now lives in Anchorage with his wife, Joanne Grace, and four 
children, one of whom is with him here today.
    I first met Tim in 1982 when he served as legislative 
assistant to then-Senator Frank Murkowski. In 1989, he joined 
the U.S. Attorney's Office for the District of Alaska as 
Assistant U.S. Attorney working on criminal prosecution and 
civil litigation. In 2001, President Bush nominated Tim to be 
the U.S. Attorney for the District of Alaska, and he has served 
as our State's chief Federal law enforcement officer with great 
distinction. As a former U.S. Attorney, I do appreciate his 
service there.
    As a U.S. Attorney, Tim also serves as a co-Chair of 
Alaska's Rural Justice and Law Enforcement Commission, which 
the Congress created at my request in 2004 to improve the 
quality of justice in rural Alaska. Tim has demonstrated 
exceptional leadership on rural justice issues. He has been 
instrumental in organizing the process and moving it forward. 
The commission recently produced a draft report of suggestions, 
which has been distributed for comment across our State. This 
milestone is in part a reflection of Tim's ability to serve as 
a unifying force among many differing points of view. Tim is a 
devoted public servant and a talented legal mind. His 
commitment to the rule of law led President Bush to nominate 
him to the position of U.S. District Court Judge for Alaska.
    I am confident Tim will approach this new position with the 
same dedication which he has fulfilled his other assignments, 
and I urge this Committee to act quickly on this nomination. 
And I thank you for the courtesy of taking the Chair.
    Senator Schumer. Senator, you have always extended courtesy 
to me and the people of New York, so it is a pleasure to 
reciprocate in a small way.
    OK. Now I will read my opening statement on behalf of two 
New Yorkers.


    Senator Schumer. It is great to have two New Yorkers 
nominated for positions both on the Eastern District, which 
covers my home borough of Brooklyn and Queens, Nassau County, 
Suffolk County, a very large judicial district. I think it may 
be the largest. It has 7 million people in one judicial 
district. And so I want to thank the Chairman for scheduling 
this hearing and for considering the nomination of both Eric 
Vitaliano and Joseph Bianco to the Federal Court for the 
Eastern District of New York.
    I would say that this comes at an opportune time. It is a 
singular week for Italian-Americans in the judiciary, and 
overlooked in all the attention to Judge Samuel Alito's 
nomination to the Supreme Court--which I will have more to say 
about in a different forum, not today--we are considering the 
nomination of two outstanding Italian-Americans nominated to 
the Federal District Court in the Eastern District.
    Now, one of the things that is hard to believe, but there 
are no Italian-Americans sitting in the Eastern District, 
despite a large Italian-American population. And I have to be 
honest, the Columbian Society and other Italian-American 
organizations came to me, pointed that out, and I agreed with 
them. And we have had in the past, but because of retirements 
we do not right now.
    And so I have been committed to correcting it, and if all 
goes well here--and we expect that it will--we will be 
increasing the ranks of Italian-Americans in the Eastern 
District of New York by infinity. And for the young children 
here, the Vitaliano children, the Bianco children, that is 
because anything from zero to something, it goes up by 
infinity. I think.
    Senator Schumer. In any case, first I want to introduce to 
my colleagues and to the entire U.S. Senate Eric Vitaliano. I 
have known Eric Vitaliano for close to two decades, and he is 
just a class act. And everything he has done, he has been a 
class act. He has had an impressive career in the legal 
profession. He is a true lifelong New Yorker. And, frankly, 
another thing to his benefit, he is from Staten Island. And I 
always want to see Staten Island recognized--it is also part of 
the Eastern District--on the bench and everywhere else. I have 
worked hard.
    First, let me say in New York we have worked out a 
wonderful system for nominating judges to the district court 
and the circuit courts. With all the back-and-forth on judges 
at the national level and in other districts, we have worked it 
out. The President, Governor Pataki, and I worked together to 
name highly qualified consensus candidates to the Federal 
bench. There is often rancor when it comes to judges from other 
parts of the country, but none when it comes to New York. And 
that is because in New York the candidates we select are 
mainstream, consensus candidates. Some may be a little more 
conservative. Some may be a little more liberal. But they are 
all within the broad mainstream that defines America.
    Now, I am especially proud to introduce Judge Vitaliano, 
because he was my recommendation for a seat on the Eastern 
District. The administration agreed with my assessment of his 
integrity, credentials, and excellence, and formally nominated 
him a few weeks ago. And so I am heartened by the strong 
bipartisan support that you have received, Eric. Eric's 
nomination is the product of a real consultation process and a 
strong commitment to choosing moderate, diverse, and well-
qualified judges in New York.
    Judge Vitaliano is joined today by many members of his 
family, and I know they are all proud. I am not going to 
introduce his brother who moved to New Jersey, but a few of the 
others I will, just his immediate family. Helen is here, who 
has been by Eric's side for so long and has played such a great 
role in the success that the Vitaliano family has had, and the 
four children: Michael, who is 15; Emma, who is 12; Abigail, 
who is 9; and Halle, who is 6. And I have known them since they 
have been very, very little. One of my great--I really say 
this. My greatest regret in life, which shows you God has been 
good to me, is that Iris and I did not have more children. We 
have two beautiful girls. I wanted four. She wanted two. Guess 
    Senator Schumer. We have two.
    Also with Judge Vitaliano, aside from his wayward brother, 
are his sister-in-law, Dorothy Hurley; her husband, John; 
nephew, Terence; and, finally, I want to make mention of 
somebody who is a close friend of mine who was always 
whispering in my ear, Eric, ``Eric Vitaliano, Eric Vitaliano. 
Come on, Chuck, Eric would be a great judge.'' And that is 
someone who worked for me for many years and now has gone on to 
much greater things: Michael Cusick. Mike is the Assemblyman 
from one of the four districts on Staten Island, and just a 
wonderful person, and I am sure he is as proud as the Vitaliano 
family as he sits here today, particularly knowing that there 
have been so many judges, including his later father, in the 
Cusick family.
    Let me just give a brief biography. Judge Vitaliano grew up 
on Staten Island, attended Fordham University in the Bronx, NYU 
Law School in Manhattan. He clerked for Judge Costantino, one 
of the Italian-Americans on the Eastern District, who, of 
course, is no longer there. And that is the court he has been 
nominated to.
    Apart from a brief stint in Washington, he spent his entire 
life in New York. He graduated cum laude from NYU, spent 
several years with one of the most prestigious law firms in New 
York--Simpson, Thacher & Bartlett--and then was chief of staff 
to Congressman John Murphy before beginning his own law 
    After that, he spent two decades as a distinguished member 
of the New York State Assembly, representing first the 59th and 
then the 60th Assembly Districts. Redistricting changed the 
numbers--same place. And he has more recently been a civil 
court judge and, since 2004, an acting Supreme Court judge in 
the State of New York.
    Here is what the well-read local newspaper and well-
respected local newspaper, the Staten Island Advance--for those 
of you not from Staten Island, it is not the ``Ad-VANCE''; it 
is the ``AD-vance''--has said about Eric Vitaliano: ``Eric 
Vitaliano is the epitome of the most often misused description 
of proper judicial temperament.''
    This is continuing the quote, but that is a quote in a 
quote. `` `He is one of the most intelligent and analytical 
public officials we have ever had the pleasure to meet. He is 
fair and reasonable almost to a fault.' ''
    I have known Eric--as I said, he is a class act. He is 
smart. He has integrity. He is decent. He is honorable. He will 
just be a great judge. And he is achieving something that he 
has dreamed about for a long time. I am very pleased that the 
President acted on my suggestion in nominating Judge Vitaliano, 
and I hope the Senate will move expeditiously to confirm him.
    Now, second, I would like to introduce to the Committee 
Joseph Bianco. He was nominated by the President as well, 
another great, great guy from New York, and he is joined today 
by his wife, Melissa, who I saw outside with their little one. 
I guess she is still outside. Nicholas was his name, but he 
didn't give me a high five. But his other children are here, 
another family of four children, making me even more envious. 
There is Joey, who is 11; Davey, who is 8; Stephanie, who is 6; 
in addition to Nicholas; and a full complement of law clerks.
    Joe Bianco was born in Flushing, but we will forgive him 
for this fact because he saw the error of his ways and moved to 
Brooklyn, and he has lived there since he has been 11. I am a 
Brooklynite, first Senator from Brooklyn in 140 years. He 
graduated as a member of Phi Beta Kappa from Georgetown 
University here in Washington, went on to earn his degree from 
Columbia Law School, and then clerked for another very fine 
judge, Justice Leisure of the Southern District in New York.
    After a brief stint in private practice, Mary Jo White 
hired him to be an Assistant U.S. Attorney in the Southern 
District of New York, one of the strongest and toughest 
districts--when you work there, you learn everything--from 1994 
to 2003. And while at the U.S. Attorney's Office, Mr. Bianco 
prosecuted mobsters, terrorists, violent gang members, and 
other criminals.
    After a short time, his supervisors, who included David 
Kelly, until very recently the acting U.S. Attorney, and a name 
that has been in the news lately, Patrick Fitzgerald, promoted 
him to the position of Deputy Chief of the unit responsible for 
investigating and prosecuting organized crime and terrorism. 
And, in fact, Mr. Bianco replaced Patrick Fitzgerald as the 
chief of the Organized Crime and Terrorism Unit, I guess when 
Patrick Fitzgerald went over to Chicago to the U.S. Attorney's 
Office in Illinois.
    In the U.S. Attorney's Office, he supervised, among other 
people, my chief counsel, Preet Bharara--it is one happy family 
here in New York--who tells me that Mr. Bianco was among the 
most beloved and respected prosecutors in that office. And 
since Preet no longer works for Joe Bianco, you can be sure he 
means those words, and Preet's recommendation is second to none 
as far as I am concerned.
    He has since gone on to be Deputy Assistant Attorney 
General in the Criminal Division of the Justice Department 
where he now serves. I am proud--I did not nominate him 
originally, but I am proud to support someone as outstandingly 
qualified and well respected as Mr. Bianco.
    We have two great nominees from New York, high quality, and 
I am proud to be here.
    With that, I see that my colleague Senator Bunning--we are 
sort of going on the fly here because of the closed session. So 
instead of--we will break out of the regular order, ask Senator 
Bunning to come forward so he can give his statement on behalf 
of Greg Van Tatenhove. Senator Bunning?


    Senator Bunning. Thank you, Senator Schumer. It is a 
privilege to help introduce Greg Van Tatenhove to this 
Committee. By sending his nomination to the Senate, the 
President is presenting a top-notch candidate for the Federal 
bench in the Eastern District of Kentucky.
    A quick look at Greg's resume shows me his strong 
qualifications. Although Greg is not originally from Kentucky--
and that is a rare bird that gets nominated to the judiciary if 
they were not born there--he made a very smart decision by 
making a permanent move to our Commonwealth.
    Greg is a graduate of Kentucky's Asbury College and the 
University of Kentucky College of Law. He has worked two stints 
for members of Kentucky's Federal Congressional delegation: 
Senator Mitch McConnell and Representative Ron Lewis.
    Greg has served as a judicial law clerk in the U.S. 
district court, and he served in the U.S. Department of 
Justice's Civil Division as a trial attorney.
    Finally, over the last 4 years, Greg has served admirably 
as the U.S. Attorney for the Eastern District of Kentucky. 
Clearly, Greg possesses the wisdom and character to sit on the 
Federal bench.
    His time on Capitol Hill, in the Department of Justice, and 
within our judicial system gives Greg a wealth of knowledge and 
experience which can only make him a better judge. I hope swift 
progress can be made toward his confirmation, and I appreciate 
the Chairman's scheduling this hearing.
    I want to thank you, Senator Schumer, for filling in and 
doing such an admirable job, and I am very happy, along with my 
colleague Senator McConnell, who is obviously stuck on the 
floor of the U.S. Senate right now, to support the nomination 
of Greg Van Tatenhove for U.S. District Judge for the Eastern 
District of Kentucky.
    Senator Schumer. Thank you, Senator Bunning, and we 
appreciate your being here, and obviously your recommendation 
means a great deal to the Committee.
    OK. We are now going to call our four nominees: Eric 
Nicholas Vitaliano, to be U.S. District Judge for the Eastern 
District; Gregory F. Van Tatenhove, to be U.S. District Judge 
for the Eastern District of Kentucky--Vitaliano, of course, is 
for New York--Joseph Frank Bianco, to be U.S. District Court 
Judge for the Eastern District of New York; and Timothy Mark 
Burgess, to be U.S. District Judge for the District of Alaska.
    Well, we are going to have to improvise since they do not 
have the sheet here. Please raise your right hands, gentlemen. 
Do you solemnly swear to tell the whole truth and nothing but 
the truth, so help you God?
    Judge Vitaliano. I do.
    Mr. Van Tatenhove. I do.
    Mr. Bianco. I do.
    Mr. Burgess. I do.
    Senator Schumer. Please be seated. They said I did it all 
    OK. Now, we do not have many members here, and all of you 
have not raised many questions of this Committee. So I don't 
think we are going to do too many questions since there is the 
closed session. I will ask all of you--let's see here. I am 
going to ask you, tell us--I will ask you each--because you 
have each had different experiences. Tell us what are the 
reasons that you seek to become a Federal judge. We will start 
with Mr. Vitaliano and work our way over.


    Judge Vitaliano. Thank you, Mr. Chairman. It's certainly an 
honor and a privilege to be here, to be before you and the 
members of this Committee. As you so eloquently put in your 
remarks on my behalf at the beginning of the hearing, I have 
dedicated most of my adult life to public service. I was 
privileged to begin my public service in the Eastern District 
of New York, first as a Temporary Deputy United States Marshal, 
and then later as a law clerk to Staten Island's first Federal 
judge, Mark Costantino. My public service continued as a member 
of the New York State Assembly, and now as a trial judge in the 
New York State court system. It has allowed me to develop a 
very broad, deep, rich experience, diverse experience in the 
law, to hone the skills that are necessary to be a trial judge 
in the United States district court.
    By being a judge for now 4 years, I have been able to 
understand in a very palpable way the awesome power of the 
judiciary, to understand the importance of continuing public 
service in a way that benefits real people with real 
controversies, to have the temperament to administer justice 
not only fairly in fact but fairly in appearance. Those are the 
skills that I have developed over these years, and I look 
forward to being granted the opportunity and the privilege to 
continue that kind of service as a United States District Judge 
in the Eastern District of New York.
    [The biographical information of Judge Vitaliano follows:] 

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    Senator Schumer. Thank you, Judge Vitaliano. They are now 
calling me over there, so I am going to ask each of our 
prospective nominees to be quick. But I see that Senator 
Murkowski is here on behalf of Mr. Burgess. Senator Stevens was 
here already. We are under real time constraints, but I want to 
recognize Senator Murkowski to say a few words on behalf of Mr. 
Burgess. And your entire statement will be read into the 


    Senator Murkowski. Thank you. I so appreciate that.
    I want to welcome a colleague of mine. In fact, Mr. Burgess 
and I were actually sworn in to the Alaska Bar together, so we 
have not only a longstanding professional relationship, but I 
think it is fair to say a longstanding personal relationship. 
Our kids are participants in YMCA basketball, and Tim is a 
coach there. I see him out on the soccer field. I see him in 
the real world, being a dad, being a community leader, being a 
    I want to commend Tim for the acts that he has done as our 
U.S. Attorney General working on drug education initiatives 
like Red Ribbon, something that I am very involved in, in our 
State; working on programs like Weed and Seed; and more 
recently the Interagency Terrorist Threat Task Force that we 
have seen some incredible successes, working with the Federal, 
the State, the local to really bring together those that are 
involved to make a difference in our State. Tim is a leader at 
the community level, at the State level, and I am delighted to 
stand with him and recommending him for this judgeship.
    I appreciate the opportunity to speak here today and to 
endorse him. Thank you.
    Senator Schumer. Thank you, Senator Murkowski, and I 
appreciate your being here.
    I ask unanimous consent--which I guess if I say it is OK, 
it will be.
    Senator Schumer [continuing]. For Senator Leahy's and 
Senator McConnell's statements to be entered into the record.
    Now I do have to go to this session, so what we are going 
to do--and this is no--in fact, the fewer questions you are 
asked, the better, gentlemen. We are going to leave the record 
open for 1 week for any Senator to submit written questions, 
which you will be required to answer.
    With that, do any of you want to say anything in 
particular? Do you, Mr. Van Tatenhove and Mr. Burgess, want to 
introduce your families briefly? I introduced Mr. Bianco's 


    Mr. Van Tatenhove. Mr. Chairman, I appreciate the 
opportunity to do that, and I appreciate the courtesy of the 
hearing. We certainly understand the unusual circumstances that 
we are under today.
    You asked about my qualifications. The one that I am 
proudest of is that as a husband and father, so I will quickly 
introduce my family that is here today.
    First of all, my daughter, Catherine, who is a first grader 
at the Lexington School in Lexington, Kentucky; my son, Cooper, 
who is fifth grader at the Lexington School. I am pleased also 
to have my wife of over 21 years, Jane, who is with me here 
today; and I am particularly pleased to have my sister, who I 
describe as the smartest lawyer in my family, Jana, who is here 
with her husband, Rick. I am also pleased to have my brother-
in-law, David Cooper, who is here with his friend, Chris 
Koosher. And I have a number of other friends here. It is a 
privilege to have them here.
    Thank you, Mr. Chairman.
    [The biographical information of Mr. Van Tatenhove 





























    Senator Schumer. And how about you, Mr. Burgess? Would you 
do us the honor of introducing your family?


    Mr. Burgess. Thank you, Senator. My son, Foster Burgess, is 
right over here. He was the only one able to make the long trip 
with me for this.
    Senator Schumer. We understand. There is no shuttle every 
half-hour, as I understand it, the way there is to New York.
    Mr. Burgess. No, there is not. But I also have four 
children, and I also have with me three of my Washington family 
from my many years of working here when I was much younger: 
Mary Maguire, Donna Murray, and John Devore.
    [The biographical information of Mr. Burgess follows:] 

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    [The biographical information of Mr. Bianco follows:] 

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    Senator Schumer. Thank you.
    With that, I want to thank all of you gentlemen for the 
great service that you have done, both in public and private 
careers, and we will see if there are any written questions, 
and the Committee is going to do everything to move, to 
expedite the process so that you can assume a position on the 
bench, which I am confident each of you will receive from the 
    Thank you, and with that, the hearing is adjourned.
    [Whereupon, at 2:20 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 































                       FRIDAY, NOVEMBER 18, 2005

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:06 p.m., in 
room SD-240, Dirksen Senate Office Building.
    Participants: Senator Sessions, Cornyn, Schumer, Stephen 
Tober, Esq., American Bar Association, Ozzie Ayscue, Esq., 
American Bar Association, Robert Evans, American Bar 
Association, Denise Cardman, American Bar Association and 
Senate Staff present Peter Jensen, Chip Roy and Bob Schiff.

                         P R O C E E D I N G S

    Senator Sessions. I think we are all here. Steve Tober, who 
is the Chair of the Standing Committee on Judiciary for the ABA 
for New Hampshire; and Ozzie Ayscue, who did the work up on 
Tatenhove. He is in Charlotte.
    We have Joe Biden's staffer and John Cornyn, and a couple 
of--Bob Evans and Denise Cardman with the ABA staff people. I 
would just say this. Chairman Specter asked that I conduct this 
conference call to discuss the ABA's rating of Greg Van 
Tatenhove, who has been nominated for the District Court Judge 
for the Eastern District of Kentucky. I understand that 
representatives are here, Tober and Ayscue.
    Mr. Tober, I appreciate your presence.
    Senator Schumer. Jeff, could I just interrupt? This is 
being transcribed by a reporter just like at a hearing, right?
    Senator Sessions. Yes, that is correct.
    Senator Schumer. And when will we get the transcription, a 
couple of days?
    Senator Sessions. Maybe the reporter who is here--
    Mr. Jensen. Senator, this is Pete Jensen. I work for 
Chairman Specter. We have requested that we get it back later 
    Senator Sessions. OK, very quick turnaround.
    Senator Schumer. OK, great, thanks. Go ahead, Jeff. Sorry 
to interrupt.
    Senator Sessions. Mr. Tober, do you have a statement that 
you would like to make at this time? We would be glad to hear 
any thoughts you have on it.
    Mr. Tober. I do, Senator, and I appreciate the opportunity 
to do that. I know everybody has a very busy schedule. I will 
try to be very brief.
    First of all, I want to thank the Senate Judiciary 
Committee for the opportunity to be heard on this important 
nomination, and I do want to express the hope, the concern, the 
belief that by doing this by teleconference is an isolated and 
singular event and not some precedent that will go on in the 
future for reasons that as I talk further I think will become 
self evident.
    We take the role we play in judicial nominations extremely 
importantly, and I do not think there is any substitute for the 
regular process within the normal course. And I think you all 
know, the ABA process has been something that has developed 
over generations of time and effort, and it is a very well-
thought-out and very good one, and I hope that we can restore 
the way we were doing things.
    Very quickly, I just want to point out that with respect to 
Mr. Van Tatenhove, the nomination, as I understand it, was 
formally announced on September 13th. The evaluation was 
started upon our receipt of the signed waiver forms. That is 
our regular practice, and that occurred on October 5th. The 
investigation was completed within the requisite time and 
circulated before November 5th, so within 1 month, between 
October 5th and November 5th, the investigation was conducted, 
written and circulated. And then our vote was taken and the 
rating was released within the next 5 days on November 10th. So 
that is the 30 days plus 5 that we try to adhere to rigorously 
in our process.
    Ozzie Ayscue was good enough to stand in and do this 
evaluation for us. Ozzie served on this Committee as the Fourth 
Circuit representative from 2001 to 2004. He, in that 
timeframe, had the opportunity to review, vote on and 
participate in well over 230 evaluations. Ozzie is one of the 
most premier and seasoned individuals that served on this 
committee, and I was pleased that he could stand in because the 
regular sitting Committee representative from the Fourth 
Circuit was involved at that time in another process, and that 
was the evaluation of Harriet Miers. So Ozzie was kind enough 
to help us with this.
    There is no question that the evaluation that he conducted 
was thorough. It was thoughtful. It was comprehensive. He 
maintained, as we always do, the confidences of the individuals 
with whom we speak, and during the course of his investigation 
he contacted 40 judges, lawyers, other people in the legal 
community who would have contact the nominee, Mr. Van 
Tatenhove, and he received substantial material information 
from 30 of those 40 contacts within that timeframe.
    Let me get to the point of what the evaluation 
demonstrated. With respect to positive things, Mr. Van 
Tatenhove presented no issues whatsoever with respect to 
integrity or his potential for judicial temperament. He was 
found through the investigation to be a very bright, capable 
and honest man, and he is collegial, gracious, and has a very 
good personality from all indications in this investigation.
    What arose, however, was substantial concern regarding his 
professional competence. I think you are familiar with what we 
call ``the backgrounder'', which is our printed standards that 
we adhere to, The backgrounder talks in terms of professional 
competency encompassing qualities of intellectual capacity, 
judgment, writing and analytical ability, and most particularly 
in this case, knowledge of the law and breadth of professional 
    Some of the sample comments that came from the 
investigation were as follows: ``He hasn't tried very many 
cases, is not necessarily the most experienced.'' ``His lack of 
trial experience is troubling.'' Those are not isolated 
comments. They lace throughout the investigation from 
enumerable individuals among the folks who--
    Mr. Schiff. Bob Schiff, with Senator Feingold.
    Mr. Tober. Who were able to pass comment along to Ozzie 
Ayscue in the investigation.
    The backgrounder also has something that we call, if you 
will, the 12-year rule. It is a flexible rule. It is not a hard 
and fast rule. What that means is we have a rule in which we 
look for at a minimum 12 years of legal experience, practical 
legal experience as a floor, as a base for somebody's 
experience in the law, as something that we would hope to see 
when they are nominated to the Federal District Court. This 12-
year-rule, if you will, has been around for quite a period of 
time. It shows up in our printed backgrounder at least back in 
1977, and in fact, Senator, back then it was something on the 
order of 12 to 15 years as a floor. It was revised over the 
course of time to bring it to 12 years, but in reality that 
rule, that standard, if you will, has been around for a lot 
longer than that.
    Senator Sessions. As a written standard?
    Mr. Tober. Yes, sir. It is in our backgrounder. It is in 
the glossy material that we hand out to everybody who is 
involved, the nominee, the individuals with whom we speak. It 
is on our web page. It is our bible, if you will, of how we try 
to do things.
    And it refers, Senator, when we talk about this 12-year-
rule, there are a couple of comments tied around it that I want 
to bring to the attention of this Committee.
    One of the things we look for in determining this 12-year-
rule, is substantial courtroom and trial experience as a lawyer 
or a trial judge. It is very important for nominees, for both 
the appellate and the trial courts. Now, there are people, 
Senator, who do not necessarily have exactly 12 years. They may 
have less than that. They may have more than that. It is not 
meant to be any kind of a litmus test, it is meant to be a 
generalized standard. So we recognize in our backgrounder that 
there may be, and I am quoting, ``significant evidence of 
distinguished accomplishment in the field of law which may 
compensate for a nominee's lack of substantial courtroom 
    But let me underscore that in this nomination of Mr. Van 
Tatenhove, he is being nominated for life to the Federal trial 
bench, and so it became very important to see what kind of 
trial experience Mr. Van Tatenhove would be bringing to this 
job, keeping in mind that we have no issue with integrity or 
his potential for judicial temperament.
    What we found was this: Mr. Van Tatenhove has been--
    Senator Schumer. Is this in writing, as if you are reading 
from something, Steve?
    Mr. Tober. I just have notes I have written to myself.
    Senator Schumer. OK.
    Mr. Tober. We are going to--in fact, thank you for that. We 
would like to submit a written statement after the fact.
    Senator Schumer. Please. That would be great.
    Mr. Tober. Which will cover all this. But these are my 
notes that I am just looking at.
    Senator Schumer. OK, sure.
    Mr. Tober. He was licensed in 1990, and of those 15 years 
in which he has been continuously licensed, eight of them 
constitute, in the opinion of the committee, the practice of 
law. And those eight were 4 years with the Department of 
Justice at the beginning of his career, and then 4 years as 
United States Attorney for the Eastern District of Kentucky. He 
has a 7-year period, much more contemporaneous period, in which 
he was working for Congress. Even he admitted in his interview 
with Ozzie Ayscue that he was not practicing law in a formal 
sense while he was working in Congress. And so the Committee 
drew the judgment, as did the investigator, that Mr. Van 
Tatenhove presented with 8 years of legal experience.
    So that means that we had to look around for that other 
significant evidence of distinguished accomplishment. What we 
did is, for one place, we look at his trial work, what did he 
do for those 8 years that would have brought him to a 
    And here is the troubling part. As you all know, when they 
fill out Senate questionnaires nominees indicate their 10 most 
significant cases. Mr. Van Tatenhove did that. Of his 10 most 
important cases, first of all, all of them were civil and all 
of them go back to his time at the Department of Justice, which 
puts them back 11, 12 years in time at a minimum. Of those 10 
    Senator Schumer. So it is a fair guess he did not try any 
cases as U.S. Attorney.
    Mr. Tober. He tried--that is correct. He did not try any 
cases as U.S. Attorney, Senator. He was--and I believe he 
admits to this--he was an administrator for most of his time, 
if not all of his time as U.S. Attorney. And then Ozzie Ayscue 
can weigh in on that.
    But of the 10 cases, five of them were still pending when 
he left the Department of Justice and moved on. Two of the 10 
were dismissed on motion; two were settled before they ever 
were adjudicated; and one he tried. And the one he tried was a 
2-day evidentiary hearing to a Federal Magistrate. So we have 
an extremely limited capacity for experience in the courtroom.
    The bottom line that this Committee determined is that this 
nominee, while a very nice gentleman of no question integrity 
and no question temperament, has the experience of one 2-day 
trial 12 years ago in the process of the practice of law, and 
that was a civil case. He has never tried a criminal case. He 
has never been before a jury. He has never done anything along 
those lines other than that one trial.
    Senator Cornyn. Mr. Tober, may I ask a question at this 
point? This is John Cornyn.
    Mr. Tober. Sure, Senator.
    Senator Cornyn. Just so I am clear, so the ABA does not 
credit any time that a lawyer works on Congressional staff. For 
example, each of us have lawyers who work to advise us on the 
Senate Judiciary Committee on everything from nominations to 
legislation, you name it, but would it be correct to say that 
the ABA would not credit any of that kind of experience either 
as time served as a lawyer that would meet the ABA's standard?
    Mr. Tober. No, Senator. That would not be a fair statement 
of a general nature. It may well be a fair statement in this 
particular case. And the reason I say that--and Ozzie Ayscue 
talked to Mr. Van Tatenhove about that very issue--is that Mr. 
Van Tatenhove's personal particular experience working for 
Congress was not of the type that would have exposed him to the 
kind of trial experience that one was looking for when you are 
nominated to the trial bench. While he did talk in terms, 
Senator, of having worked on Congressional--excuse me--
constitutional issue and some other parts that were component 
parts of the practice of law--we do not deny that--it was not 
within the setting of having a command of rules of evidence, of 
rules of civil procedures, of rules of criminal procedure, of 
having to rule on objections. None of that really would have 
come from his experience working within the context of 
    Senator Cornyn. Just to followup on that real quickly and 
then we can move on, just so we are clear, none of our counsel 
who would advise us on nominations, legislation, constitutional 
amendments and the like would have that kind of experience 
either. The day-to-day procedural matters, ruling on matters of 
evidence, or arguing cases to juries, so it is not clear to me 
how Mr. Van Tatenhove's experience would be distinguished, 
let's say, from the staff of the Senate Judiciary Committee in 
terms of crediting time for this purpose.
    Mr. Tober. Well, I cannot speak to what others may do or 
not do, Senator. Obviously, you can do that with far more 
understanding than I can, but I want to underscore, we take 
these one case at a time, and we look at the individual as they 
present himself or herself. And we talk to them about our 
concerns, and this is one of the things that indeed we did do.
    Senator Cornyn. Thank you.
    Senator Schumer. Let me ask this. Are you finished, Steve, 
with your--
    Mr. Tober. I just wanted to do one more thing.
    Senator Schumer. Go ahead. Why don't you finish?
    Mr. Tober. One more thing. The vote, as you know from our 
letter, was a majority ``not qualified'' and minority 
``qualified.'' And I guess I wanted to say that I want the 
Senate Committee to understand that every member of my 
Committee recognizes that there is a very real person on the 
receiving end of a ``not qualified'' rating. It is not anything 
we miss, that in fact these nominations have faces. I asked my 
committee, and I have asked my committee, and I will continue 
to ask my committee, to vote their conscience when they in fact 
have one like this, to look very hard at it, particularly if it 
is going to be a ``not qualified'' result in their mind, 
because it obviously affects people's lives.
    Having said that, this Committee came up with a majority 
``not qualified.''
    Senator Schumer. Can you tell us the vote, Steve, number?
    Mr. Tober. I can only tell you, Senator, that it was a 
majority ``not qualified,'' but I can also tell you--I do not 
mean to be disingenuous--our backgrounder defines it, and it 
says that ``when the nominee receives a specific rating from a 
majority (8 or 9 members), or a substantial majority (10 to 13 
members).'' This was a majority.
    Senator Schumer. OK, got it. And there are 13 total?
    Mr. Tober. There are 14 members on the Committee plus me, 
but I take my role to be the vote in the case of a tie.
    Senator Schumer. So you do not vote?
    Mr. Tober. Only in a tie.
    Senator Schumer. OK. So it could have been 8-6 or 9-5.
    Mr. Tober. That is correct.
    Senator Cornyn. Mr. Tober, may I ask one other question 
about this standard. The mentioned the 12 years trial 
experience standard would apply for both a Federal District 
Court and a Circuit Court; is that correct?
    Mr. Tober. The 12 years is the practice of law, but--
    Senator Cornyn. It is practice of law, OK.
    Mr. Tober. Yes.
    Senator Cornyn. Now, would this also apply to a nominee for 
the U.S. Supreme Court?
    Mr. Tober. Well, I do not know why it would not. The 
Committee believes--I am reading from our backgrounder, 
Senator--''The Committee believes that ordinarily a nominee to 
the Federal bench should have been admitted to the bar and 
engaged in the practice for at least 12 years.'' But if I can 
continue to finish the paragraph?
    Senator Cornyn. Sure.
    Mr. Tober. ``In evaluating the experience of a nominee the 
court recognizes that opportunities for advancement in your 
profession for women and members of minority groups may have 
been limited. Substantial courtroom and trial experience as a 
lawyer or a trial judge is important for nominees for both the 
appellate and the trial courts. Additional experience that is 
similar to in-court trial work, such as appearing before or 
serving on administrative agencies, or arbitration boards, or 
teaching trial advocacy or other clinical law school courses, 
is considered by the Committee in evaluating a nominee's trial 
experience. Significant evidence of distinguished 
accomplishment in the field of law may compensate for a 
nominee's lack of substantial courtroom experience.''
    Senator Cornyn. So just one last question in that vein. If 
you are a law professor, let's say, would that qualify as the 
kind of legal experience that would satisfy the 12-year rule?
    Mr. Tober. I think Louis Brandeis probably thought it did 
but--I do not mean to be cute about it--I would think if 
someone was teaching law it would be in a related sense, and it 
could well be considered as the distinguished accomplishment in 
the field of law that would compensate for the lack of trial 
    Senator Cornyn. OK, thank you very much.
    Senator Schumer. Just following up on John's, I have a few 
more myself. I understand this is not a rigid rule but sort of 
a guideline. Do you look for more trial experience for a person 
in the district court level than at the appellate court level? 
It seems to me a professor of law is better suited at the 
appellate--who has never practiced and never been on trial--
might be better for the appellate law than at the district 
court level.
    Mr. Tober. Senator, I can say for myself, having been on 
this Committee for 3 years before chairing it, I gave that 
active consideration. I thought that someone who was going to 
be sitting on a trial bench should understand the smell of the 
courtroom, so to speak, and that someone who is going to be 
sitting on an appellate bench could perhaps have come there 
from a slightly different place in their life's experience.
    Senator Schumer. OK. My other questions, if I might 
continue, Jeff, if you do not mind?
    Senator Sessions. Chuck, go ahead. I have a few, but you 
can go ahead while you are at it.
    Senator Schumer. How often do you recommend people 
positively without the 12-year experience? I mean are there 
five examples in the time you have been--how long have you been 
chairman, Steve?
    Mr. Tober. For about 3 months, Senator.
    Senator Schumer. So you have been on about three and a half 
    Mr. Tober. That is correct.
    Senator Schumer. And Mr. Ayscue--am I pronouncing that 
    Mr. Ayscue. Correct.
    Senator Schumer. How long have you been on?
    Mr. Ayscue. I was on the Committee for 3 years. I am an 
alumnus who was called back to active duty in the Van Tatenhove 
    Senator Schumer. And did your 3 years overlap, each of you?
    Mr. Ayscue. Yes.
    Mr. Tober. Yes.
    Senator Schumer. OK. So how many times in that time did you 
give someone a positive recommendation who did not have the 12 
years, out of how many? There may have been very few people 
recommended without the 12 years.
    Mr. Tober. Anecdotally, I know we have done it. I do not 
know that I can come up with the numbers. Ozzie, do you have 
any sense?
    Mr. Ayscue. I do recall several who were obviously 
outstanding and had substantial trial, intense trial 
experience, who did not have that many years in the practice, 
plus with respect to whom the Committee did not bat an eyelash 
    Senator Schumer. So in other words, if someone got out of 
law school, went to the U.S. Attorney's Office, started off 
doing trials, became a Bureau Chief and did that and got great 
recommendations for 8 years or 9 years, that would not stand in 
their way, just hypothetically, somebody like that who had done 
lots of trials, was a Bureau Chief and trial lawyer before 
    Mr. Tober. I am trying to think. I did the evaluation of 
Jeffrey Howard for the Circuit Court of Appeals in the First 
Circuit, and I believe that was sort of similar to his 
background. That is on a trial bench, obviously, but I think if 
you totaled up his active years in practice it was probably 
below 12, but he had many other things of a distinguished 
nature going for him, and he was found qualified.
    Senator Schumer. Right. And how often have you found people 
not qualified at least in your experience, who did not have the 
12 years in addition to Mr. Van Tatenhove?
    Mr. Tober. I would say that it was a very low number, but 
again, Senator, I do not know--we can probably get this 
information for you.
    Senator Schumer. You know, since you are going to do a 
written statement, if you could, that would be great.
    Mr. Tober. Let me suggest that I will ask our staff to come 
up with numbers from both of the questions you asked.
    Senator Schumer. Great. I think that is it.
    Senator Sessions. That is good. I remember Bonnie Campbell, 
that it had come up, from Iowa, and had never tried a case at 
all. But I do feel like this individual was involved pretty 
significantly in some litigation.
    First let me ask you, did you count the year--you did not 
mention it, but did you count the year that he was a clerk to a 
Federal District Judge?
    Mr. Tober. Ozzie, you want to answer that?
    Mr. Ayscue. I can answer that. After having four years, the 
Federal clerkship, first year, 4 years at Department of 
Justice, between 11 to 15 years ago, a 7-year hiatus when he 
was not actually practicing law, and the 4 years in the U.S. 
Attorney's Office in which he was a supervisor and not trying 
cases. I brought this to his attention, urged him to suggest 
avenues of inquiry that might help me evaluate any experience 
he had that might be considered a surrogate for actual trial 
experience. I looked at his exposure, his judicial clerkship 
for a trial judge, his work as a Congressional staffer, a 
member of the Attorney General's Advisory Committee, all of 
which seemed to enhance the overall gravatus of his resume, but 
none of these experiences other than what he observed during 
his clerkship, which was from 1989 to 1990, the first year 
after he finished law school, really involved anything that 
appeared to qualify as a surrogate for trial experience.
    Senator Sessions. But you would normally count, do you not, 
clerking for a Federal judge as just one of the 12 years?
    Mr. Ayscue. Yes, I would.
    Senator Sessions. That would make it nine, as I would add 
up here, four DOJ, four as a United States Attorney, and one.
    Let me just say this in general. I respect you for having 
standards. We do hope that you will try to apply them equally 
across the board whatever nominee comes forward. But I respect 
that, and it definitely provides valuable information to us as 
we evaluate nominees. I am one who believe that a nominee for a 
district judge should have some trial experience unless they 
have extraordinary other capabilities that they could bring to 
the office. So I do not dispute how particularly how you 
calculate it. But we in the Senate obviously have a different 
standard. We are charged with trying to determine whether or 
not this person would make a good Federal judge, and as you 
noted, there are a lot of positive qualities that he has been 
noted for.
    With regard to his trial record, it should not be, I think, 
diminished too much. We had a hearing yesterday or the day 
before, and we found that only 1.6 percent of civil cases go to 
    There has been a real change in the work of a Federal 
judge. They manage litigation, they manage discovery, pre-trial 
motions on summary judgment and those kinds of things. And 
cases are being disposed of well over 95 percent, and I think 
over 95 percent of Federal cases disposed of by plea.
    So he was in this Attorney General's honors program, in a 
Federal programs branch that was noted for handling especially 
complex and even precedent-setting cases. And he won the 
Department of Justice Special Achievement Award and he handled 
quite a number of cases; that a number of them settled, I don't 
think might be as significant, Mr. Ayscue, as maybe it would 
have been for a practicing attorney 20 years ago, 30 years ago, 
when I was starting out.
    But will you comment on that? I mean, he represented the 
Army-Air Force Exchange Service in a Title VII case, which is 
good experience for what they do in Federal court today. He 
represented the FBI in a large and complex Freedom of 
Information case, which tends to come up a lot, those 
regulatory matters.
    The Department of State he represented in a complex matter 
involving historic preservation regulations, the Foreign 
Missions Act, demolition of property owned by the Republic of 
Turkey. The Corps of Engineers he represented in a recreational 
use of property condemned as part of a waterway project for the 
    So he listed ten cases, but I don't think those were the 
only ten cases he ever handled, is that correct? I mean, these 
were just ten he listed as significant cases.
    Mr. Ayscue. He was asked to list the ten most significant 
litigated matters which he personally handled.
    Senator Sessions. Yes.
    Senator Schumer. And how many did he actually have trial 
experience on on that? You said that before, one or two, I 
    Mr. Ayscue. One.
    Senator Schumer. One, right.
    Senator Sessions. Well, yes, a trial, but when you--
    Senator Schumer. Jeff, I understand that. I mean, we are 
not here making the arguments.
    Senator Sessions. Sure.
    Senator Schumer. We just want to hear what the ABA has to 
say and then let each person read the transcript and evaluate 
it for him or herself.
    Senator Sessions. I think that--
    Senator Schumer. I mean, I am not going to get up and argue 
with you on this.
    Senator Sessions. All right.
    Senator Schumer. But let me say this: I mean, I would just 
ask, I guess, you, Jeff, and Senator Specter's staff person 
that the record be kept open so we can get other members who 
might wish to submit questions, and that this transcript be 
distributed to people.
    I just want to let you all know that I am not going to let 
this go through this afternoon. I mean, I think this is enough 
of an issue--I am not sure how I come down on it, but it is 
enough of an issue that we ought to wait until we come back in 
December. I don't think that does any undue harm, and so I 
would like the record to be kept open, members to submit 
questions, the ABA to submit a written statement. And then we 
will distribute it and dispose of this on the 12th of 
    Senator Sessions. All right.
    Senator Schumer [continuing]. When we return, or whenever 
it is, the 13th or whatever it is.
    Mr. Tober. Can I just ask a clarifying question?
    Senator Schumer. Yes.
    Mr. Tober. Would you like us to be submitting our present 
statement in advance of the questions or all at once?
    Senator Schumer. Probably do it, yes, as soon as you can. 
The written statement should be as soon as you can and the 
answers to the questions anytime up to December 12th, I guess.
    Mr. Tober. We would be happy to do that.
    Senator Schumer. OK.
    Senator Sessions. One final question I would ask and that 
is with regard to the role of a United States Attorney in the 
Eastern District of Kentucky. As a United States Attorney, you 
also are responsible for everything that occurs in the office 
and are, by necessity, drawn into the plea negotiations, the 
settlement negotiations, the legal issues that are pending and 
how they may come out and how that may affect the strategy that 
the attorneys may have.
    Did you consider that, that even though he may not have 
been a trial United States Attorney that he gained sometimes 
broader experience by being responsible for supervising a wide 
variety of cases that came before him?
    Mr. Tober. Do you want me to answer that, Ozzie, or would 
you like to answer it?
    Mr. Ayscue. The answer is we certainly did. That is part of 
the mix. One of the things I found was that whether or not his 
predecessors tried cases depended on whether they had been 
trial lawyers before they became the United States Attorney, 
because he had some predecessors who were well known for cases 
as the U.S. Attorney and others who were administrators. But we 
did take that into consideration very much so.
    Senator Sessions. Well, it is a just a factor, I think, 
that we can all give evaluation to.
    Chuck, on written questions, why don't we try to have those 
questions in within 1 week? Otherwise, we wouldn't be able to 
get the answers back probably in time for the 12th.
    Mr. Tober. Senator Sessions, could I just offer one other 
    Senator Sessions. Yes.
    Mr. Tober. And I think it comports with what you are asking 
us. In our backgrounder we define professional competence in a 
very broad, embracing way. It encompasses--and I am reading 
from it--''such qualities as intellectual capacity, judgment, 
writing in the analytical ability,'' and then on it goes, 
``through knowledge of the law and breadth of professional 
    We don't necessarily say you have to be a trial lawyer to 
be a trial judge. I want to make that clear if it wasn't.
    Senator Sessions. I know you haven't in the past.
    Mr. Tober. I mean, someone could be a real estate lawyer or 
a probate lawyer. If they bring special talents to this and 
they are going to serve a lifetime on the bench and they are 
fair and honest and open, I mean you can't ask for much more. 
But this one caught the attention of this committee, with the 
understanding that it was a difficult vote, because--
    Senator Schumer. Hello. I am sorry.
    Mr. Tober. I am sorry--just because of the nature of the 
experience demonstrated in the report.
    Senator Sessions. Thank you for the time that you give. It 
is a public service. The insight of the bar is a valuable to 
us. Obviously, we have our own ultimate responsibility under 
the Constitution to vote aye or nay to the President's nominee, 
and we will consider that carefully.
    So we will have any questions in by December 5th. Then we 
will be in shape to close this out, I think.
    Senator Schumer. Well, I just wanted to go over that. I had 
to drop off for a second because I had to take another call. So 
we are saying the ABA report--your written report gets to us by 
next Friday. Is that what we were saying?
    Mr. Tober. You give me a deadline, Senator, and we will 
make it.
    Senator Schumer. OK. Well, how about by Wednesday, is that 
all right? I mean, Thursday and Friday are--is Friday better 
for you? I don't care.
    Mr. Tober. We will have it to you by Wednesday, by the end 
of the day.
    Senator Schumer. By Wednesday, and then let's have the 
questions submitted by the following Monday. And that way you 
can have a week to answer them and that will still give people 
a week to look at it all by the time the 12th rolls around.
    Does that sound OK, Jeff?
    Senator Sessions. The questions that I am referring to, I 
think, are the questions from any of the Senators--
    Senator Schumer. Yes, me, too.
    Senator Sessions [continuing]. To the nominee by December 
5th--I mean the ABA.
    Senator Schumer. Yes, that is right.
    Senator Sessions. OK.
    Senator Schumer. So in other words--I don't have a calendar 
in front of me, but by Wednesday the report comes out. Senators 
submit questions by the following Monday, the 28th.
    Senator Sessions. Yes.
    Senator Schumer. And your answers come back the 5th and 
that gives people a week before the 12th.
    Senator Sessions. It makes good sense.
    Senator Schumer. OK, great.
    Senator Sessions. Thank you. We appreciate your--
    Senator Schumer. Mr. Tober and Mr. Ayscue, thank you very 
much for taking the time here. And I just want to tell you, Mr. 
Tober, I completely agree with you that we should not do this 
this way. We had unusual circumstances, but I am going to try 
to make sure we do it the normal course henceforth.
    Mr. Tober. I appreciate that very much, Senator. Thank you.
    Senator Sessions. Thank you all.
    Senator Cornyn. Thank you, gentlemen.
    Senator Schumer. Thanks, everybody.
    [The conference call was concluded at 3:39 p.m.]



                      TUESDAY, NOVEMBER 15, 2005,

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff 
Sessions, presiding.
    Present: Senators Sessions and Durbin.

                      THE STATE OF ALABAMA

    Senator Sessions. The meeting will come to order.
    I am delighted to welcome and chair this panel of 
outstanding judicial nominees, two from my home State of 
Alabama. I will defer my opening remarks until other Senators 
arrive, and they may want to speak also.
    With the appearance of Senator Shelby, our senior Senator 
from Alabama, I would like to recognize him at this time, and 
would just note that Senator Shelby is a skilled attorney who 
has practiced law in his career before his governmental 
experience. He understands the importance of the Federal 
Judiciary. He understands what it is like for a lawyer to 
practice before a judge, and he takes these matters very, very 
    Richard, it is a pleasure for me to have you here ando 
receive your remarks at this time.


    Senator Shelby. Thank you, Mr. Chairman. Senator Sessions, 
I appreciate working with you as my colleague, and I also 
appreciate the work you do on the Judiciary Committee. We are 
on different committees. You are a Chairman of a Subcommittee 
on the Armed Services Committee, Chairman of the Subcommittee, 
and of course a member of the Judiciary Committee. I am on the 
Appropriations Committee and the Banking Committee, but we 
cannot serve on the same Committees. So I think overall we try 
to work together.
    I am here today, I am just going to focus on Keith Watkins, 
if I can, because I do not think Kristi needs any introduction 
to you or to the Judiciary Committee. But she has got my 
blessing, as you well know, both of us.
    I want to thank you for allowing me to be here today and to 
introduce Keith Watkins. Keith has been nominated by President 
Bush to serve as a judge on the U.S. District Court for the 
Middle District of Alabama. I am also proud to support his 
nomination. I have known him for many, many years, since he 
basically was in law school, and I knew he was practicing some 
in Tuscaloosa.
    I believe he will make an outstanding Federal judge. He is 
a native of Alabama. He received his undergraduate degree from 
Auburn University, his law degree from the University of 
Alabama. He has been in private practice of law, practicing 
law, Senator Sessions, every day since 1976, and is currently a 
partner at the firm of Calhoun, Faulk, Watkins and Faircloth in 
Troy, Alabama.
    He has represented his clients, everybody believes, in a 
fair and deliberate manner, and I believe he is an intelligent 
and honest man who will serve our Nation well.
    I encourage my colleagues to treat him fairly, and to give 
him an opportunity to show you that he will interpret the law 
and not make the law. I believe he will also prove to this 
Committee and to the Senate and to the people of Alabama on his 
ability to be fair and impartial in hearing cases before him, 
should he be allowed to serve on the U.S. District Court for 
the Middle District of Alabama.
    Again, I want to thank you for holding this hearing today, 
and I hope that you will vote him out of this Committee and 
allow the full Senate to consider his nomination.
    Mr. Chairman, I also want to recognize his family. He is 
joined here by his wife, Terri, his two children, Scott and 
Emily, as well as his parents, Harold and Joanne Watkins.
    I am glad to support him, and I believe I am allergic to 
something here.
    Senator Shelby. Thank you very much.
    Senator Sessions. Very good, Senator Shelby. I know you 
have to chair the hearing for the new Federal Reserve Chairman. 
What a special event that is also, very important nomination. I 
think we have a good nominee, and I know your Committee will 
delve into that deeply.
    Thank you very much for your comments.
    Senator Shelby. Thank you.


    Senator Sessions. I also am pleased to share with Senator 
Shelby his remarks about Keith Watkins, but I would like to say 
that welcoming Judge Kristi DuBose to the Committee marks one 
of the best days of my Senate career. In most instances when 
you introduce a nominee, you know his or her reputation and 
legal acumen based upon recommendations by others, but with 
Judge Lee, I have firsthand experience. From my experience, I 
know that she is first rate in all issues across the board.
    She graduated magna cum laude from my alma mater, 
Huntingdon College, where she remains active in the Alumni 
Association, I am pleased to see, with a double major in 
history and business. In 1986 she graduated from the Emory 
University School of Law with distinction in the top 10 percent 
of her class.
    After law school she clerked for a Federal District Judge 
in New Orleans, Judge Beer, for the Eastern District of 
Louisiana, which is very good experience for the job she holds 
today, since she worked for the very kind of judge she would 
now be.
    Then in August 1990, I made the wise decision to hire her 
to be an Assistant United States Attorney in the Criminal 
Division in the Southern District of Alabama. During her 3 
years of service in the United States Attorney's Office, Judge 
Lee excelled in every capacity. I know that during that period, 
she tried close to, if not more, than 20 jury criminal cases, 
filed an equal number of appeals before the Eleventh Circuit 
Court of Appeals, writing those briefs herself. So she has been 
exposed to a great deal of the aspects of Federal practice as 
an attorney.
    Remember in 1991 when she successfully prosecuted, at the 
time, one of the largest marijuana cultivating cases in the 
United States. She also prosecuted bank fraud cases, conspiracy 
cases and public corruption cases. In one case she prosecuted 
as a sole prosecutor six defendants on the charge of 
manufacturing and distributing methamphetamine.
    After spending a brief stint in a District Attorney's 
office in Covington County, Alabama--a good experience to have 
that perspective--in 1994, when I was elected to the Attorney 
General's job of the State of Alabama, she joined me as one of 
my Deputy Attorney Generals. She served there for 2 years, 
focusing primarily on important public corruption cases and 
working with the State legislature to implement a Speedy Trial 
Act, a General Fraud Statute, and to revamp the State ethics 
    When I was fortunate enough to be elected to the Senate, I 
brought Kristi with me to serve as my Chief Counsel on this 
Judiciary Committee, and she also served as my counsel on the 
Senate Ethics Committee. And by the way, there is no one I know 
that has any higher standards of probity and ethics than Judge 
Lee. I know that in this capacity, as Senate Judiciary 
Committee staffer, she won the respect of colleagues on both 
sides of the aisle. In fact, when I mentioned to Senator Leahy, 
our Ranking Member, that she might be under consideration for 
this appointment, he told me he would be pleased to lend his 
    In January of 2000, Judge Lee was appointed a Magistrate 
Judge in the Southern District of Alabama, so for the past 5 
years she has been doing the actual job of judging, and doing 
it well. In the Southern District of Alabama, the Magistrate 
Judges, pursuant to an agreement by the parties, can actually 
try a case and carry it all the way through the trial process. 
She has full experience as a Federal Judge. She will be able to 
hit the ground running, once confirmed.
    I have talked to the judges in the Southern District, and I 
know that they look forward to Judge DuBose joining them in 
this new capacity. They tell me that she has the proper 
judicial temperament, is faithful to the rule of law, and a 
pleasure to work with. Of course, they did not have to tell me 
those things because I know it firsthand.
    Judge DuBose will do well on the Southern District. Her 
integrity is impeccable. She has a keen intellect, a respect 
for the rule of law, and I look forward to supporting her 
    Senator Obama, it is great to have you with us. I know you 
have a busy schedule. I have some remarks I would like to make 
about our nominee, Keith Watkins, from Alabama, but I will 
withhold those at this time, and would be delighted to hear 
from you on nominee Virginia Kendall. Thank you for sharing 
your time with us.


    Senator Obama. Thank you so much, Senator Sessions. I very 
much appreciate the opportunity. Senator Durbin is waylaid. He 
will be here soon, but I wanted to go ahead and take the 
opportunity to introduce Virginia Kendall, who is the nominee 
to the U.S. District Court for the Northern District of 
    I would like to first of all acknowledge that our hopefully 
soon-to-be judge has her family here today, her daughter and 
her son, two of Virginia's three children, if I am not 
mistaken. We have her husband, mom and brother, and a sister, 
so we have got the full complement here.
    Ms. Kendall. is a native of the great State of Illinois. 
She spent her entire career working in the State. She received 
her bachelor's and master's degree from Northwestern 
University, her law degree from Loyola University.
    It is extraordinarily fitting that Ms. Kendall has been 
nominated to the Northern District since she severed as an 
intern for District Court Judge George Marovich while in law 
school, and after graduation worked in his office as a clerk.
    After he clerkship, Ms. Kendall joined the U.S. Attorney's 
Office in Chicago, where she has dedicated herself to 
representing the interests of some of the most vulnerable 
members of our society, namely our children. As Deputy Chief of 
the Criminal Division, she coordinates Federal and State 
investigations of child exploitation cases, and as Senator 
Durbin I am sure will mention, she has prosecuted some of the 
ground-breaking cases around the Nation on this issue, 
including the Nation's first Internet kidnapping case. Not only 
has Ms. Kendall distinguished herself as an outstanding lawyer 
and public servant, she is an outstanding member of the 
community. She has been active in community service activities, 
experiences that I believe will inform her work as a judge and 
will benefit both plaintiffs and defendants appearing in her 
    Ms. Kendall. brings to the bench what she has brought to 
her long legal career, boundless energy, a sense of fairness, 
and a strong commitment to the rule of law.
    Just to make mention, Mr. Chairman, of how we came about 
this decision, Senator Durbin and myself interviewed a number 
of candidates. We have a wonderful tradition in Illinois of 
bipartisanship in trying to select appropriate judicial 
nominees. I think it is fair to say that Senator Durbin and I 
were both extraordinarily impressed with not only Ms. Kendall's 
wonderful resume, but more importantly I think, her enormous 
passion for the issues that she has worked on. She is a true 
advocate, in the best sense of the word, and I think her 
temperament is one that will be very well suited to the bench.
    I am just so proud that she is here with us today, and I 
know Senator Durbin shares my pride.
    Let me just thank the Committee for holding this hearing, 
and I look forward to Ms. Kendall's swift confirmation.
    Senator Sessions. Thank you, Senator Obama, for those good 
words. We hear good reports on Ms. Kendall, and look forward to 
the hearing proceeding, and I am sure to confirmation. We would 
be glad to have you stay, but if you have to go, we will 
    I will recognize Senator Durbin to make some comments, and 
he is a skilled attorney himself, a passionate advocate for the 
legal system in this country, and I am always pleased to work 
with him.


    Senator Durbin. Thank you, Senator Sessions. I want to 
thank you for chairing this, and especially thank Senators 
Specter and Leahy. We are near the end of the session. Any 
excuse will do not to have a hearing, and yet they were kind 
enough to give us this hearing for these judicial nominees. I 
think it reflects the fact that they are people of quality, 
they are nominees that come to us without political 
controversy, and we feel confident that the Senate, when 
hearing your qualifications, will join us in supporting them.
    I also want to join with Senator Obama, and thanking him 
personally, for his role in this process. And, Senator 
Sessions, I would like to tell you that we had House input as 
well. Speaker Dennis Hastert, because he is the ranking 
Republican on the House side, was an important part of the 
process. Most of you know that the President approves nominees 
for the court, and usually the highest Ranking Member of his 
party is part of that process. I had agree long ago with 
Senator Fitzgerald, a Republican, my Republican colleague for 6 
years, that we would share this task, and that every fourth 
nomination would go to the minority Senator, a Senator not 
likely to have a nomination otherwise. Senator Fitzgerald 
appointed several people when there was a Democrat in the White 
House, and I appointed several with a Republican in the White 
House, with his concurrence.
    And so I turned to Speaker Hastert and said, ``Now you are 
the ranking Republican. Shall we carry on in this tradition?'' 
He said yes. I noted to him that the next vacancy was mine, so 
it was a real test as to whether it would be bipartisan. It was 
completely. From start to finish, through all the nominees, 
Speaker Hastert was involved in reviewing their background, 
preparing questions, having the final word on the names that 
were submitted.
    The White House asked--and this was a little unusual--that 
we submit two names so that they could choose between them at 
the White House level. We sent the names of two extremely 
qualified people. I felt confident either one could do this job 
and do it well. And the White House made the decision to choose 
Virginia Kendall. I could not be happier.
    She is an exceptional person. You have heard about her 
background. You certainly heard about her family, and I hope 
you heard about her mom, who is here today, and I had a chance 
to meet with her earlier and her wonderful family, and as she 
said, the only regret is that her dad could not be with us, and 
I wish he could be, but I bet he is looking down and smiling 
that his daughter has reached this level of achievement.
    She has done such a great job, not only in working with her 
family and doing things that are necessary in her community and 
neighborhood, but also becoming someone highly respected in the 
legal community. It is amazing all of the accolades that poured 
in when she was nominated, and they came from so many different 
levels. The first I heard of her was from some of her former 
students in law school, who thought she was the best professor 
they had. That speaks very well of Virginia Kendall's ability 
not only to understand the law, but to teach it, which is part 
of this learning experience.
    She and her husband have been involved in Cristo Rey Jesuit 
High School in Chicago, which is an amazing success story of a 
high school in the area of Pilson, low income, Hispanic area 
that has just been a dramatic success, and it speaks well of 
her family commitment to them.
    One of her biggest supporters is her boss, Patrick 
Fitzgerald, well known to most as a U.S. Attorney in the 
Northern District of Illinois, in addition to a few other 
assignments. He has written about her, and I want to quote, 
``Virginia Kendall,'' he says, ``I can also assure you that 
Ginny is a warm and compassionate person who is very attentive 
to the human needs of those she works with and supervises. 
Ginny's combination of legal talents, experience as a 
prosecutor, supervisor and instructor, and commitment to 
bettering the communities most in need of help, would stand her 
in great stead if she were selected as a Federal Judge in this 
district.'' That is from her boss, and you expect kind words 
from a boss or she might not be working there.
    But we also heard some great words from her opposing 
counsels, attorneys who were on the other side in a lawsuit, 
and what they had to say, some of them, was just nothing short 
of amazing. One of her opposing counsels described her as, 
quote, ``honorable, decent, ethical, someone with an ideal 
temperament.'' As an attorney who has practiced before judges, 
I love to hear that last phrase, ideal temperament.
    Another opposing counsel said Virginia was, quote, ``down 
to earth, honest, straightforward, reliable and full of 
    Mr. Chairman, it does not get much better than that. I am 
honored to join Senator Obama and Speaker Hastert in presenting 
her nomination to the Senate Judiciary Committee. Thank you.
    Senator Sessions. Thank you, Senator Durbin.


    Senator Sessions. I am also pleased to introduce to the 
Committee, Keith Watkins, a native of Pike County, Troy, 
Alabama, and an individual destined to be an outstanding 
jurist. He graduated from Auburn University in 1973--had a 
pretty good game this weekend. Got his law degree from 
University of Alabama in 1976--which was not so good for 
Alabama this weekend.
    Dick, you watched the Auburn game Saturday, I believe you 
told me.
    Senator Durbin. Yes.
    Senator Sessions. I dare say there are few people who bring 
more wealth of actual legal and human experience to the 
District Court than will be brought by Keith Watkins. He is 
more than a practitioner, which he has done exceedingly well 
for many years. He is an arbitrator and a mediator. This 
alternative dispute resolution experience is the kind of 
experience I believe that could be helpful to the District 
Court, and I have no doubt it will be an asset to the parties 
and other judges in the Middle District of Alabama.
    Since graduating from law school in 1976, Mr. Watkins has 
been in the private practice of law except for a 3-year stint 
when he served as a public defender for the city of Troy 
between the years of `80 and `83. That practice has panned the 
spectrum of legal issues. He has represented criminal 
defendants, filed cases on behalf of plaintiffs, defended 
businesses from lawsuits, engaged in real estate law, as well 
as business and estate planning, drafted wills, handled 
domestic cases and represented foundations, churches, 
businesses and political organizations.
    In short, he is a super legal practitioner. In recent times 
Mr. Watkins has placed an emphasis on mediation and has 
mediated more than 200 cases. I believe that this experience is 
something that will help him help parties resolve disputes 
quickly without unnecessary delay and cost.
    He has done more than his share of community service, both 
locally and abroad, from building houses for Habitat for 
Humanity and working to start a local Boys and Girls Club, to 
doing carpentry work on the Jamaica Baptist Women's Union 
Orphanage in Jamaica. I believe he has made a number of trips 
outside the country to assist others. His pro bono record is 
very impressive.
    When I first met him, he told me he had just completed a 
will codicil for an elderly lady, and that her payment was in 
the form of baking him a pie.
    Senator Sessions. I have been impressed with Mr. Watkins 
since Senator Shelby brought his record to my attention. I have 
talked to judges and lawyers in the Middle District, and they 
tell me he will do an outstanding job. He has a reputation for 
character and integrity and hard work. I have not met anyone 
that has made any complaint against him.
    So I am pleased to add my strong support to Mr. Watkins. He 
comes from the heart of the Middle District of Alabama. I know 
he is excited about the opportunity of this position.
    Both of the Alabama nominees, from my experience and 
investigation are hard working; they are intelligent; they have 
great integrity; they can manage a caseload; and I think they 
both can make a decision, which is an important thing in a 
judge. So I am pleased to have them here.
    We would ask that the three of you, if you would, step 
forward, and before you sit down, if you would raise your right 
hand, I will administer the 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?
    Ms. Kendall. I do.
    Judge Dubose. I do.
    Mr. Watkins. I do.
    Senator Sessions. Thank you. Please take your seats.
    I know Senator Durbin had a number of things on the floor, 
but I will recognize him at this time to go first.
    Senator Durbin. Thank you very much, Senator Sessions. It 
is going to be tough to ask hard questions of Virginia Kendall, 
because I have asked her these questions and I know her 
answers, and so I will direct them to the panel, just kind of 
general statement of your feelings about the role of a judge. I 
mentioned earlier the question of temperament. Senator Strom 
Thurmond used to always make a point of raising that question 
when people were about to take a lifetime position on the 
Federal bench. What he was looking for, and I think we all look 
for, is some sort of indication of your feeling about your role 
in this judgeship and how treating clients and attorneys is an 
important part of it.
    Mr. Watkins, as the man who received the pie as your 
compensation, I know that you are a humble man, so let me ask 
you to start off if you would, please.


    Mr. Watkins. Thank you, Senator Durbin. I do appreciate the 
President's confidence in me to nominate me for this position, 
and the Committee having this hearing, and thank you for your 
    I think temperament is the key ingredient for the running 
of a courtroom and for engendering respect for the Judicial 
Branch among the folks who come forward. A former partner of 
mine sent me an e-mail a couple of weeks ago, and he said that, 
remember, should I be confirmed, that people will remember 
being mistreated long after they have forgotten being ruled 
against. And I believe that is the truth, and as a practicing 
attorney for 29 years, in I cannot tell you how many 
courthouses, with few exceptions I have been treated the way I 
needed to be treated and wanted to be treated as an attorney, 
and I would do likewise. I can appreciate that situation with 
attorneys and litigants. They will receive fair treatment from 
me and equal justice under the law.
    [The biographical information of Mr. Watkins follows:] 

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    Senator Durbin. Judge DuBose?


    Judge Dubose. Thank you, sir. For the last 6 years it's 
been my job to try to provide a place for the litigants and the 
attorneys to be able to come and get a fair and equitable 
hearing. And they leave the courtroom, I hope--my goal--when 
they leave the courtroom is they understand that I have applied 
the law the way the legislature intended me to apply the law.
    [The biographical information of Judge DuBose follows:] 
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    Senator Durbin. Thank you.
    Ms. Kendall?


    Ms. Kendall. Thank you, Senator, and thank you for your 
kind introduction.
    It is foundation for our system that people have access to 
the courts and that they feel that they can address their 
grievances to the court, and that can only be done if they are 
assured that their rights will be protected, that they are 
assured that they will be treated with respect when they appear 
before the judiciary, and that is the type of judge that we 
need in the judiciary, the type of judge that is only 
appropriate in this system. Thank you.
    [The biographical information of Ms. Kendall follows:] 

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    Senator Durbin. Let me just ask one other question if I can 
in the short time remaining.
    Senator Sessions knows that one of my heroes is an Alabama 
Federal Judge by the name of Frank Johnson, and when I visited 
Alabama with John Lewis, Congressman from Atlanta, Georgia, and 
he took me to Montgomery and Birmingham and Selma and talked 
about that stormy period of civil rights emergence in America. 
He said one person who does not receive enough credit is Frank 
Johnson, who had the courage to rule that we could have a march 
in Selma.
    For his courage, Judge Johnson was ostracized by many in 
his community, faced threats on his life, threats on his 
family. Courage is an element which we all like to believe we 
have when it is needed, but I would like you to address that 
element because there are times when a judge has to do what is 
right even if it is unpopular.
    Ms. Kendall?
    Ms. Kendall. Thank you, Senator. Well, certainly as a judge 
you're always addressing every issue from the perspective of 
the precedent that came before you. And so in most instances 
you will have the ability to rely on that precedent and feel 
comfortable with a decision. And in those unique circumstances, 
those very unique areas where for once there is an issue that 
you need to address probably by first impression, for example, 
I think courage will come into play to apply the law, to look 
to the legislative intent, determine what was necessary and to 
make that correct decision.
    Senator Durbin. Judge DuBose?
    Judge Dubose. Well, it's been my experience that I had to 
learn that I had to give up the hope of popularity back in high 
school, and that I have to have the courage to apply the law 
the way you intended, and that's what I have been doing, and 
that is what I intend to continue if I am fortunate enough to 
be confirmed.
    Senator Durbin. Mr. Watkins?
    Mr. Watkins. Senator, I am a witness to that era. I lived 
in the Middle District at the time, and actually, 
Representative Lewis is from my county. I don't know him 
personally, but I know his brothers who live in Troy.
    I have to say that I admire that level of courage, and that 
I think that is an absolute prerequisite to a judge at this 
level. And I would give you my word that I have the courage to 
do exactly what I believe is right.
    Senator Durbin. Thank you.
    Thank you, Mr. Chairman.
    Senator Sessions. Good questions, Senator Durbin. 
Oftentimes the choices become difficult, and it will be a 
lonely time for you, but we believe you have those qualities of 
integrity and character and strength of conviction to do the 
right thing. It is interesting that we have discussed Rosa 
Parks and her death in the last week or so, and gone through 
that, and talk about Judge Frank Johnson's role in that first 
case, and the courthouse that he presided in so long, Judge to 
be--we think--Watkins will be serving in.
    I forgot to ask you to identify your families. Ms. Kendall, 
would you take a moment to identify for us and introduce us 
those that are with you?
    Ms. Kendall. Thank you, Senator. I appreciate that. I have 
a large contingent from Illinois. I have my husband, Preston, 
almost 25 years; and my son, Preston; my daughter, Maeve, who 
came down from Madison, Wisconsin; and I have another son, 
Connor, who is studying hard up at Marquette today, and is here 
in spirit; my mother, Marie Cowhey; and my brother, Jim Cowhey; 
and one of my sisters, Cathy Cowhey; and two good friends, John 
and Kris, Krasnodebski and Boyaris.
    Thank you for having us.
    Senator Sessions. Very good.
    Judge DuBose?
    Judge Dubose. Thank you. I have with me my daughter, 
Hannah, who turned 13 yesterday; and my husband, Ben Hatfield 
of 48 hours; friend Chuck Diard--
    Senator Sessions. Making a number of lifetime commitments.
    Judge Dubose. In 1 week. Gail Linkins, Sheila Jacoby and 
Lisa Welch.
    Senator Sessions. Very good.
    And Mr. Watkins?
    Mr. Watkins. Yes, sir. I have my wife, Teresa; and my 
daughter, Emily from Nashville; son, Scott Watkins and his 
fiancee, Jenny Webb; my nephew Jacob Watkins--stand up, Jacob--
and his father, my brother, John Watkins; and my father, Harold 
Watkins, a Navy veteran and a member of the greatest 
generation; and my mother, Joanne Watkins; and my uncle, T. Bob 
Davis; and good friends Sam and Jill Casey from up here; and 
Todd and Pam Perlstein from Troy, Alabama.
    Senator Sessions. Very good. Thank you for introducing 
those for us.
    I would like to pursue a little bit more about the first 
question that Senator Durbin had, and to seek a commitment from 
you that as Judge Thomas in Mobile used to say, ``Remember, you 
are appointed, not anointed.'' And each of you, we hope, will 
serve quite a long time. Have you given thought to your role as 
a servant; yes, a courageous tough decisionmaker managing the 
court, but also as a individual who serves the public and the 
parties that come before it, and would you share some thoughts 
about that?
    Ms. Kendall. Thank you, Senator. I have been privileged to 
serve only in the public sector in the Northern District of 
Illinois, in Chicago, for my entire career. And I have been 
privileged to serve as an Assistant United States Attorney. And 
each day when I--even on the most hectic of days, when I am 
running from courtroom to courtroom, there are moments when I 
sit back and I look out at the courtroom and I think, This is 
remarkable, this is really remarkable that the Founders thought 
of this and it is really working and it's playing out. Every 
day, little justices and very significant justices every day.
    And I can only think that it would be the greatest of honor 
to serve as a judge within that system, and I believe that over 
the years working in the prosecutor's office of service that I 
will have the next level of service in that position if the 
Committee and the Senate would be so kind as to move me to that 
next level of service.
    Senator Sessions. Well, good.
    Judge DuBose?
    Judge Dubose. I certainly made the commitment to continue 
what I hope I've been doing for the last 6 years. I practiced 
in the Southern District of Alabama in front of some very fine 
judges, and I appreciated the way I was treated, and I tried to 
extend the same respect to the attorneys as well as the 
    I realize every day when a party appears in front of me, 
they, too, have families--daughters, husbands, wives--and this 
affects their life. This is probably the most important thing 
that is happening in their life, and I should pay them 
attention and I should pay them the respect that they deserve. 
And that is what I hope to continue to do, and I make that 
commitment to you.
    Senator Sessions. Good. Mr. Watkins?
    Mr. Watkins. Thank you, Senator. I echo the remarks of my 
colleagues. The only thing I would add would be that there is a 
model of leadership called servant leadership, and that is a 
model I subscribe to. I think that's the best form of 
leadership. And I think by serving, that engenders respect for 
the system and for the court and for the decisions of the 
court. And I give you my commitment to be a servant leader.
    Senator Sessions. Judge DuBose, we are going to have a 
hearing later this week on the Federal judiciary and the 
caseload that they carry. And one of the things we will discuss 
is the role of the magistrate judge. You have been a magistrate 
judge now over 5 years. What thoughts have you to share with us 
about how you might use a magistrate judge or how the 
magistrate judges are used in the Southern District of Alabama?
    Judge Dubose. Well, in the Southern District of Alabama, I 
have had the opportunity to be what we call fully utilized. We 
are allowed to participate in all cases. I handle all discovery 
in all civil cases that are assigned to me. I am often--if they 
consent to me, I even try the civil cases.
    Senator Sessions. If both parties consent, then you 
sometimes try those cases as a Federal district judge would.
    Judge Dubose. I sit as a district judge to try those cases. 
In criminal cases, we handle from the arrest, search warrants, 
arrest warrants, from arrest all the way through sitting, 
presiding over the jury selection, the natural jury selection. 
Then it goes to the district judge. And I have handled summary 
judgments, motions to remand, motions to dismiss on what we 
call a report and recommendation, where basically we do the 
legal research and we write the opinion and we give that report 
and recommendation to the district judge.
    The parties are allowed an opportunity to object or further 
comment, and the district judges often adopt the report in full 
without revision.
    So I have been given a lot of opportunities. It is very 
helpful. In the Southern District, as you well know, we only 
had one district judge for a time period, and the magistrate 
judges were allowed to participate fully in the system.
    Senator Sessions. Are you a believer in that? Do you 
recommend that other Federal judges use magistrate judges more?
    Judge Dubose. I think it's the most efficient way to move 
the court docket and to give the parties--we're able to give 
most of our parties a trial within a year, which is probably a 
record. I need to ask my clerk of court here, but we move the 
cases and it is because of the magistrate judges and their help 
that we are able to do so.
    Senator Sessions. Ms. Kendall, have you done much work 
before a magistrate? Have you got any thoughts--well, first of 
all, I understand when you say ``full utilization,'' in the 
Southern District magistrates are allowed to do almost 
everything that----
    Judge Dubose. Everything that the statute and the 
Constitution allows us to do.
    Senator Sessions. I don't know how broadly they are used in 
Northern Illinois, but do you have any thoughts on that?
    Ms. Kendall. Yes, Senator. We have a very talented 
magistrate judge group in Chicago. The only difference, it 
appears to me, from what Judge DuBose said is that we don't 
have magistrate judges do jury selection. That would be only 
for the district court judge, if it was a felony case. Other 
than that, all of the other issues that she mentioned are 
issues that we also present, and in my clerking years, I know 
that it was a wonderful thing to be able to rely on some of 
these very seasoned civil litigators to resolve discovery 
disputes and other matters and write the reports and 
recommendation, and they always moved the case along at a 
faster pace. So they are very efficient and helpful to the 
district court judge.
    Senator Sessions. I tend to agree. We do not want to have 
an exponential increase in the number of Article III judges. 
One way to do that is to allow some of the work to be done by 
the magistrate judges, also providing ultimately that right of 
every litigant to be before an Article III, senatorially 
confirmed, lifetime-appointed Federal judge.
    Mr. Watkins, you have been a senior partner in a firm, and 
you have had lots of different works and clients and demands on 
your time. I believe that case management is an important 
aspect of a good judge. You have practiced before probably 
hundreds of judges, appeared before a hundred or more, probably 
several hundred judges in your career. What are your thoughts 
and what commitment can you give us that you will manage your 
docket, make sure that people have a prompt ruling when 
appropriate, and that justice is dispensed as speedily as 
    Mr. Watkins. Thank you, Senator. I have had the experience 
in court, as I shared with you before, of a case being delayed 
many years for a decision after it was tried. And I think not 
to be just trite, but justice delayed is justice denied, in 
criminal cases and in civil cases.
    You don't make it in a small-town practice if you don't 
manage your work. I don't have law clerks. I don't have 
paralegals. The witnesses, I interview the witnesses, I write 
the briefs, I do the pleadings, I try the case, handle the 
appeals, whatever comes up.
    So I have 29 years of surviving by managing my own personal 
docket. I can't tell you how delighted I am to think, should I 
be confirmed, that I would have a staff to help with that.
    Mr. Watkins. Including law clerks. And so I give you my 
commitment to keep the docket current. I understand there are a 
lot of cases already there for refer to Judge ``X.'' There are 
over 250 already assigned to Judge ``X.''
    Senator Sessions. And be sure that all the dogs will be 
assigned to Judge ``X,'' too, when each of you get there. That 
is part of the ritual, I think.
    Tell us, Mr. Watkins, about your observations on mediation 
that maybe our other nominees would benefit from, and also we 
will be thinking about that perhaps as we go forward this week 
to discuss the Federal judiciary's caseload.
    What are your observations and insights from your extensive 
mediation experience?
    Mr. Watkins. First, I will note that our judges in the 
Middle District do encourage mediation, and it's a very active 
practice. I have mediated several Federal cases. Probably a 
majority of my cases have been State cases.
    Mediation is assisted settlement negotiation. Senator, 98 
percent of cases in the Federal system, civil jury cases, are 
not tried. A lot of them go out on summary judgment. But only 2 
percent of the cases, according to current statistics, are 
tried; in Alabama State courts, only 3 percent.
    Unfortunately, a lot of cases settle on the courthouse 
steps after expense, time, delay, aggravation, tempers, and 
those kinds of things. And I like to tell litigants that that 
is not an atmosphere of the courthouse that you would buy an 
old pick-up truck in. Why would you settle a major case in that 
kind of an atmosphere?
    Mediation takes you into a private office, usually, or into 
private rooms in the courthouse, separate the parties, and do 
the Henry Kissinger back-and-forth to convince them of why it 
is necessary--or why it is appropriate to settle a case.
    Each side has a good advocate. As a mediator I advocate, 
too. I advocate settlement because that is the probabilities on 
the case. It is a good thing, and Alabama was actually late 
coming to a lot of use of mediation, but it will help 
tremendously keep the dockets clear.
    Senator Sessions. Is there time in the process when a 
Federal judge could initiate the appointment of a mediator? Do 
you have any thoughts on that?
    Mr. Watkins. Yes, sir, the magistrate judges handle that in 
our district, and private mediators like myself do likewise, 
usually by agreement of the parties, and they are paid 
privately by the parties. But at some point in mediation or at 
a point when the parties can agree to it--I'm sorry, at some 
point in discovery or at a point when the parties can agree to 
it is when it should be done. When discovery is relatively, 
roughly complete, if the plaintiff has survived the motion for 
summary judgment, then it's a good time for mediation at that 
time. The parties should be encouraged prior to that to cut 
expense in the judicial system and in the private litigation 
    Senator Sessions. Ms. Kendall, you, like Judge DuBose, had 
the honor of standing up in court and representing the United 
States of America, which is a thrill to be able to do. But you 
also, I noticed, have become an expert and have written on 
child abuse problems. Would you share some of your thoughts on 
that problem?
    Ms. Kendall. Certainly, Senator, and I believe I share your 
background, as well, as a prosecutor someplace, right? It is 
such a privilege to serve as a Federal prosecutor and stand up 
and say that you represent the people.
    The work that I have done in the area of child exploitation 
started happenstance, really, by a case that came on a duty 
day. But over the years, I have had to explore how to 
investigate and initiate prosecutions primarily that have 
involved the Internet and that have involved that class of 
children that is between 12 and 18 years of age, which is an 
at-risk group. And I have had the pleasure of working with the 
Department of Justice in helping them to look at the statutes 
that we had in the past that may not have addressed that group, 
and I have had the pleasure of working with victims and trying 
to show them all of the statutory rights that Congress passed 
for them to aid them in the process. And it has been an 
absolute honor to be able to say that there is some change in 
that area and that the victims in these cases are being helped.
    Senator Sessions. Good. Well, I would just say this to you: 
You have gotten the nomination of the President of the United 
States. You have had extensive support in your home districts. 
You have won the respect of your fellow practitioners and those 
who have known your professionally. And each of you have a 
tremendous background of public service and a commitment to 
helping and serving others. So I think those are qualities that 
are important.
    I guess most of all we pay you for your judgment. That is 
what you will be dispensing, judgment, but I am impressed with 
all of you. I think that the Senate will be also. As we wrap up 
this year's session, I am not sure how it will develop, but if 
there is a way, maybe there will be an opportunity to move you 
through before we recess for the year.
    Do any of you have anything else that you would like to 
say, any complaints that you would like to offer?
    Senator Sessions. I will ask you--a ``yes'' would be 
sufficient--do you know the salary that you will be paid and 
are you willing to work for it?
    Ms. Kendall. Absolutely.
    Judge Dubose. Yes, sir.
    Mr. Watkins. I don't know the salary, but I'm willing to 
    Senator Sessions. Well said. Well, you will probably 
receive some raises, but perhaps not as many as some on the 
bench would like. But it is a demanding job. We look forward to 
your service, and we will conclude the hearing at this time. I 
look forward to chatting with you for a few moments after we 
    If there is nothing else to come before the Committee, we 
will be adjourned.
    [Whereupon, at 3:16 p.m., the Committee was adjourned.]
    [A submission for the record follows.]

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