[Senate Hearing 109-397]
[From the U.S. Government Printing Office]
S. Hrg. 109-397 Pt. 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
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FEBRUARY 7, FEBRUARY 15, MARCH 1, MARCH 14, AND MARCH 29, 2006
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Serial No. J-109-4
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PART 3
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 109-397 Pt. 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
FEBRUARY 7, FEBRUARY 15, MARCH 1, MARCH 14, AND MARCH 29, 2006
__________
Serial No. J-109-4
__________
PART 3
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
38-736 WASHINGTON : 2007
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
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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
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FEBRUARY 7, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 158
PRESENTERS
Rockefeller, Hon. John, a U.S. Senator from the State of West
Virginia presenting Thomas E. Johnston, Nominee to be District
Judge for the Southern District of West Virginia............... 2
Capito, Hon. Shelley Moore, a Representative in Congress from the
State of West Virginia presenting Thomas E. Johnston, Nominee
to be District Judge for the Southern District of West Virginia 3
Fortuno, Hon. Luis G., a Representative in Congress, and Resident
Commission, from the Commonwealth of Puerto Rico presenting
Aida M. Delgado-Colon, Nominee to be District Judge for the
District of Puerto Rico........................................ 4
STATEMENTS OF THE NOMINEES
Batten, Timothy C., Sr., Nominee to be District Judge for the
Northern District of Georgia................................... 7
Questionnaire................................................ 8
Delgado-Colon, Aida M., Nominee to be District Judge for the
District of Puerto Rico........................................ 87
Questionnaire................................................ 88
Gordon, Leo Maury, Nominee to be Judge of the United States Court
of International Trade......................................... 63
Questionnaire................................................ 64
Johnston, Thomas E., Nominee to be District Judge for the
Southern District of West Virginia............................. 31
Questionnaire................................................ 32
SUBMISSIONS FOR THE RECORD
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia,
prepared statement............................................. 147
Customs and International Trade Bar Association, Melvin S.
Schwechter, President, Washington, D.C., letter................ 149
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
prepared statement............................................. 155
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New
Jersey, prepared statement..................................... 156
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FEBRUARY 15, 2006
STATEMENTS OF COMMITTEE MEMBERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 159
PRESENTERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio
presenting Jack Zouhary, Nominee to be District Judge for the
Northern District of Ohio...................................... 163
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Stephen G. Larson, Nominee to be District
Judge for the Central District of California................... 160
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting John F. Clark, of Virginia, Nominee to be Director
of the United States Marshals Service.......................... 161
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting John F. Clark, of Virginia, Nominee to be Director
of the United States Marshals Service.......................... 162
STATEMENT OF THE NOMINEES
Clark, John F., Nominee to be Director of the United States
Marshals Service............................................... 246
Questionnaire................................................ 247
Larson, Stephen G., Nominee to be District Judge for the Central
District of California......................................... 165
Questionnaire................................................ 166
Zouhary, Jack, Nominee to be District Judge for the Northern
District of Ohio............................................... 217
Questionnaire................................................ 218
QUESTIONS AND ANSWERS
Responses of Benigno Reyna to questions submitted by Senator
Durbin......................................................... 280
SUBMISSIONS FOR THE RECORD
Biddle, Louise W., Riverside California, letter.................. 298
Boozman, Hon. John, a Representative in Congress from the State
of Arkansas, letter............................................ 299
Clouse, Richard R., Partner, Cihigoyenetche, Grossberg & Clouse,
Rancho Cucamonga, California, letter........................... 301
Doskow, Charles S., Dean Emeritus and Professor of Law,
University of LaVerne, Ontario, California, letter............. 302
Dunn, Donald J., Dean and Professor of Law, University of
LaVerne, Ontario, California, letter........................... 303
Juarez, Carlos L., Attorney at Law, San Bernardino, California,
letter......................................................... 304
Lightfoot, Michael J., Lightfoot Vandevelde Sadowsky & Levine,
Los Angeles, California, letter................................ 305
McNamara, Paul G., Omelveny & Myers LLP, Los Angeles, California,
letter......................................................... 306
Nasatir, Michael D., Nasatir, Hirsch, Poderesky & Genego, Santa
Monica, California, letter..................................... 307
Porter, John M., Lewis Brisbois Bisgaard & Smith, LLP, San
Bernardino, California, letter................................. 309
Ramirez, Manuel A., Presiding Justice, Court of Appeal, Riverside
California, letter............................................. 310
Roth, Diane Catran, Roth & Roth, LLP, Riverside, Califronia...... 312
Sessions, Hon. Pete, a Representative in Congress from the State
of Texas, letter............................................... 313
Trask, Grover, District Attorney, County of Riverside, Riverside
California, letter............................................. 314
Voinovich, Hon. George, U.S. a Senator from the State of Ohio,
prepared statement............................................. 315
Warner, Hon. John, a U.S. Senator from the State of of Virginia,
prepared statement............................................. 317
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MARCH 1, 2006
STATEMENTS OF COMMITTEE MEMBERS
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 323
Feinstein, Hon. Dianne, A U.S. Senator from the State of
California, prepared statement................................. 410
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 416
PRESENTERS
Coleman, Hon. Norm, a U.S. Senator from the State of Minnesota
presenting Patrick Joseph Schiltz, of Minnesota, Nominee to be
Dirstrict Judge for the District of Minnesota.................. 326
Craig, Hon. Larry, a U.S. Senator from the State of Idaho
presenting Norman Randy Smith, of Idaho, Nominee to be Circuit
Judge for the Ninth Circuit.................................... 323
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho
presenting Norman Randy Smith, of Idaho, Nominee to be Circuit
Judge for the Ninth Circuit.................................... 325
STATEMENTS OF THE NOMINEES
Schiltz, Patrick Joseph, of Minnesota, Nominee to be District
Judge for the District of Minnesota............................ 360
Questionnaire................................................ 361
Smith, Norman Randy, of Idaho, Nominee to be Circuit Judge for
the Ninth Circuit.............................................. 329
Questionnaire................................................ 330
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MARCH 14, 2007
STATEMENTS OF COMMITTEE MEMBERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 565
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 571
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 417
PRESENTERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Gray Hampton Miller, of Texas, Nominee to be
District Judge for the Southern District of Texas.............. 421
Hutchison, Kay Bailey, a U.S. Senator from the State of Texas
presenting Gray Hampton Miller, of Texas, Nominee to be
District Judge for the Southern District of Texas.............. 420
Lautenberg, Hon. Frank, a U.S. Senator from the State of New
Jersey presenting Michael A. Chagares, of New Jersey, Nominee
to be Circuit Judge for the Third District..................... 418
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey presenent Michael A. Chagares, of New Jersey, Nominee to
be Circuit Judge for the Third District........................ 419
STATEMENTS OF THE NOMINEES
Chagares, Michael A., of New Jersey, Nominee to be Circuit Judge
for the Third Circuit.......................................... 423
Questionnaire................................................ 424
Freeman, Sharee M., Nominee to be Director, Community Relations
Service, Department of Justice................................. 524
Questionnaire................................................ 525
Miller, Gray Hampton, of Texas, Nominee to be District Judge for
the Southern District of Texas................................. 468
Questionnaire................................................ 469
Sedgwick, Jeffrey L., Nominee to be Director, Bureau of Justice
Statistics, Department of Justice.............................. 499
Questionnaire................................................ 500
QUESTIONS AND ANSWERS
Responses of Jeffrey L. Sedgwick to questions submitted by
Senators Leahy and Kennedy..................................... 557
SUBMISSIONS FOR THE RECORD
Anti-Defamation League, Michael Lieberman, Washington Counsel,
and Jess N. Hordes, Washington Director, Washington, D.C.,
letter......................................................... 563
Dreier, Hon. David, a Representative in Congress from the State
of California, letter.......................................... 569
Leadership Conference on Civil Rights, Wade Henderson, Executive
Director, Washington, D.C., letter............................. 570
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MARCH 29, 2007
STATEMENTS OF COMMITTEE MEMBERS
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 718
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 573
PRESENTERS
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania, presenting Thomas M. Golden, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 576
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Brian M. Cogan, Nominee to be District Judge
for the Eastern District of New York........................... 577
Voinovich, Hon. George, a U.S. Senator from the State of Ohio
presenting Michael Ryan Barrett, Nominee to be District Judge
for the Eastern District of New York........................... 574
STATEMENTS OF THE NOMINEES
Barrett, Michael Ryan, of Ohio, Nominee to be District Judge for
the Southern District of Ohio.................................. 624
Questionnaire................................................ 625
Cogan, Brian M., of New York, Nominee to be District Judge for
the Eastern District of New York............................... 655
Questionnaire................................................ 656
Golden, Thomas M., of Pennsylvania, Nominee to be District Judge
for the Eastern District of Pennsylvania....................... 580
Questionnaire................................................ 581
ALPHABETICAL LIST OF NOMINEES
Barrett, Michael Ryan, of Ohio, Nominee to be District Judge for
the Southern District of Ohio.................................. 624
Batten, Timothy C., Sr., Nominee to be District Judge for the
Northern District of Georgia................................... 7
Chagares, Michael A., of New Jersey, Nominee to be Circuit Judge
for the Third Circuit.......................................... 423
Clark, John F., Nominee to be Director of the United States
Marshals Service............................................... 246
Cogan, Brian M., of New York, Nominee to be District Judge for
the Eastern District of New York............................... 655
Delgado-Colon, Aida M., Nominee to be District Judge for the
District of Puerto Rico........................................ 87
Freeman, Sharee M., Nominee to be Director, Community Relations
Service, Department of Justice................................. 524
Golden, Thomas M., of Pennsylvania, Nominee to be District Judge
for the Eastern District of Pennsylvania....................... 580
Gordon, Leo Maury, Nominee to be Judge of the United States Court
of International Trade......................................... 63
Johnston, Thomas E., Nominee to be District Judge for the
Southern District of West Virginia............................. 31
Larson, Stephen G., Nominee to be District Judge for the Central
District of California......................................... 165
Miller, Gray Hampton, of Texas, Nominee to be District Judge for
the Southern District of Texas................................. 468
Schiltz, Patrick Joseph, of Minnesota, Nominee to be District
Judge for the District of Minnesota............................ 360
Sedgwick, Jeffrey L., Nominee to be Director, Bureau of Justice
Statistics, Department of Justice.............................. 499
Smith, Norman Randy, of Idaho, Nominee to be Circuit Judge for
the Ninth Circuit.............................................. 329
Zouhary, Jack, Nominee to be District Judge for the Northern
District of Ohio............................................... 217
NOMINATIONS OF TIMOTHY C. BATTEN, SR., OF GEORGIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; LEO MAURY GORDON,
OF NEW JERSEY, NOMINEE TO BE JUDGE OF THE UNITED STATES COURT OF
INTERNATIONAL TRADE; THOMAS E. JOHNSTON, OF WEST VIRGINIA, NOMINEE TO
BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA; AND AIDA
M. DELGADO-COLON, OF PUERTO RICO, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF PUERTO RICO
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TUESDAY, FEBRUARY 7, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 4:04 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn
presiding.
Present: Senator Cornyn.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. The Committee will come to order. Today, we
have a confirmation hearing for four of the President's
judicial nominees, and it is my hope and expectation that
barring any unforeseen events, we will get these nominations to
the Committee and to the floor of the Senate as soon as
possible.
I have a statement from the ranking member, Senator Pat
Leahy, which will be made part of the record, without
objection. Also, Senator Frank Lautenberg has offered a written
statement introducing Leo Gordon, which will likewise be made
part of the record, without objection.
I also have a statement from Senator Saxby Chambliss
concerning the nomination of Timothy Batten. He explains that
both he and Senator Isakson are attending the funeral of
Coretta Scott King and so they are unable to be here. I know
there are other members who are attending today, hence the
light turn-out for the hearing. But, as I always tell nominees
who come up for confirmation hearings, poor attendance is not a
bad sign.
[Laughter.]
Senator Cornyn. You have to worry when everyone is here,
loaded for bear, so to speak.
We are honored to have members of the Senate and the House
here to make some introductory comments about some of the
nominees, and I would like to first recognize Senator
Rockefeller for any comments he would like to make on behalf of
Thomas Edward Johnston.
PRESENTATION OF THOMAS E. JOHNSTON, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, BY HON. JOHN
ROCKEFELLER, A U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Rockefeller. Thank you, Mr. Chairman, and I just
would pause to say that I admire what you have been through and
gone through over the past several weeks. It has probably been
some of the busier days of your life.
Senator Cornyn. Well, we are glad to get to hopefully some
simpler, easier to projects to deal with, like the hearings
today.
Senator Rockefeller. Well, I hope my suggestion here will
be taken and the President's nominee will be accepted by the
Senate, and I am sure that will be the case.
Tom Johnston--and you gave his name--is our U.S. Attorney
for the Northern District of West Virginia. We have two
districts, North and South, and both are very complicated and
both very, very different. That may be true in most States, but
it certainly is true in ours.
He has agreed, along with his family who is behind me--and
perhaps at this point I should ask them to wave or rise or
something.
Senator Cornyn. That would be great.
Mr. Johnston, if you would ask your family to stand? And if
you would care to introduce them, please go ahead.
Mr. Johnston. Thank you, Senator. This is my wife, Lisa
Grimes Johnston; my son, Jack; my daughter, Joanna; and my
mother-in-law, Jeanette Grimes.
Senator Cornyn. Very good. Welcome. I am glad you are here.
Senator Rockefeller. It is important to get that mother-in-
law part right.
[Laughter.]
Senator Rockefeller. Thank you, Mr. Chairman. He has been
nominated to come down and take the vacancy created by somebody
who is an extremely close friend of mine, Judge Charles Hayden,
who was judge there for many years, participated heavily in the
life of our State, as does yet his wife, Priscilla, whom I am
sure Tom Johnston knows very well. She has been on the board of
education and I voted for her every time.
I don't know Tom Johnston that well, but I know him well
enough to say that he is a very fine young lawyer in his own
right, and by all accounts that I and my folks from my office
working on this have been able to find out, he is a very
capable and a very dedicated U.S. Attorney. I submit to the
Committee that I expect him to be a very good Federal judge,
also. I don't have any doubts about that.
As I indicated, the seat that he will fill is a significant
one. Judge Hayden has made a mark on the history of West
Virginia like relatively few others. But Tom Johnston will be
up to filling those shoes and I want to be able to see that
happen. I support him, and I thank you for your attention, Mr.
Chairman.
Senator Cornyn. Well, thank you very much, Senator
Rockefeller, for being here and for making that introduction. I
am sure Mr. Johnston and his family appreciate it, and I can
guarantee you the Committee does.
We will stick with West Virginia, and Representative Capito
is here. Welcome to the Committee and any additional comments
you would care to make, now would be a good time to do that.
PRESENTATION OF THOMAS E. JOHNSTON, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, BY HON.
SHELLEY MOORE CAPITO, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF WEST VIRGINIA
Representative Capito. Thank you, Mr. Chairman, and I
certainly would like to make an additional comment. Tom
Johnston is born and bred in West Virginia. I consider him one
of the best and brightest minds in our State of West Virginia.
He is raising his family in West Virginia, and for those of us
in West Virginia--and Senator Rockefeller knows this well,
being a fellow West Virginian--there is nothing we treasure
more than those that stay in West Virginia and raise their
family and contribute to the fabric of the society and the
economics of our State.
Tom has been a good friend of mine, I would say, for 5
years. I really met him through a political process, but we
have grown to be friends with our families. He is raising, as I
said, two fine young children back there, and he has led as the
U.S. Attorney with great leadership and skill and we are very
grateful to that.
I know he has had some assignments with the Department of
Justice that have been exceptional for our State and for our
Nation, but I expect him to be an extremely fair-minded judge.
And I will say he is a young man. I guess we have to admit
that, don't we? A young man, but he will have the courage, I
think, to make the right decision. He has a lot of kindness and
compassion, which I believe is critical when you become a
judge, and I know that he will have a great longevity in this
position that is going to be very important to our State.
So I am really pleased to be here with Senator Rockefeller.
He has been a great guiding light for me, certainly, as the
junior, junior, junior member of the West Virginia delegation.
So I am pleased to have President Bush's great leadership in
appointing Tom Johnston as a judge in the Southern District,
and I look forward to his many years of service.
Thank you for giving me the opportunity.
Senator Cornyn. Thank you, Representative Capito, for
taking the time to come here and make those remarks.
We know that members of the Senate and the House have a lot
of other engagements they could be involved in, and other
duties. So, please feel free--if you would like to stay, fine.
If you have other obligations, feel free to leave when you need
to do so, but thank you very much for being here.
Our next introducer is Luis Fortuno, U.S. Representative
from Puerto Rico, and Resident Commissioner, to speak on behalf
of Aida Delgado-Colon.
Representative Fortuno, welcome to the Committee.
PRESENTATION OF AIDA M. DELGADO-COLON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF PUERTO RICO, BY HON. LUIS G. FORTUNO,
A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF PUERTO
RICO
Representative Fortuno. Thank you, Mr. Chairman. Thank you
for allowing me the honor to introduce her.
As the sole Representative in Congress of the 4 million
U.S. citizens residing in Puerto Rico, it gives me great
pleasure to introduce U.S. Magistrate Aida Delgado to the
Senate Judiciary Committee.
She is here with us and she has some members of the family
and coworkers who are joining her today.
Senator Cornyn. Would you introduce your family members so
we can identify them and they can share in your glory here?
Judge Delgado-Colon. I would be honored and pleased to do
that, Mr. Chairman. First of all, I would like to introduce my
mother, Luz Colon. She is a retired teacher for the
Commonwealth of Puerto Rico.
Senator Cornyn. Welcome.
Judge Delgado-Colon. With her, my sister, Zulma. She is a
devoted prosecutor within the Department of Justice in the
Commonwealth of Puerto Rico. And along with me, as well, if you
allow me to introduce at least a group of ten close, lifetime
family friends whom I consider my relatives. All of them can
stand at the same time. They have been very supportive and
didn't hesitate to leave the warm temperature of the Caribbean
to be here today.
Senator Cornyn. Well, welcome to all of you, and I know
that your presence here is a great comfort and encouragement to
the nominee.
Judge Delgado-Colon. Thank you.
Senator Cornyn. Thank you.
Representative Fortuno.
Representative Fortuno. Thank you.
She is the President's nominee for a vacancy on the U.S.
District Court for the District of Puerto Rico. Mr. Chairman, I
am honored and enthusiastic to appear before you today in
support of her nomination.
Ms. Delgado was born in Lares and educated at the
University of Puerto Rico and the Pontifical Catholic
University of Puerto Rico. From those two institutions, she
graduated with honors. Early in her legal career, she joined
the Governor of Puerto Rico's Advisory Council on Labor Law as
Director of Research and Investigations.
From 1982 to 1991, Ms. Delgado worked in the Office of the
Federal Public Defender for the District of Puerto Rico, first
as Assistant Federal Public Defender, then as First Assistant
Federal Public Defender, and finally as Acting Federal Public
Defender. Since 1993, Magistrate Judge Delgado has served with
distinction as a U.S. Magistrate in the U.S. District Court of
Puerto Rico.
During that time, her rulings on both civil and criminal
proceedings have had over a 98-percent adoption rate by the
district court. From 1999 through 2003, she was accountable for
resolving over 60 percent of all criminal pre-trial matters and
over 55 percent of all civil pre-trial matters from the total
number of issues assigned to magistrates of that court.
Since 2002, Magistrate Judge Delgado has also been an
adjunct professor of Federal civil and criminal forensics
practice at the Pontifical Catholic University of Puerto Rico
School of Law. Her impeccable record in public service and in
the field of law has earned her a place amongst the most
distinguished jurists and attorneys in Puerto Rico.
This nominee has received widespread support from those who
have worked with her. Actually, that is attested by so many of
her co-workers joining us today. Those who face her in the
courtroom speak with respect and admiration. Recently, the
Federal Bar Association expressed its unconditional
satisfaction with her qualifications and recognized her as, I
quote, ``exceptional, competent and qualified Federal legal
professional.''
Yesterday, the Hispanic National Bar Association endorsed
her nomination by saying, and I quote again, ``She has earned a
well-deserved reputation of excellence over a 25-year career,''
end quote, and described her as, and I quote, ``eminently
qualified for the job,'' end of quote.
Last year, the American Bar Association issued a nearly
unanimous vote rating Ms. Delgado as well qualified for
appointment as judge of the United States District Court for
Puerto Rico. It is the highest rating given by the American Bar
Association Standing Committee on the Federal Judiciary.
Mr. Chairman, Ms. Delgado without any doubt is at the top
of the legal profession in her community. Aida Delgado has been
a pioneer in her family and profession. As the first lawyer in
her family, she became the first woman at the Federal public
defender's office and the first woman to be appointed
Magistrate Judge in the District Court for Puerto Rico. She has
received numerous awards and acknowledgements, and recently the
Puerto Rico House of Representatives adopted a resolution
endorsing her nomination.
I believe that Ms. Delgado possesses the intellectual
capacity, the education and unbiased and dispassionate frame of
mind which will allow her to excel in her new position. It is a
pleasure for me to introduce to you and to recommend Ms. Aida
Delgado as a nominee that fully understands the responsibility
that a position on the Federal bench entails. I commend the
President for selecting such an outstanding nominee, and if
confirmed, she will be the second woman to go to the district
court bench since 1985.
Thank you very much again, Mr. Chairman.
Senator Cornyn. Thank you, Representative Fortuno, for your
introduction and the time you spent here. We appreciate that
very much, and I know the nominee and her family and friends do
as well. Thank you.
At this time, could I ask the nominees please to step
forward? I need to administer the oath.
If you would raise your right hand, do each of you swear
that your testimony before the Committee will be the truth, the
whole truth and nothing but the truth, so help you God?
Mr. Batten. I do.
Mr. Gordon. I do.
Mr. Johnston. I do.
Judge Delgado-Colon. I do.
Senator Cornyn. Thank you. Please have a seat.
Welcome, Mr. Batten and Mr. Gordon, as well.
By way of background, Timothy Carroll Batten, Sr., was
nominated to be United States District Judge for the Northern
District of Georgia. He received his Bachelor's of Science from
the Georgia Institute of Technology and he has spent his entire
legal career as an attorney with the firm of Shreeder, Wheeler
and Flint, in Atlanta, working in commercial litigation,
including fraud and breach of contract cases, construction
cases, personal injury, products liability and malpractice
litigation.
Welcome, Mr. Batten. If you have some family members here,
this would be a good time maybe to introduce them.
Mr. Batten. Thank you, Mr. Chairman.
My wife, Beth is here. We brought half of Georgia. I have
got six children. This is my oldest daughter, Anna, and then
Claire. No. 3 had to take care of No. 6, who had expired. This
is Laura and Paige.
And then I also brought my parents, Hosea and Carol Batten;
my father-in-law, Carey Parkman; my brother, Eric, and his
wife, Vicki; and three of their children, Scott, Rebecca and
Mimi.
Senator Cornyn. Well, welcome to all of you. Thank you for
coming. You have got a lot of good support there.
Mr. Batten. I am sorry if there aren't enough seats in the
back.
Senator Cornyn. Well, I know this is an important day not
just for you, but for your family and friends as well.
Senator Cornyn. Our fourth nominee is Leo Maury Gordon,
nominated to be Judge of the United States Court of
International Trade. Mr. Gordon received an A.B. from the
University of North Carolina at Chapel Hill in 1973, and a J.D.
from Emory in 1977.
Following law school, he served as an assistant counsel to
the House Judiciary Committee's Subcommittee on Monopolies and
Commercial Law, focusing on antitrust and other commercial
legislation. Since 1981, Mr. Gordon has been an attorney at the
United States Court of International Trade, advising the judges
of the court on substantive and procedural issues and
litigation pending before the court, as well as on matters
pertaining to the operation of the court.
Mr. Gordon, welcome, and if you have some introductions, we
would be pleased to hear those at this time.
Mr. Gordon. Thank you very much, Mr. Chairman. It is my
pleasure to introduce my wife, Marci Spero Gordon; my twin
daughters, Jenny Gordon and Sarah Gordon; my brother, Toby
Gordon; and the reason I am here today, my mother, Pearl
Gordon.
Senator Cornyn. Well, welcome to each of you. Thank you for
coming, and thank you for introducing your family to us.
We are going to entertain statements from each of the
nominees, and I would ask for you to keep those in the 5-minute
range. Hence, the clock, the timer out front. That is no
stranger to any of you particularly in appellate courts. We
don't have the green, yellow and red lights, but we do have a
timer here.
Mr. Batten, we will start with you, if we may, if you have
an opening statement or any comments you would care to make.
STATEMENT OF TIMOTHY C. BATTEN, SR., NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Mr. Batten. Thank you, Mr. Chairman. I just would like to
express my profound appreciation to the President and to
Senators Chambliss and Isakson, from Georgia, for lending
support to my nomination and the President for nominating me.
This is a position that I have felt strongly about for many
years and I feel like it is a tremendous opportunity to serve
the public and one that I believe I am ready for. And it is
with great enthusiasm that I look forward to this opportunity
hopefully to be confirmed by the Senate and to serve.
[The biographical information of Mr. Batten follows:]
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Senator Cornyn. Thank you, Mr. Batten.
Mr. Johnston.
STATEMENT OF THOMAS E. JOHNSTON, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Mr. Johnston. Mr. Chairman, thank you very much. Mr.
Chairman, I will be very brief. I just want to express my
appreciation for the opportunity to be here. It is a great
honor. I thank the President for considering me for nomination
and I appreciate very much the opportunity to be here.
[The biographical information of Mr. Johnston follows:]
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Senator Cornyn. Thank you, Mr. Johnston.
Mr. Gordon.
STATEMENT OF LEO MURRAY GORDON, NOMINEE TO BE JUDGE OF THE
UNITED STATES COURT OF INTERNATIONAL TRADE
Mr. Gordon. Thank you, Mr. Chairman. Initially, let me
thank you and the Committee for the opportunity to appear
before you today. I also wish to express my profound gratitude
to the President for his confidence in sending forth my
nomination to the Senate.
It is with a great deal of humility that I appear today in
continuation and furtherance of my public service, and I look
forward, if the Senate so desires, to serving in the capacity
as a judge at the United States Court of International Trade
and continuing my service to the country.
Thank you.
[The biographical information of Mr. Gordon follows:]
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Senator Cornyn. Thank you very much.
Judge Delgado.
STATEMENT OF AIDA M. DELGADO-COLON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF PUERTO RICO
Judge Delgado-Colon. Thank you, Chairman. Certainly, I
would like to join the statements made by the fellow nominees
here and first of all thank the President for the nomination he
has extended, this Committee for allowing me the opportunity of
appearing before you here today, and certainly Resident
Commissioner Luis Fortuno for the advice, support and
encouragement he has given me throughout the process.
And if there is one thing I would like to do is to take
this opportunity to use it to honor and render tribute to my
parents, which certainly have been the guiding the force
driving me through the pathway that has brought me before you
here today, and besides that to acknowledge the spiritual
presence of my father. I know he would have loved to be here
today.
Aside from that, I must say that I am overwhelmed by the
support and presence of the personnel from the Administrative
Office, which I was not expecting. I have here also the Chief
of the Magistrate Judge's Division, and I certainly thank them
for their presence and support.
Thank you.
[The biographical information of Judge Delgado-Colon
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Senator Cornyn. Well, thank you very much.
Recently--I guess it was just about 7 months ago--Sandra
Day O'Connor announced her retirement from the United States
Supreme Court, and during that interim of 7 months we have had
confirmation hearings and the confirmation of the Chief Justice
of the United States and of Justice Sam Alito. This hearing
will not be anything like theirs.
[Laughter.]
Senator Cornyn. That is the good news. I might just point
out before I pose questions to the nominees that none of you
are strangers to the Committee in this sense, that before you
got here not only has a thorough investigation been made into
your background and your professional qualifications, your
integrity and your judicial temperament at the White House
before you were nominated, but I am confident that an
evaluation was made by the Senators and those who were
responsible for your getting the nomination.
In addition, we know that the Federal Bureau of
Investigation does a thorough background investigation into
each nominee, which is appropriate. And the American Bar
Association, as was already mentioned, Standing Committee on
the Judiciary does a thorough evaluation of judicial nominees
and makes a recommendation to the Committee.
So that is what I mean when I say none of you are strangers
to the Committee. Even though we have just met face to face,
the Committee already knows an awful lot about you, and that is
as it should be. But I do have just a few questions and it
won't be lengthy interrogation, but I would like to hear from
each of you with regard to a couple of things.
Mr. Gordon is going to have a chance to educate me a little
more on the particular court that he has been nominated to. I
am much more familiar with the functions of the courts the rest
of you have been nominated to.
Mr. Batten, could you share with me and the Committee some
of your insights into the challenges of administering a docket
on the court to which you have been nominated? Obviously,
judicial philosophy was the focal point for a lot of
discussions for the Supreme Court nominees because they are the
last word, and certainly as a district court judge your
responsibility will be to follow the law as determined by the
United States Supreme Court, but perhaps directly in most cases
by the circuit in which your court is located.
Could you share with the Committee some of your thoughts
about the nature of the docket you have--I am unfamiliar with
it--and the challenges you will have in terms of administration
and how you will approach that job?
Mr. Batten. Yes, sir. Thank you, Mr. Chairman. The smooth
administration of justice, of course, is critical if there is
to be justice, and in the District Court of the Northern
District of Georgia, which is Atlanta, approximately 15 percent
of the cases that are tried are criminal in nature. And I know
as a trial lawyer--I have been trying cases for 22 years--that
it is imperative that the courts move quickly. As has been so
frequently quoted, justice delayed is justice denied.
It is my intention to act as expeditiously as possible with
my cases. I have an expectation upon entering the court to see
to it that there is a commitment to excellence among everyone
on my staff, and especially myself where I would make
decisions. I think it is crucial that a judge not lose sight of
the fact that the public perception is that the cases languish
too long. And then even when the lawyers start feeling that
perception, then there is probably some truth to it.
So my objective, Senator, would be to move my cases as
rapidly as possible, to use alternate dispute resolution
mechanisms such as mediation and arbitration to achieve as high
a settlement rate as practicable, and to move my cases as
quickly as possible.
Senator Cornyn. Mr. Johnston, could you tell me a little
bit about the nature of the docket of the court to which you
have been nominated and your thoughts as to how you will make
sure that all litigants get a timely and fair opportunity to be
heard?
Mr. Johnston. Yes, Mr. Chairman. I appreciate the
opportunity to share some thoughts on those issues. The docket
in the Southern District of West Virginia in many ways is very
similar to the Northern District of West Virginia, where I now
serve as United States Attorney and where I previously served
as a law clerk to Hon. Frederick P. Stamp, Jr., who is a United
States District Court Judge in Wheeling, West Virginia.
I believe that in many ways I will borrow practices from
Judge Stamp and his ability to move cases expeditiously, to
decide cases fairly based on the law, to set cases for trial.
In my experience from working with Judge Stamp, and certainly
also being in private practice and also in the U.S. Attorney's
offices, that there is nothing that moves a case toward
resolution like a trial date.
Also, the Northern District has been something of a pioneer
in alternate dispute resolution. I am a big believer in that as
a means to find resolution for cases more quickly, more
expeditiously and more efficiently for the litigants involved.
If I may, Mr. Chairman, I think that I would like to add to
my introductory remarks, if I may. I do want to thank Senator
Rockefeller and Congresswoman Capito for their very kind
remarks today, and I also want to thank my family for their
love and support and for them being here. I think I would be
remiss in not making those remarks.
Thank you very much.
Senator Cornyn. Thank you. That is most appropriate.
Mr. Gordon, tell me a little bit about the court to which
you have been nominated. You have had quite a bit of
experience, it sounds like, working in and around it, but tell
me a little bit about the challenges that that court has in
terms of administering its docket and making sure that justice
is not delayed or denied.
Mr. Gordon. Yes, Mr. Chairman. Thank you very much for the
question and the opportunity to share with you some of my
thoughts. As you may be aware, Mr. Chairman, the court only has
civil jurisdiction and the court is responsible for hearing
challenges to the administration and enforcement and
interpretation of the Federal customs and international trade
laws of the United States. As such, the United States
Government is either the defendant or the plaintiff in almost
every single case that comes before the court.
In those situations, we are dealing principally with
challenges to decisions made by the Bureau of Customs and
Border Protection with respect to the importation of
merchandise into the United States and decisions made by the
Department of Commerce and the International Trade Commission
with respect to the anti-dumping and countervailing duty laws
of the United States.
For the past 25 years, I have had the opportunity to work
with judges on the court, the staff at the court and many, many
attorneys, both in the private sector and the Government
sector, with respect to that very issue that you raised, which
is the administration of justice and the management of the
court's docket.
I am very proud to say that as clerk of the court, we have
gone completely electronic, utilizing the Administrative
Office's CMECF system, and so all of the cases that are on the
docket before the court are now electronically filed, with the
exception of certain initiating documents.
I have had the opportunity to work with the court's
Advisory Committee on Rules and with many attorneys in mega
cases that are before the court in constructing efficient
practices and procedures in order to make sure that the cases
move through the system effectively, with fairness and an
opportunity for all sides to present their arguments and issues
to the court.
I fully expect that the experience that I have had as the
assistant clerk as the court and now as the clerk as the court,
and my relationship with many counsel--that I will be able to
continue those practices, if confirmed by the Senate as a
judge. And I fully expect to be able to dispose of the docket
before me in an efficient and effective manner, clearly with
the goal of dispensing justice and doing it in a way that makes
sure that there is an opportunity for each side to be heard.
I absolutely believe that one of the most critical skill
sets that a judge can have is the ability to listen and to make
the litigants that appear before the court, along with their
counsel, to be comfortable and to know that they have had their
opportunity for a day in court, and that they can walk out the
door feeling that the process has heard them and served them
well, regardless of the outcome.
Senator Cornyn. Well, I appreciate your comments with
regard to the belief of the litigants that they have had a fair
opportunity to be heard, win, lose or draw. Back in a previous
lifetime, I served as a State trial court judge and then served
on my State's supreme court.
I was amazed at how many times people really just wanted
somebody to listen to what they had to say, and it is, I guess,
maybe a sign of the times that people don't get other people to
listen to them unless they get them into court, where they have
to listen. That was an amazing sort of revelation. I guess it
is nothing profound, but there is a great sense of justice with
giving people an opportunity to be heard.
I know judges frequently feel like they are under pressure
to move their docket, accelerate their production, but I
appreciate your comments with regard to having people with the
belief that they have experienced justice and not just been
part of a cog in a huge machine.
Judge Delgado, I would be interested in learning more about
the court to which you have been nominated and your plans for
administering your docket.
Judge Delgado-Colon. Well, the District Court of Puerto
Rico for which I have been nominated is the same court for
which I have been serving as a magistrate judge for the past 12
years.
Of course, a trial court is a court of limited
jurisdiction. We have a full and very active civil docket and
criminal docket. Actually, within the First Circuit I think we
rank and have ranked No. 1 in multi-defendant criminal cases.
So that is a great challenge in terms of the pre-trial
management and the skills that are compelled and the follow-up
that the judge has to give to those types of cases.
So it is a very active docket that thus far I understand is
well under control. And I hope that I will be able, if
confirmed by the Senate, to keep assisting the district judges
of that court to dispense justice equally to all in a prompt
and expedited and fair manner.
In terms of the skills or mechanisms that I can utilize or
can be utilized to expedite case management, certainly, sir, I
will have to mention that the local rules of the district court
provide for a very streamlined discovery process and motion
practice that, when effectively implemented, serves very well
the purpose.
Besides that, I am a firm believer in the same trend of
listening to the attorneys; that instead of imposing a
scheduling order, what I do more so in complex cases is that I
meet with the attorneys. I sit with them and I try to fix a
reasonable schedule that is worked jointly. After that, the
attorneys know that they will have to live to that schedule,
and enforcing that schedule is something that prompts
resolution.
I think that a firm trial date always serves to expedite
cases and matters, and it has been my experience and the result
of my experience during the past 12 years that alternative
dispute resolution is an incredible mechanism that is available
and has been implemented in the district court successfully.
Personally, I am a firm believer of communicating with the
attorneys, members of the bar, either through the ABA, the
Federal Bar, keeping in touch with members of the bar through
continuing legal education, which is what we have done. And we
share the needs of the court, the concerns of the attorneys,
and we keep on a daily basis--or a frequent basis, I should
say, trying to work out mechanisms that will expedite the cases
in court and serving everyone fairly and expeditiously.
Senator Cornyn. Well, thank you very much. You mentioned
alternative dispute resolution, as did Mr. Johnston and Mr.
Batten. One of the concerns I have about our civil justice
system--and now we are talking about civil cases, obviously--is
the time, the delay, and the expense of invoking the provisions
of our law when it comes to having your case heard and decided
in a court.
If you are the plaintiff, obviously a contingent fee
arrangement is the way that oftentimes that obstacle is
overcome. But, you have to find a lawyer who will take your
case and they have to obviously feel like it is a good economic
decision for them to make or you may be out of luck, or you can
be a wealthy litigant or have insurance.
But, I worry that for many people who have disputes that
they would like to present to courts for decision, the
courthouse doors are locked, not literally, but because of the
cost and the delays inherent in so much of our civil justice
system.
Mr. Batten, can you talk to that issue and maybe a little
bit about your experience with alternative dispute resolution
and how you would plan to implement those procedures perhaps to
address those issues of cost and delay?
Mr. Batten. Yes. Thank you, Mr. Chairman. I started
practicing law in 1984 and it really was about that time, in
the mid- to late 1980's, that ADR became more pervasive, more
popular. Frankly, when I first introduced to it, I wasn't very
excited about it because I wanted to try cases. And then I
started mediating cases, more mediation than arbitration, which
in the Northern District of Georgia that is more commonly used.
And what I learned is this works.
It is a rare case today where I am that the parties are not
ordered to mediation. You know, I have had cases that I went in
thinking there is absolutely no way that this case will settle;
these people are too adamantly entrenched in their respective
polar opposite positions to be able to reconcile through one
mediator in 1 day. And I have had a number of occasions when I
went in feeling that way and the case was resolved by
mediation. So in my book, there is no such case, a case that
can't be resolved by mediation.
So I think one of the important things is the parties
typically should be ordered to mediation because it is so
effective, and although lawyers are much more receptive to the
idea now than I was in the early or mid-1980's, there are still
some lawyers today who don't embrace ADR as a regular part of
the procedural machinery that should be employed to resolve
cases. That is where I think help can be had.
Senator Cornyn. Mr. Johnston, let me ask you a related but
slightly different question. What do you think the role of the
judge is with regard to alternative dispute resolution? Is that
a function that is delegated to someone else or should the
judge be in the middle of shuttling back and forth between the
litigants trying to get the case settled? And, does that raise
any issues, in your mind, about the judge's later role, that of
being the impartial adjudicator?
Mr. Johnston. Thank you for that question, Mr. Chairman. My
experience is that a judge is in a position to encourage
alternate dispute resolution. My experience--as I mentioned
earlier, in the Northern District of West Virginia we have a
program called the settlement week mediation, and each judge is
asked to look at their docket and look at cases that are close
to the end of discovery coming up for trial and put them on a
list.
And then we have all of the cases and mediators--we have a
large number of trained mediators who will come in and we will
assign rooms to them throughout the courthouse and mediate all
together over a week-long period. The rate of resolution of
those cases typically was around a third of those cases would
be resolved as a result of that, which I thought was a
remarkable result and a great bit of evidence for the efficacy
of alternative dispute resolution.
So I think to the extent that as a judge, if confirmed, I
can encourage mediation, I will do that. I think it is
appropriate for a judge to participate in settlement
conferences as long as one does not step into the role of
advocate. Certainly, facilitating settlement discussions is an
appropriate and useful, in my opinion, function for a judge if
it assists in resolving a case.
Senator Cornyn. Mr. Gordon, does your court employ
alternative dispute resolution?
Mr. Gordon, Mr. Chairman, no, the court does not. We are
not authorized by statute for an ADR program. However, the
court does have what we call an in-court mediation program
where one judge can refer a case for settlement discussions to
another judge. We have had that for a couple of--the judges
have had that for a couple of years. The program has had modest
success.
The thing that you need to know about our docket is that
many of our cases are related to another case or have
implications for other cases, so that the use of mediation is
somewhat problematic because of the nature of the court's
jurisdiction.
Senator Cornyn. It doesn't just affect the immediate
litigants or parties to the case?
Mr. Gordon. That is absolutely correct, Mr. Chairman.
Senator Cornyn. Judge Delgado, you said your court tries a
lot of complicated, multi-party criminal cases. What percentage
of the cases are civil?
Judge Delgado-Colon. Right now, I will say--well, I think
that there is a balanced number, but the number of defendants
in one criminal case certainly is quite significant. We may
have one criminal case with 40 defendants, 36 defendants. That
is not unusual in our district. Twelve is run-of-the-mill, if I
may use the expression. But in that sense, my share of work--
right now, I will say it is 50 percent civil, 50 percent
criminal as a magistrate judge.
Senator Cornyn. And how do you employ alternative dispute
resolution or settlement techniques to try to resolve cases
without trial? Could you comment on that, please?
Judge Delgado-Colon. The alternative of mediation is always
offered to the parties, and some of them, some of the attorneys
of the bar, are familiarized with the process and they even
request at their own initiative to have the case mediated by a
judicial officer. In the sense that it may create a conflict or
a dilemma for the judge that is presiding or would be presiding
in the trial of the case, we have used--or the district judges
have used magistrate judges to assist in that matter and we
mediate many, many cases.
On some occasions, if the case requires a lengthy process
or it involves the need for an expert in certain topics or
areas or legal fields, there is a panel of mediators to which
the court can have the case assigned, or have some other
magistrate judge from other districts within the First Circuit
to conduct the mediation as well. But it is a mechanism that is
always offered. It has been well accepted by members of the bar
and frequently used in our district.
Senator Cornyn. Thank you very much.
Well, I thank each one of you for appearing here today and
bringing your family and friends along with you.
Congratulations on your nomination. It is my hope that now that
the hearing is almost concluded that we can have a quick mark-
up of your nominations in the Judiciary Committee and hopefully
get them to the floor of the Senate without any unnecessary
delay.
At this point, I would like to offer, without objection,
the statement of Senator Johnny Isakson on the nomination of
Timothy Batten, as well as a letter from the Customs and
International Trade Bar Association on behalf of the nomination
of Mr. Leo Gordon. That will also be made part of the record,
without objection.
We will leave the record open until 5 p.m. on Tuesday,
February 14, in case any member of the Committee would like to
submit written questions to the nominees. In the event that
that occurs and you receive written questions, I would
encourage you to get those answered and back to the Committee
as soon as you can. Obviously, that will help us expedite the
voting of your nominations out of the Committee and to the
floor. And, I know you have an interest in making sure that
there is not unnecessary delay, as I do.
Thank you very much for being here. Good luck to each one
of you.
With that, the hearing is adjourned.
[Whereupon, at 4:46 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF STEPHEN G. LARSON, OF CALIFORNIA, NOMINEE TO BE DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; JACK ZOUHARY, OF OHIO,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO; AND
JOHN F. CLARK, OF VIRGINIA, NOMINEE TO BE DIRECTOR OF THE UNITED STATES
MARSHALS SERVICE
----------
WEDNESDAY, FEBRUARY 15, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Mike DeWine
presiding.
Present: Senators DeWine and Feinstein.
OPENING STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE
STATE OF OHIO
Senator DeWine. Good morning. We welcome all of you to the
hearing. The Committee will come to order.
Today we will have a confirmation hearing for two of the
President's judicial nominees as well as the nominee for head
of the United States Marshals Service. I think all of these
nominees are well-qualified for their respective positions and
I hope we can move these nominations through the Committee
shortly and through the Senate as soon as possible.
Let me welcome Senator Warner and Senator Allen with us
today. Let me also welcome Senator Feinstein, and I would defer
to her now for her comments.
Senator Feinstein. Thank you very much.
I would like to introduce to the Committee Judge Larson. I
don't know if it is appropriate to do it now.
Senator DeWine. We can do that. Are you going to stay with
us during the--
Senator Feinstein. I was hoping not to stay the whole
hearing, if I might.
Senator DeWine. Why don't you go right ahead, then.
Senator Feinstein. Thank you.
PRESENTATION OF STEPHEN G. LARSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Mr. Chairman, Senator DeWine, it is my
pleasure to introduce to the Committee Judge Stephen Larson,
the nominee to the Federal District Court for the Central
District of California.
Judge Larson--it is a wonderful family.
[Laughter.]
Senator Feinstein. It is an amazing family, as you can
probably see. But I will let Judge Larson at the appropriate
time introduce his wife and children.
He is a native of Fontana. He is specifically nominated for
a seat on the Federal bench in Riverside, California. He comes
to this Committee very familiar with the court to which he is
nominated. Since October of 2000, he has served as a magistrate
judge for the Central District in Riverside.
He has spent his last 15 years in public service. Prior to
becoming a magistrate judge, he was Assistant United States
Attorney in the Central District of California, from 1991 to
2000, serving as Chief of the U.S. Attorney's Organized Crime
Strike Force and as coordinator of its Russian Organized Crime
Unit.
Judge Larson attended college here in Washington, at
Georgetown University School of Foreign Service, from which he
received a bachelor's of science in 1986. He then returned to
California for law school, graduating from the University of
Southern California Law School in 1989.
The American Bar Association has unanimously declared him
to be well qualified, and it is evident--to me, at least--that
he has very strong support within the Inland Empire. I have
received a number of letters endorsing his nomination. Judge
Larson, you might be pleased to know that these recommendations
come from a very diverse cross-section of the Inland Empire's
legal community--from judges and law professors, from
Government attorneys and private practitioners, and from
Democrats as well as Republicans. In these letters, Judge
Larson is praised for his legal knowledge, and words like
``fairness,'' ``integrity,'' ``hard work,'' ``temperament,''
``intelligence,'' ``patience,'' and ``sense of social justice''
are all present.
So I am very proud of the bipartisan judicial screening
process that exists in California, because under this system a
Committee of lawyers including Democrats and Republicans
recommends qualified appointments to the President. And Judge
Larson's nomination through this process gives me a great deal
of confidence that he comes to the bench without an ideological
agenda and is prepared to serve all of the people of
California, as well, of course, as the law.
So Judge Larson, let me congratulate you. Perhaps if the
two Senators don't mind--because this is such a beautiful
family--would you mind just standing and introducing your
family?
Judge Larson. This is my wife Dena and my little daughter
Michaela; and Joseph, Brendan, Patrick, Thomas--and I believe
Mary had to make a premature exit with my sister. They are
right outside the door.
Senator Feinstein. Thank you very much. And good luck,
Judge.
Thank you, Mr. Chairman.
Senator DeWine. Senator, thank you very much for that very
nice introduction.
Senator Warner, Thank you for joining us.
Senator Allen, Thank you for joining us.
Senator Warner, we will recognize you.
PRESENTATION OF JOHN F. CLARK, OF VIRGINIA, NOMINEE TO BE
DIRECTOR OF THE UNITED STATES MARSHALS SERVICE, BY HON. JOHN
WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you very much.
Mr. Chairman and other members of the Committee, I am
pleased to introduce a long-time Virginian, John Clark, who has
been nominated to serve as the Director of the United States
Marshals Service. He is joined here today by his wife Lucy.
Would you kindly introduce your wife?
Mr. Clark. This is my wife, Lucy.
Senator Warner. As you know, the Marshals Service is the
Nation's oldest Federal law enforcement agency--a point in
history I think is worth remembering. When originally created
in 1789, President Washington nominated 13 U.S. Marshals for
Senate confirmation. Today, more than 200 years later, America
has 94 U.S. Marshals and the Marshals Service employs more than
4,800 Deputy Marshals and employees.
The Director of the Marshals Service serves as the Agency's
head. The Director's job is not only to effectively manage the
Agency's nearly 5,000 employees, but also to ensure that the
Marshals Service continues to accomplish its many day-to-day
missions, from courthouse security, witness security, fugitive
investigations, and prisoner detention services. The Director
of the Marshals Service, without a doubt, has a very difficult
and challenging job. This already tough job was made even more
challenging in the post-9/11 world, particularly with respect
to the unique security challenges that terrorism places upon
the entire law enforcement structure of our nation.
John Clark, in my humble judgment, is up to that
responsibility in every respect. For the past 6 months, he has
had the privilege of serving as the Acting Director of the
Marshals Service. His past experience served him well for that
position. Prior to taking over as the Acting Director, Mr.
Clark worked for nearly 3 years as the United States Marshal
for the Eastern District of Virginia, the very district that
prosecutes most of America's high-profile terrorist-related
cases. How fortunate we are in Virginia to have someone with
his experience to take on this responsibility.
I would now like to ask that the balance of my statement be
placed in the record.
Senator DeWine. It will be made a part of the record,
Senator.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Senator Warner. I defer to my colleague. I am chairing a
hearing downstairs, so I must leave.
Senator DeWine. We understand. Thank you very much,
Senator.
Senator Allen.
PRESENTATION OF JOHN F. CLARK, OF VIRGINIA, NOMINEE TO BE
DIRECTOR OF THE UNITED STATES MARSHALS SERVICE, BY HON. GEORGE
ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman, Senator Feinstein,
members of the Committee. I join with my good friend and
colleague, Senator Warner, in giving my highest recommendation
of John Clark in his position and nomination as Director of the
United States Marshals Service. Those of us from Virginia
believe this is an outstanding nomination, not just for
Virginia but for our entire country.
Let me add a few details to what Senator Warner said. John
Clark, if you look at his record, has served this country very
well for 22 years in a career with the Marshals Service, most
recently as Acting Director since August of 2005. Prior to
being named Director, he was the U.S. Marshal for the Eastern
District of Virginia. It is important to recognize some of the
challenges he faced there in the Marshals Service and the
courtrooms and some really important matters to make sure the
courtrooms were safe and they were secure in the conduct of
some very high-profile judicial proceedings, including that of
convicted spy Robert Hansen, terrorist suspects John Walker
Lindh and Zacarias Moussaoui, and several members of the very
dangerous MS-13 gang.
Mr. Clark has extensive law enforcement experience. Prior
to his role in the U.S. Marshals Service for the Eastern
District, he served in a variety of positions, including Chief
of Internal Affairs Division, Chief of the Internal Fugitive
Investigations Division. And before joining the Marshals
Service, he was a United States Capitol Police officer and a
U.S. Border Patrol agent as well.
John Clark has worked diligently in support of creation of
the Capitol Area Regional Fugitive Task Force, which, under the
Marshals Service leadership, has joined Federal, State, and
local law enforcement agencies from Baltimore, Maryland, to
Norfolk, Virginia, in a cooperative, highly successful
partnership to fight crime and remove dangerous fugitives from
our streets and communities. The task force has been very
effective in capturing some of this region's most violent
criminals--for which we are very grateful. He has put together,
just since being the Acting Director, working groups of
operational and administrative personnel to review a variety of
court security issues, a topic that I know is very important to
members of this Committee and the judiciary. His steadfast
leadership during this time really has delivered a message that
judicial security remains a top priority.
So with his breadth and depth of experience, I have full
confidence that the President has truly nominated a person with
integrity, which is absolutely essential, since the motto of
the Marshals Service is ``Justice, Integrity, and Service.''
John Clark, in my view, meets all those requirements and then
some. I am glad his bride Lucy is here with him, and I hope
that this Committee will move as expeditiously as possible to
move this nomination forward toward confirmation.
And I thank you, Mr. Chairman and Senator Feinstein, for
your attention and allowing me to be with you all this morning.
Senator DeWine. Senator Allen, thank you very much. A great
statement. And we know that you have other business as well,
and we will excuse you. We thank you very much. Appreciate
that.
At this point, as United States Senator from Ohio, I would
like to say a few words to introduce my fellow Ohioan, Judge
Jack Zouhary.
Before I do, I should mention that Senator George Voinovich
sends his regrets. He is actually traveling with the President
of the United States today in Ohio. He had hoped to be here to
help introduce the Judge, but unfortunately is not able to do
so. He does have a written statement which I will make part of
the record at this point.
PRESENTATION OF JACK ZOUHARY, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF OHIO BY HON. MIKE DEWINE, A U.S.
SENTATOR FROM THE STATE OF OHIO
It is my pleasure and honor to introduce my fellow Ohioan,
Judge Jack Zouhary, to the members of this Committee today. The
Judge currently serves on the Lucas County Common Pleas Court
bench. President Bush has nominated him to serve as a Federal
judge in the Northern District of the State of Ohio.
Let me welcome the Judge's family members who are here with
him today--his wife Kathleen, his daughters Katie Marie and
Alexis. We thank all of you for joining us and welcome you to
our Committee. We know that you are very proud of your husband
and your father.
Judge Zouhary has had a long and accomplished legal career,
a career with 30 years of legal experience that has given him
the background and the understanding of our legal system to
successfully take on the role of a Federal judge. He attended
Dartmouth College, where he received his undergraduate degree
before returning to his home town to earn his law degree at the
University of Toledo College of Law.
The Judge began his legal career with Robison, Curphey and
O'Connell, where he worked for 23 years as an associate and
then as a partner. During this time, he had a varied practice,
representing individuals and businesses on a range of legal
issues with an emphasis on civil trial practice and corporate
matters.
In the year 2000, the Judge became the Senior Vice
President and General Counsel for S.E. Johnson Companies, Inc.,
a large highway contractor and asphalt producer. Judge Zouhary
was responsible for all the corporation's legal issues,
including environmental safety, human resources, contract
negotiations, supervision of risk management, union grievances,
and litigation.
In the year 2004, the Judge accepted a position as Of
Counsel with the law firm of Fuller and Henry. He remained with
Fuller and Henry until 2005, when he was appointed by Governor
Bob Taft to the Lucas County Common Pleas Court. In Ohio the
Common Pleas Court is our highest State trial bench that hears
all major civil as well as criminal cases.
During his time as an attorney in private practice, the
Judge distinguished himself as an excellent litigator. He was
honored by being selected as a member of the prestigious
American College of Trial Lawyers. This is notable because
membership in the American College of Trial Lawyers is by
invitation only and is limited to the best of the trial bar.
Judge Zouhary clearly meets that criterion.
Even more important, Judge Zouhary has long been committed
to the ideals of civility and professionalism in the legal
field, something that sometimes we don't see enough of these
days. He frequently has presented lectures focusing on legal
ethics and civility in the practice of law for continuing legal
education seminars. He is also a member of the Morrison Waite
Chapter of the Inns of Court, a nationwide organization
dedicated to improving the skills, professionalism, and ethics
of the bench and the bar.
Judge Zouhary's commitment to serving the community as a
professional is also exemplified by his membership in the
Toledo Rotary Club as well as a broad range and array of other
charitable activities ranging from pro bono work for a local
church to service at a community soup kitchen.
Although he has been a common pleas judge for only a
relatively short period of time, Judge Zouhary has already
begun to distinguish himself on the bench. He has been working
diligently to clear a very large backlog of cases on his
crowded docket and successfully made a good deal of headway in
that effort. Most important, attorneys who have appeared before
him, criminal and civil, prosecution and defense, speak in
glowing terms of his talent, his fairness, and excellent
judicial temperament.
With Judge Zouhary's impressive record as a legal
professional and community leader, it should come as no
surprise that the American Bar Association was unanimous in
giving him its highest rating of Well Qualified.
Judge Zouhary is an outstanding nominee, and I gladly, I
gladly join his supporters in the belief that he will serve as
a great Federal judge for the Northern District of Ohio.
Let me ask all of the three nominees to now come forward
and sit where your name tag is. I would ask you to remain
standing, if you would. I will swear you in. Will you all raise
your right hand, please?
Do you swear that the testimony you are about to give
before this Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Judge Larson. I do.
Judge Zouhary. I do.
Mr. Clark. I do.
Senator Feinstein. Mr. Chairman, may I ask that series of
letters concerning Judge Larson be entered into the record?
Senator DeWine. Those will certainly be made a part of the
record.
We would invite each one of you to make any opening
statement that you would like to make. Judge Larson, we would
start with you. And we would invite you to introduce any family
members that have not been introduced. Or if you would like to
introduce them again, that would be fine.
STATEMENT OF STEPHEN G. LARSON, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
Judge Larson. Well, thank you very much, Mr. Chairman.
Senator DeWine. It is just kind of a family day here today.
[Laughter.]
Judge Larson. Well, thank you very much, Mr. Chairman,
Senator Feinstein. It is a tremendous honor, a real privilege
to be here this morning.
I want to thank the Senate Committee for inviting me, for
holding this hearing. I want to thank the Senate staff for all
of their hard work. I do want to thank the President as well
for his confidence in nominating me and for his counsel, and
all of the individuals all they way down to the bipartisan
committee that Senator Feinstein referred to. And also, my
colleagues on the judiciary for their encouragement. I know we
have members of the Administrative Office here today. I
appreciate their support.
I would like to take a moment to introduce a few family
members that I hadn't previously introduced.
Senator DeWine. That would be great.
Judge Larson. My mother and my father are here today, Dale
and Sheila Larson.
Senator DeWine. Why don't you all stand up? I know you are
very proud. Thank you.
Judge Larson. My sister Marette. And then, of course, you
met previously my wife Dena and the six wonderful children.
Senator DeWine. And what is the age range?
Judge Larson. The oldest, Michaela, is 9. She's in fourth
grade. And it goes all the way down to Mary, who unfortunately
had to step out for a moment. She just turned 1 a few weeks
ago.
Senator DeWine. Very good.
Judge Larson. She's out there with her brother Thomas,
who's 2, who suffers from the terrible twos right now.
[Laughter.]
Senator DeWine. Well we welcome them. Very good.
Judge Larson. Well, thank you very much. Like I say, it's
truly a privilege to be here. If confirmed and if appointed, I
truly will do all I can to continue my public service to this
country and to assist as I can the Nation in its making true
its promise of equal justice under law.
[The biographical information of Judge Larson follows.]
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Senator DeWine. Judge, thank you very much.
Judge Zouhary.
STATEMENT OF JACK ZOUHARY, NOMINEE TO BE UNITED STATES DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Judge Zouhary. Thank you, Mr. Chairman, for your kind
opening remarks. I want to express also my appreciation to you,
Senator DeWine, and also to Senator Voinovich, for your
recommendation to the President, for his confidence and my
nomination.
I also want to acknowledge the colleagues, the lawyers and
judges, the family and friends back home who have lent their
support during this process. Especially, I want to acknowledge
the sacrifice of my parents. My father, if he were here today,
I know would be very proud. My mother is back home in Toledo
beaming, I am sure; my dear sisters back in Ohio, with their
families; and last, certainly not least, but perhaps foremost,
the love of my bride of 27 years, Kathleen.
And, Kathleen, why don't you stand?
[Ms. Zouhary stood.]
Judge Zouhary. And my two daughters, Katie Marie and
Alexis, who have been traveled along with me on this judicial
journey, and I very much appreciate all they have done.
And I appreciate the opportunity to be here today, and look
forward to meeting the high expectations that people have laid
out in front of me.
Thank you.
[The biographical information of Judge Zouhary follows.]
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Senator DeWine. Thank you, Judge, very much.
Mr. Clark, welcome.
STATEMENT OF JOHN F. CLARK, NOMINEE TO BE DIRECTOR, UNITED
STATES MARSHALS SERVICE
Mr. Clark. Thank you, Mr. Chairman, Senator Feinstein. I am
very honored to appear before the Committee as the President's
nominee to serve as Director of the United States Marshals
Service.
I also wanted to thank the Attorney General and the
President for the confidence they have placed in me, and it was
also an additional honor to have both Senators Warner and Allen
appear this morning to express their confidence in me in
supporting me.
As a career employee of the Marshals Service, nearly 23
years, I can say without a doubt this is one of the most
honorable things I have had to do in my career. So I look
forward to answering your questions.
Although my wife, Lucy, has been introduced, I would also
like to thank her, my wife of 17 years, Lucy, for being with me
today and to also be the captain of my support team.
Thank you. I look forward to answering your questions.
[The biographical information of Mr. Clark follows.]
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Senator DeWine. Before I get started, I have letters of
support from Congressmen Sessions and Boozman which will be
entered into the record at this point.
Judge Zouhary, let me start with you. You are in the
middle. We will just start with you. You have been a frequent
lecturer on the topic of civility in the practice of law. How
did you get into this area, and what does that mean, actually?
Judge Zouhary. I got into it because the practice of law
changed from the time I first started, and when I first
started, there were no special rules on civility and
professionalism. But for whatever reason, that tended to
deteriorate, and I think it is perhaps reflective not just of
our judicial system, but perhaps society as a whole.
In any event, it was a topic of concern to me as a
practicing trial lawyer who has spent a number of years working
in different courtrooms with different judges. I noted
different temperaments, different attitudes, and I believed it
important that we return a bit more of the professionalism to
our profession that had perhaps been lacking.
So I began to speak, and one talk led to another and
another invitation, and now I use it not only with lawyers, but
also with civic groups as well, in attempt to reverse, and I
think somewhat successfully, the trend that--
Senator DeWine. What kind of reaction do you get?
Judge Zouhary. Positive reaction, a very positive reaction
from both lawyers and again from those civic groups that I have
spoken with.
Senator DeWine. Does that reflect in your work on the
bench?
Judge Zouhary. I, of course, take that with me to the
bench, and in my courtroom strive to maintain the highest of
those standards of civility and professionalism. I find that
one can be an advocate, which I was for many years, and yet
maintain a professional decorum. It does not have to reduce it
to the lowest level, and so in my courtroom, I am--I think a
judge's role is to be fair and firm, maintain a professional
atmosphere.
I have found that when tension--and there are times when it
does get tense. Humor can be a great way to de-fuse the
situation and allow the parties to resume a professional
decorum. And I have had jurors, frankly, thank me for my
efforts in keeping trials moving and keeping them on a
professional level.
Senator DeWine. Judge, you did some mediation work on the
Federal Court Panel of Alternative Dispute Resolution. How did
you get involved in that and what has that taught you and what
impact has that had on your work as a Common Pleas judge, and
what impact might that have in your role if you are confirmed
by the U.S. Senate, if you go to the Federal district court?
Judge Zouhary. Thank you. That panel, when it was started--
and I forget the year--began because there was a perceived need
because of the clog in the docket--a way to help move cases.
And they asked for volunteers and I volunteered and was one of
a group that was instructed and then became a mediator, where
you are assigned cases.
And it is a quasi-judicial role in the sense that you take
on that case and try to resolve it. So I was able to shed my
advocate hat and put on a neutral or mediator hat and help with
cases to alleviate the docket of Federal judges, frankly, that
were becoming pretty overburdened. I have taken that on and
have done some private mediator.
And as a judge now, I take a proactive role and am actively
engaged in settlement conferences, and try to use that mediator
role to again resolve those cases that the parties are willing
to resolve, realizing that there are some cases that need to be
tried. And that is what we are as trial judges; we are there to
try cases, as well, but I find it is a great way to help move
cases and to keep the docket moving, yet giving each case the
attention it deserves.
Senator DeWine. Judge, you have spent most of your career
not on the bench. In other words, you have had--I gave your
introduction, but a rather interesting career, some of it in
the private practice of law, some of it in corporate life, and
only recently on the bench.
Why do you want to be a Federal judge?
Judge Zouhary. Well, I want to take the experience of the
many courtrooms, which I viewed as my classrooms as a trial
lawyer, and also now my own classroom our courtroom as a State
court judge--take those experiences to help improve the
judicial system.
And there are a few things that one can do as a Federal
judge that one cannot do as a State judge. I believe the cases
are more challenging in Federal court. I would also like to
expand the audience for my civility and professionalism talk.
And, finally, something very dear to me is the opportunity to
preside over immigration ceremonies, which a Federal judge can
do.
As a first-generation American who grew up with a number of
immigrants, hard-working immigrants, a number of whom were part
of what some have called the greatest generation, they greatly
inspired me and it would be quite an honor for me to have the
opportunity to welcome new citizens to this country.
Senator DeWine. Judge Larson, let me kind of followup with
you on that question. You have served as a magistrate judge now
for, what, 5 years, I guess?
Judge Larson. Five years.
Senator DeWine. Explain the duties of that office and how
you think it has prepared you to serve as a district court
judge, and then maybe kind of tell me why you want to be a
district court judge.
Judge Larson. Well, thank you, Senator. I have thoroughly
enjoyed these last 5 years as a magistrate judge. It has been a
real privilege to serve the people of the Central District in
that capacity.
As a magistrate judge, I have both civil and criminal
responsibilities. The criminal cases are misdemeanor cases, as
opposed to the felony cases that a Federal district judge would
have. And on the civil side, I have actually been fortunate to
have been involved in a pilot project these last 2 years which
has placed me on the wheel along with the two other active
district judges in the Eastern Division of our Central
District. Of course, the parties must consent to a magistrate
judge before the case proceeds, but it has provided me an
opportunity to have a wide range of civil cases, civil trials.
And I think all of that experience together has well prepared
me for the opportunity to be a district judge.
It has also engendered in me the desire to become a
district judge. I have thoroughly enjoyed the civil caseload. I
spent 9 years in the U.S. Attorney's office doing mostly felony
criminal work, and I look forward to being able to have an
opportunity to do that if I were to be confirmed.
I love being a judge. I love the role of the judiciary. I
think the judiciary has a very important role to play in our
society, and so that is why I want to be a district judge.
Senator DeWine. Judge, I was intrigued by reading that you
have traveled extensively in Eastern Europe. You have spoken to
foreign audiences about criminal justice and the rule of law.
How did you get into doing that and what have you learned
from that? Just tell us a little bit about that experience. I
think that is kind of an interesting background to bring to the
Federal bench.
Judge Larson. Well, when I was in the U.S. Attorney's
office in Los Angeles, I was assigned to the organized crime
strike force that Senator Feinstein made reference to. And at
that time, we were having--it was shortly after the fall of the
Soviet Union and we were having a large influx of organized
crime elements from that part of the world--Brighton Beach, in
New York, places in Los Angeles, a few other major metropolitan
cities.
So the Justice Department decided to indicate an individual
who would be the Russian organized crime coordinator for each
judicial district in which there was this activity, or believed
to be this activity. I was selected probably largely because I
knew a little bit about Russia. I had studied Russian language
and culture and history at Georgetown University.
And, of course, if you know a little bit about something,
all of a sudden you are the expert in the area. And since no
one else stepped forward, I was assigned to do that, and it was
a tremendous opportunity. I was able to work on a lot of cases
with colleagues from overseas, and as part of that I also had a
chance to go over on behalf of the Justice Department to speak
at conferences which were designed to try to spread the rule of
law.
From that experience, I developed a tremendous appreciation
for the importance of the rule of law. I saw firsthand and
heard firsthand accounts of what it was like to live in a
totalitarian society in which the rule of individuals or the
rule of an individual party was substituted for the rule of
law.
I spoke to judges who held that role under the communist
system and who were now struggling to develop a judicial system
very much modeled after many Western countries, and the
challenges that they were facing. And in trying to provide some
assistance or insight on our effort, it gave me a renewed
appreciation for what a valuable system we have here, a renewed
appreciation and commitment on my part to the rule of law.
Senator DeWine. Judge, you have spent practically your
entire career working daily in the Federal courthouse as a
prosecutor and magistrate judge. You certainly must know the
Central District of California's caseload quite well. What do
you think are the unique challenges of that particular court?
You have kind of sized it up, I am sure.
Judge Larson. That is kind of the obvious one, is the size.
It is a huge judicial district. There are approximately 18
million people in the Central District, which I believe makes
it the largest judicial district in the country by population.
We have currently, I believe, 28 active district judges, 23
magistrate judges. And so the first challenge is just dealing
with the sheer volume, both in terms of the number of cases,
the population, the size of the district. It is quite large. So
that is probably our biggest challenge.
We also have the challenges that are presented, I suppose,
by having a very diverse population. While that is very
rewarding and it is a great asset for Southern California, it
raises a whole panoply of different issues that find their way
in one form or another into Federal court.
Senator DeWine. Let me ask both of you, Judge Larson and
Judge Zouhary, a question we ask all nominees. Supreme Court
and Federal circuit court precedents are binding on district
courts, as you know. Are you committed and willing to follow
the precedents of the higher courts faithfully and give them
full force and effect even if you might personally disagree
with those precedents?
Judge Zouhary?
Judge Zouhary. Yes.
Senator DeWine. Judge Larson?
Judge Larson. Yes.
Senator DeWine. Mr. Clark, what do you think is the biggest
challenge facing the Marshals Service?
Mr. Clark. I seem to be having a little feedback here with
this microphone, but--
Senator DeWine. Technical problems.
Mr. Clark. Technical problems, yes.
Senator DeWine. The biggest challenge today.
Mr. Clark. That could be the first challenge from Capitol
Hill, yes.
Thank you, Chairman. There are a number of challenges, I
think, that face the Marshals Service. And as you know from our
history, and as Senators Warner and Allen explained, we have a
rather unique series of missions we perform, be it detaining
nearly 55,000 inmates around the country in various regional or
local jails; protecting Federal witnesses; apprehending
fugitives, which last year, with our State and local Federal
partners, arrested nearly 89,000 nationally.
But one of the greatest challenges that I have faced since
becoming the Acting Director--and it is one that I believe the
two gentlemen sitting with me here today can appreciate--is
that of judicial security. We are at a point in our history
where the challenges from terrorism, other individuals who have
attacked members of the judiciary, have required us to rethink
our strategies and our game plan, if you will, on how we will
do our judicial security mission. So to me, one of the first
and foremost challenges I have faced is providing first-class,
superior protection to the members of our judiciary.
Senator DeWine. Without compromising security or discussing
any details about security, which you are obviously not going
to do, what changes have been made, Mr. Clark, since the recent
tragedy regarding the tragic murder of Judge Lefkow's husband
and mother? It concerns us all. What are you doing differently?
Mr. Clark. Sure. Mr. Chairman, soon after I was appointed
as the Acting Director of the Marshals Service, I realized that
we needed to look at all the various strategies, the types of
things we do to protect the Federal judiciary, and looking at
how we are doing it now compared to the days where we had used,
I would say, strategies that could be in need of improvement.
A couple of the areas that I immediately sought to improve
is how we collect and analyze threats and the intelligence on
those threats, the analysis of those threats. I immediately
formed a working group to look at how we can do that better. I
put a rather fast time line on this working group to recommend
to me how we can make some significant improvements to doing
the threat analysis and the threat intelligence process
following the tragedy that happened in the Judge Lefkow
situation, which, as you know, required a lot of additional
investigation on the threat and the threatener in that case.
They returned to me a number of recommendations. Just to
share one or two of them with you, for example, I am in the
process of formulating a 24/7 threat analysis center at our
headquarters. I believe this will provide not only to the
judiciary, but to our field offices around the country in our
94 judicial districts real-time analysis of threats that come
in so that we can respond to them quickly and thoroughly.
Additionally, I asked a separate working group to look at
how we can explore the use of technology to provide electronic
observation of judges' residences, such as in the Judge Lefkow
situation, if we need to do protective details. This particular
working group also made some very good recommendations as to
how we can improve our technology and the use of technology to
protect the judiciary.
Senator DeWine. Well, I appreciate that. As you know, the
Judiciary Committee held an oversight hearing entitled
``Protecting the Judiciary at Home and in the Courthouse.''
That was held on May 18, 2005. Judge Roth testified at that
time that the U.S. Marshals Service fails to adequately consult
and coordinate with the Federal judiciary regarding judicial
security.
I wonder if you can react to that at this point. What has
the Marshals Service done to address those specific concerns?
Mr. Clark. Yes, Mr. Chairman. Soon after I assumed the
duties of the Acting Director of the Marshals Service, one of
my very first meetings with members of the judiciary concerned
working with the Administrative Office of the U.S. Courts and a
number of the Committee members on the national Judicial
Conference's Committee on Judicial Security. I met with them
specifically to discuss this very issue about how I can
personally improve the coordination and the collaboration with
the members not only of the judiciary, but of the
Administrative Office of the U.S. Courts.
I also should note the two working groups that I mentioned
a few minutes ago--I invited, and received great response from
the Administrative Office of the U.S. Courts, to serve as
Committee members on those two working groups. Most recently, I
went to Tucson, Arizona, to meet with the Judicial Security
Committee. I outlined for them a number of the recommendations
that I intend to take, should I be confirmed by this Committee,
to improve the cooperation and collaboration with the courts.
Senator DeWine. So your pledge to this Committee is that
one of your priorities will be very excellent communication
with the judges, then?
Mr. Clark. That is certainly my pledge.
Senator DeWine. They are obviously part of your main
constituency.
Mr. Clark. Very much. That is certainly my pledge, Mr.
Chairman.
Senator DeWine. Following that May hearing, then-Director
Reyna received a series of written followup questions from
Committee members. I believe, to my knowledge, at least, these
questions were never answered by the Director at that time and
remain unanswered. Can you check into that and see if we could
get answers to those questions? And if you don't have them, we
can supply them to you.
Mr. Clark. We do have them and we are working on getting
them answered, having received them after I assumed the--
Senator DeWine. I understand you didn't--
Mr. Clark. Yes, sir. Yes, Chairman, we are working on them.
Senator DeWine. We would appreciate that.
Mr. Clark. Sure.
Senator DeWine. Let me go back to these tragic murders.
Congress passed an emergency supplemental appropriations bill
which was signed into law in May of 2005. It specifically $11.9
million to the Marshals Service for increased judicial security
outside of courthouse facilities. That funding specified
priority consideration of home intrusion detection systems in
the homes of Federal judges.
To my knowledge, none of the money has yet been used on
home intrusion detection systems. Is that correct?
Mr. Clark. Well, not entirely, Mr. Chairman. We have
recently begun the implementation--
Senator DeWine. You have begun to do that now?
Mr. Clark. Correct. Just within recent months after I
assumed the acting directorship, I began working on allocating
and using the funds to install the home intrusion alarms.
Senator DeWine. It is my understanding that the U.S.
Marshals Service is not currently statutorily charged with
protecting the United States Tax Court. Is that your
understanding?
Mr. Clark. That is correct, Mr. Chairman.
Senator DeWine. This court is often in relatively unsecured
locations, and I think we all can imagine that it might be
subject to some problems and there might be some security
problems.
What is your opinion about the possibility of Congress
adding the Tax Court to your jurisdiction?
Mr. Clark. Well, Mr. Chairman, we, as you know, now have
about 2,200 judges nationally that we are in charge of
protecting, as well as approximately 5,500 U.S. Attorneys.
Senator DeWine. I know you probably want some money to do
it.
Mr. Clark. Yes, I would be concerned about the resources.
Senator DeWine. You want some resources, but if we gave you
the resources, could you deal with that?
Mr. Clark. Mr. Chairman, the judges certainly deserve the
best protection that we can give them and we would react
appropriately to any legislation that would require us to take
on those additional duties, as you noted, with the right
resources.
Senator DeWine. Talk to me a little bit, Mr. Clark, about
apprehension of fugitives. We have noticed some innovative
programs in Ohio recently by the Marshal there, and I wonder if
you could just talk about where you see that going. It seems
that this is an area where boldness and innovation can bring
about some fairly dramatic results.
Mr. Clark. Sure. Mr. Chairman, the Marshals Service, as you
have noted, has a longstanding history of apprehending
dangerous fugitives, lowering violent crime. And as you pointed
out as well, one of our, I think, very innovative, excellent
fugitive apprehension projects has come forth from your
particular State.
Senator DeWine. We are kind of proud of that.
Mr. Clark. Well, I just recently was--
Senator DeWine. Not that I did anything about it, but you
all did, and we are proud you did it.
Mr. Clark. Well, thank you, thank you. The particular
program you are referring to, Operation Safe Surrender, allows
fugitives to surrender to community clergy as a way to have a
sort of a neutral site, if you will, for a fugitive to
surrender. That softens, if you will, sort of the law
enforcement response that sometimes comes with the apprehension
of fugitives.
It also, as we noted in that particular instance, resulted
in about 850 fugitives turning themselves in. Very remarkable
to say it even went beyond our target goals and desired
thinking that that many fugitives would turn themselves in. So
we were delighted with the results.
I am pleased to report to the Committee that since I have
served as Acting Director, I have approved an additional eight
cities around the country that have a particularly high violent
crime ratio where we hope to utilize this program that
originated from Ohio to be very effective.
Senator DeWine. Well, I want to again commend you for that
program. From what we have seen in Ohio, it looks to be a very
effective program. That type of innovation and kind of thinking
outside the box seems to make a lot of sense and it seems to
work very, very well.
Mr. Clark. Thank you.
Senator DeWine. Let me just say that we look forward to
working with you. Your job is a very important job. You have
some very good people around the country who are doing very,
very tough work everyday. They are protecting some very
important people, but they are also getting some very tough
people off the streets. If you need our assistance or you need
our help or you need additional resources, we hope that you
won't hesitate to come to us.
Mr. Clark. Thank you, Senator.
Senator DeWine. So we look forward to a good relationship
with you.
Mr. Clark. Likewise. Thank you, Senator.
Senator DeWine. Thank you.
Let me ask our two judge candidates, Judge Larson and Judge
Zouhary, a question about how you would describe how you run a
court. One of the complaints I always hear from lawyers and
kind of a complaint I had when I practiced law when I was a
prosecutor was judges who would not let lawyers kind of try
their case.
What is the balance there between controlling your own
courtroom, which you have to do, but also letting a prosecutor
or a U.S. Attorney or a defense counsel have some leeway in
trying their case? You know what I am talking about.
Judge Larson?
Judge Larson. Thank you, Senator. Yes, as a former
prosecutor who spent a lot of time in the Federal courts and
observing the way that different Federal judges ran their
courtroom, I definitely developed--
Senator DeWine. You have kind of seen it all.
Judge Larson. I haven't seen it all by any sense, but I
have seen quite a bit.
Senator DeWine. You have seen a lot of variation, range.
Judge Larson. I have tried to strike that balance in my own
courtroom. I will give you one example. During the voir dire
process, which, of course, is a very important process by which
we select a fair and impartial jury, there were some Federal
judges who would never allow attorneys to ask any questions
themselves. There were others that perhaps allowed them to go
on a bit too much.
Senator DeWine. Right.
Judge Larson. And I have tried to strike a balance there by
always making sure that the attorneys do have an opportunity to
ask some followup questions after I have asked the general
questions, but placed what I considered to be reasonable
limitations on that. That is just one example.
I do think it is important for judges to be aware that you
need to maintain control of the courtroom. There is a need for
firmness, but here is also a need for gentleness and allowing
attorneys to try their case.
Senator DeWine. Judge Zouhary.
Judge Zouhary. The only thing I would add to Judge Larson's
fine answer is that I promised myself when I took the bench
that I would not forget my years as a trial lawyer and utilize
those experiences and to remember what it is like to be on the
other side of the bench.
Senator DeWine. I want to congratulate our children in the
audience. They are doing well. We haven't put them to sleep yet
and we won't press our luck here. Thank you all very much.
The record will remain open, which means that other members
of the Committee can send you questions. We will keep that open
for a week. The record will actually close on Wednesday,
February 22, at 5 p.m. So that is the official time the record
will close. At any point until then, written questions can be
submitted to you. If you get written questions, we would hope
that you would turn those around very quickly. That will
expedite our procedure. If they are not turned around, we can't
move, so we will wait for those. We hope then to have a markup,
or markups, depending on the pleasure of the Chairman and
ranking member, and move your nominations forward.
So we appreciate it. You have been very helpful and we wish
you all good luck, and we thank the families for being here and
we congratulate all of you. Thank you very much.
[Whereupon, at 10:51 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF NORMAN RANDY SMITH, OF IDAHO, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT; AND PATRICK JOSEPH SCHILTZ, OF MINNESOTA,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA
----------
WEDNESDAY, MARCH 1, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 4 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Tom Coburn
presiding.
Present: Senator Coburn.
OPENING STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE
STATE OF OKLAHOMA
Senator Coburn. The Committee will come to order.
Today we will have a confirmation hearing for two of the
President's judicial nominees. I hope we can get your
nominations voted out of the Committee shortly and through the
Senate as fast as possible.
We have no Ranking Member here as yet, so if they show up,
we will allow them an opportunity to make a comment.
We are very privileged to have our distinguished colleagues
here from the great State of Idaho as well as Senator Coleman
from the State of Minnesota. Welcome, and we will start with
Senator Craig.
PRESENTATION OF NORMAN RANDY SMITH, OF IDAHO, NOMINEE TO BE
CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. LARRY CRAIG, A
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Craig. Well, Mr. Chairman, thank you very much for
the courtesy that you have extended to us. I say that of the
Chairman of the full Committee, Senator Specter. These hearings
had been canceled because of scheduling conflicts, and when
Senator Crapo and I met with him on the floor earlier in the
day, he recognized that we had nominees who had flown literally
the distance across our Nation to be here today, and
recognizing that--and I think the Committee record also ought
to show that I then appealed to you. Your schedule was tight,
and you adjusted your schedule accordingly, and that is truly
appreciated.
So I do appreciate the opportunity to appear before the
Committee today to introduce Randy Smith, who has been
nominated to fill the Ninth Circuit seat in Boise, Idaho, being
vacated by Judge Stephen Trott.
Randy Smith comes to you with considerable judicial
experience. He has been a State district judge in Idaho's Sixth
Judicial District for a decade. He has served as a felony drug
court judge and a pro tem Justice for the Idaho Supreme Court
and the Idaho Court of Appeals. He has a wealth of experience
in both the practice of teaching law and he has been an active
member of the Bar Association and other professional
associations, Mr. Chairman.
He has a life beyond law as well, as most of our judges do.
He is deeply involved in his community and his State. He has
held positions of leadership and responsibility in a wide
variety of organizations. All of these things you can see for
yourself in Judge Smith's long resume.
What you cannot see there and what I would like to share
with you is a reputation that Randy Smith has earned in the
State of Idaho amongst his neighbors, his peers, and the people
he serves. I hope today you will see what Idahoans have come to
like and respect in Judge Smith. He is a fine man, the kind of
person that you would want to have as a Scout leader for your
kids. He is a principled and a knowledgeable community citizen,
the kind of person you would want to have on your team or on
your board. He is a thoughtful and objective judge, the kind of
judge you would trust to render an impartial and well-reasoned
decision.
Men and women come to the bench by many different roads,
including academia and the elected public office. Randy Smith's
real-world experiences give him a perspective and skill set
that will be extremely valuable on the appellate court. His
character and competence fits him to advance to this important
position, and Idahoans are confident he will be a tremendous
asset to our region and to the Nation as a judge on the Ninth
Circuit Court of Appeals.
Finally, let me say a few words about the history of this
particular seat, Mr. Chairman, because it may well be discussed
before the Committee. As the Committee well knows, there are
geographic traditions attached to some court seats. In this
case, this seat's pedigree is very mixed. In 70 years, it has
moved from Oregon to Washington State to California and to
Idaho. Although Judge Trott, the judge that is going senior,
worked in California during his career, he was nominated to the
seat as a Virginian and he worked from Boise, Idaho, for all of
the full 19 years of his tenure. So that is a rather mixed
approach to get to where we need to get, but it clearly
explains what some may question. In fact, the seat has resided
in Idaho longer than it has resided in California.
I do not believe any tradition was violated within
President Bush nominated an Idahoan to this seat, and I support
his decision to maintain the status quo by keeping the seat in
Idaho. I know the California Senators have expressed concern as
to why this is, and that is why I speak to the history of this
seat of the Ninth Circuit.
Again, Mr. Chairman, and to the full Committee, thank you
very much for allowing these hearings to go forth this
afternoon.
Senator Coburn. Thank you, Senator Craig.
I know that Senator Coleman is here, and you were supposed
to be sitting in the Chair for me. I hope somebody is doing
that. I would feel rest assured that that has been taken care
of.
Senator Coleman. I think they took care of that, Mr.
Chairman. Thank you.
Senator Coburn. Senator Crapo?
PRESENTATION OF NORMAN RANDY SMITH, OF IDAHO, NOMINEE TO BE
CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. MIKE CRAPO, A U.S.
SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you very much, Mr. Chairman. I want to
join with Senator Craig in personally thanking you for
accommodating and changing your schedule so that we could
accommodate Judge Smith, who has literally traveled across the
country to be here and faced the prospect of having the hearing
canceled had you not been willing to do that. So thank you. I
also thank the Chairman of the full Committee, Senator Specter,
for being so willing to work with us to accommodate these
changes.
Mr. Chairman, I am pleased to also join with Senator Craig
in introducing Randy Smith. On December 16, 2005, President
Bush nominated Judge Smith to fill the seat on the Ninth
Circuit Court of Appeals that was, as Senator Craig said,
vacated by Judge Stephen Trott of Idaho who took senior status.
And it is a pleasure for me to be able to be here, not only
because we have an outstanding Idahoan, but because Judge Smith
is a personal friend of mine whom I have known for many years.
And I could not be more happy to sit before this Committee to
recommend and support any nominee from the State of Idaho than
Randy Smith for this position.
Since 1996, Judge Smith has served as district judge for
the Sixth Judicial District of the State of Idaho, and it is my
understanding that the American Bar Association has given him a
unanimous ``well qualified'' rating for his nomination to the
Ninth Circuit Court of Appeals.
Randy Smith earned both his undergraduate and law degrees
from Brigham Young University. Throughout his career, both in
private practice and as a judge, Randy Smith has continued to
be a student and teacher of the law. He taught courses in
business law and tax law at Brigham Young and later at Boise
State University. Since 1993, he has served on the faculty at
Idaho State University teaching legal environment and business
law.
Prior to becoming a judge, Randy spent more than 15 years
in private practice gaining significant experience before both
the State and Federal courts. Judge Smith is a member of the
bar of the U.S. Supreme Court, the Ninth Circuit Court of
Appeals, the U.S. District Court for the District of Idaho, the
U.S. Tax Court, the Idaho Supreme Court, and all courts in
Idaho.
In addition to his current position as district judge in
Idaho, Judge Smith also serves from time to time as pro tem
Justice on the Idaho Supreme Court, as a Justice of the Idaho
Court of Appeals, and as a temporary judge in the district
courts throughout the State of Idaho. He mediates approximately
100 Federal and State civil cases each year.
In 2004, Judge Smith received the George G. Granada, Jr.,
Award presented by the Idaho State Judiciary in recognition of
demonstrated professionalism as an Idaho trial judge and for
motivating and inspiring his colleagues on the bench by his
character and his actions. In 2002, he received the Outstanding
Service Award from the Idaho State Bar Board of Commissioners.
Judge Smith is also a member of the Board of Directors and
is the Past President of the Idaho State Civic Symphony. It is
clear that the President has nominated a well-qualified judge
in Randy Smith to fill this vacancy in the Ninth Circuit, and I
urge this Committee to approve the nomination.
Before I conclude, Mr. Chairman, I have a lot of material
as well, as Senator Craig has presented, about the history of
this seat. But I think that it is very clear that the President
violated no precedent and, in fact, followed the best precedent
that could be taken from the history of this seat in nominating
a candidate from Idaho, and certainly with such an outstanding
and well-qualified candidate as Judge Smith, we should proceed
rapidly with this nomination.
Thank you.
Senator Coburn. Senator Coleman?
PRESENTATION OF PATRICK JOSEPH SCHILTZ, OF MINNESOTA, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA, BY HON.
NORM COLEMAN, A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Coleman. Thank you, Mr. Chairman, and I do hope
that there is somebody covering and presiding over the Senate
right now. My staff assures me that was taking place.
Senator Crapo. You would have heard about it if there
wasn't.
Senator Coleman. The BlackBerry would have been going off.
Mr. Chairman, I also want to express my appreciation for
your willingness to step forward to have this hearing. The
Schiltz family traveled from Minnesota today. It is Mrs.
Schiltz's birthday, it is his son's birthday, and they are
here, and I am thrilled to have this opportunity to present
them and introduce them to you and the Committee.
This is the first opportunity I have had to be involved as
a U.S. Senator in recommending a candidate for a position as a
district judge. And I am just thrilled t have been able to work
with somebody of the extraordinary talent and character and
integrity of Patrick Schiltz. He brings broad legal experience
and remarkable qualifications to the position as U.S. District
Judge for the District of Minnesota.
Mr. Schiltz is a native of Duluth, Minnesota, and I am sure
this is a proud day for the people of that city and the College
of St. Scholastica, where he graduated. The Duluth view from
the high bluff above Lake Superior is one of the Nation's most
amazing and beautiful, incredible landmarks. I think the lake
is the world's largest body of fresh water, so as Mr. Schiltz
steps forward to take on this big job, he knows what big really
is.
After graduating from St. Scholastica, Mr. Schiltz attended
Harvard Law School, where he graduated magna cum laude and was
editor of the Harvard Law Review. He served as a law clerk to
U.S. Supreme Court Justice Antonin Scalia for 2 years. In fact,
Mr. Chairman, he first clerked for Judge Scalia on the D.C.
Circuit Court of Appeals, and then when Judge Scalia became
Justice Scalia, he was asked to clerk for him during his first
year as a United States Supreme Court Justice.
Mr. Schiltz then joined with the Faegre and Benson law
firm, Minnesota's second largest law firm. He has represented a
wide variety of clients, including the Evangelical Lutheran
Church in America, the Archdiocese of St. Paul in Minneapolis,
the Star Tribune, the National Football League, the Minnesota
Vikings, and the Minnesota Timberwolves. In Minnesota, there
aren't any more important clients than the Lutherans and the
Minnesota Vikings.
[Laughter.]
Senator Coleman. Mr. Chairman, I think we all know that the
very best way to learn a subject is to teach it. In 1995, Mr.
Schiltz joined the faculty of Notre Dame Law School, where he
became a nationally recognized scholar in the areas of legal
ethics and appellate procedure. As a reporter to the Advisory
Committee on the Federal Rules of Appellate Procedure, and as
the primary co-author of the leading treatise on those rules,
Mr. Schiltz is a preeminent expert on appellate procedure in
the United States.
In July 2000, he became the founding associate dean and
interim dean of the University of St. Thomas Law School in St.
Paul, Minnesota, where he played a significant role in many
aspects of creating the new law school.
On December 14, 2005, President Bush nominated Mr. Schiltz
to serve as United States District Judge for the District of
Minnesota. This nomination will replace retiring Judge Richard
Kyle who served as our senior judge with passion, dignity, and
integrity.
The authors of the Constitution vested the President with
the power to make nominations to the Federal judiciary. Federal
judges receive a lifetime appointment and, therefore, should be
individuals of high intellect with the appropriate judicial
temperament and finest character.
I take my constitutional responsibility to provide advice
and consent very seriously, as all members of this Committee
do. I am very supportive of Mr. Schiltz's nomination. He is
clearly a nominee with high intellect, high character, the
right judicial temperament and integrity. I encourage the
Committee to do a thorough job of examining him, to then
support his nomination, and then to forward the nomination to
the full Senate.
I want to take this opportunity to congratulate Mr. Schiltz
on his outstanding career and the willingness of him and his
family, his wife, Elizabeth Rose Schiltz, and their four
children, to step forward to provide public service in this
important post.
Thank you, Mr. Chairman.
Senator Coburn. Thank you, Senator Coleman.
We realize there are many demands on your time. If you
would care to stay, that would be fine. But, otherwise, we will
excuse you, and we would ask our two nominees to come forward
and be sworn in.
Raise your right hand. Do you swear that the testimony you
are about to give before this Committee is the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Smith. I do.
Mr. Schiltz. I do.
Senator Coburn. You may be seated.
The first nominee is Judge Norman Randy Smith, nominated to
be a circuit court judge on the United States Court of Appeals
for the Ninth Circuit. Judge Smith graduated from the Brigham
Young University in 1974 and received his J.D. from BYU's J.
Reuben Clark School of Law in 1977.
Following law school, Judge Smith joined the J.R. Simplot
Company as a corporate attorney, and in 1981, he began a long
association with the law firm of Merrill and Merrill, where his
practice focused on corporate and insurance defense litigation.
He later became a partner at the firm. He remained with Merrill
and Merrill until his election to the Idaho bench in 1996 as a
district court judge in Idaho's Sixth Judicial District. In
2004, he was made an administrative judge for that district.
While serving on the bench, Judge Smith has continued to
contribute to the community in Idaho and to the legal
profession in that State. He has taught as an adjunct professor
at Idaho State University since 1984. Last year, he was named
the Outstanding Teacher of the Year. Judge Smith has received a
unanimous ``well qualified'' rating from the American Bar
Association.
Second is Patrick Schiltz, nominated to be a district court
judge for the District of Minnesota. Mr. Schiltz received his
B.A. from the College of St. Scholastica in 1981 and his J.D.
from Harvard Law School. He has had a distinguished legal
career and will bring over 20 years of legal experience to the
Federal bench.
Following law school, he served as law clerk to Justice
Scalia during his last year on the United States Court of
Appeals for the D.C. Circuit and his first year on the Supreme
Court. Mr. Schlitz--Schiltz--I have a problem with that. That
beer is not available anymore.
[Laughter.]
Senator Coburn. He has worked as a private practitioner at
Faegre and Benson, LLP, from 1987 to 1995, serving as associate
until becoming partner in 1993. More recently, he has made his
mark in the legal profession as a scholar. He has served on the
faculty of Notre Dame Law School from 1995 to 2000 and left to
help found the University of St. Thomas School of Law. He
currently holds the school's St. Thomas More Chair in law. He
is recognized as an expert in the areas of legal ethics and
appellate procedure. He is co-author of the recent editions of
Wright and Miller's ``Federal Practice and Procedure,'' the
seminal treatise for litigators across the country.
In 1997, he was appointed by Chief Justice Rehnquist to
serve as the reporter to the Advisory Committee on the Federal
Rules of Appellate Procedure, a position he still holds. The
American Bar Association gave Mr. Schiltz a unanimous ``well
qualified'' rating.
Gentlemen, we welcome you to the Committee. We would be
pleased to hear any statement that you care to make, and I
would ask you to introduce your family and friends who are here
for your hearing. I would ask you to limit your statement to 5
minutes.
Judge Smith?
STATEMENT OF NORMAN RANDY SMITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT
Judge Smith. Thank you very much, Mr. Chairman. I
appreciate very much you holding this hearing for us today, and
I appreciate having the Committee have this hearing for us.
I am very appreciative to the President of the United
States for presenting my nomination to the Committee, and I am
very appreciative of those two wonderful Idaho Senators who
introduced me here today. I have become friends with both of
them, and I find them both to be strengths to Idaho and the
best representatives we can have. I appreciate very much their
effort on my regard.
I do have my cousin Dirk Smith here today. He has joined
us. I know that it is often told to me that I should not start
out with apologies, but I am going to have two.
The first that I apologize because, as I came in, somehow I
have a cold, and that cold has left me a little bit under the
weather, and I hope you--I apologize for that.
My second apology is for my wife, La Dean, who would be
here. She felt this was very appropriate to come, but she is a
teacher at the Hawthorne Junior High School in Pocatello, and
her parents are very ill in Layton. We had to take one to the
emergency room last weekend, and she thought, as their only
daughter, she ought to be with them. So she apologizes for not
being here and a part of this hearing.
Thank you very much. I have no other statement.
[The biographical information of Judge Smith follows:]
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Senator Coburn. Professor Schiltz?
STATEMENT OF PATRICK JOSEPH SCHILTZ, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MINNESOTA
Mr. Schiltz. Thank you, Mr. Chairman. I, too, want to
express my appreciation to the Judiciary Committee, and
particularly to you for allowing this hearing to go forward. I
did not have as far to come as Judge Smith did, but I had four
kids to get into their Sunday best and try to keep clean all
day.
[Laughter.]
Mr. Schiltz. Doing that twice would have been a lot. So
thank you personally for making sure this hearing went forward.
I also want to express my deep gratitude to the President
for nominating me, to Senator Coleman for recommending me, and
to Senator Dayton for helping to make sure this hearing would
go forward.
I don't have an opening statement, but I would like just
briefly to introduce my family: My wife, Elizabeth Schiltz.
This happens to be her birthday, as Senator Coleman mentioned.
This is the first time we have had a birth day at a
confirmation hearing. My oldest child, Anna, who is 15. My son
Joe, whose birthday is also today. He is 13 today. My son
Peter, who is sitting behind me to my left. And, finally, the
last of our children, as I underscore, Katie, who is 5.
Thank you again, Mr. Chairman.
[The biographical information of Mr. Schiltz follows:]
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Senator Coburn. Well, thank you for being here.
I have the wonderful opportunity to do all the questioning
and save the Senator from Idaho.
Judge Smith, how has your job as a State trial judge
prepared you to serve as a Federal appellate judge?
Judge Smith. Mr. Chairman, a State trial judge has the
opportunity, as you well know, to be involved in Federal issues
as well as State issues on a trial basis, in a trial situation,
and, therefore, I see Federal issues on a regular basis.
But I have done one other thing in Idaho to especially
assist me. It is often the case when the Federal judges will
refer a case from the Federal court to my court for mediation.
So I have mediated, I would suggest, 20 to 30 Federal cases as
a part of helping the Federal judges with their caseloads each
year as I have been a State judge.
So I think all of those are ways that I have been able to
prepare.
Senator Coburn. In Idaho, I understand that judges may
permit jurors to ask questions of witnesses during a trial. You
have been outspoken about your belief that judges should not
allow this practice. Could you explain your thoughts on this?
Judge Smith. Thank you. My worry about this is that it
seems to me that the system was based on two pretty fundamental
principles of law that are essential to us, providing to each
one of the litigants the special opportunity to come to our
courtroom, the first being a due process consideration, that of
having a burden of proof which is important that the burden of
proof be satisfied in order for someone to prevail. I believe
that allowing the jurors to then ask the questions allows the
parties to escape the burden of proof that they might have
otherwise necessary. I think that that is one thing that across
the Nation people are very worried about as it relates to
criminal proceedings. But I would suggest the same in civil
proceedings.
The second is a constitutional question, and that is the
right for a defendant to have a fair trial, to have the jury be
able to go through the whole of the trial and not make up their
mind and not become advocates, but to remain dispassionate. And
by asking the questions, they then become passionate because
they feel like their question is important, and that is the
reason that I have stood against this.
Senator Coburn. Thank you.
One other question that I have for you. One of the
questions we ask Supreme Court nominees, and myself and Senator
Kyl specifically, is the frame of reference with which you make
a decision based in law. Would you characterize what will be
your frame of reference in terms of making decisions on the
Ninth Circuit? And I am talking about the Constitution,
treaties, and statutes.
Judge Smith. Well, my frame of reference is to apply the
law as it is to each one of the given case situations that I
have. It is my understanding--and I truly believe it to be the
case--that when you review statutes, you look at the plain
meaning of the statutes. And if, in fact, you can find the
statute to be something that would be ambiguous, then you would
look at other situations, whether it would be legislative
history or those kind of things.
But in all of that kind of review and in all my review, I
am very cognizant of the fact that precedent is very important
and that we apply the constitutional precedent to the case law
and we follow the precedent as it is.
Senator Coburn. All right. Thank you.
Judge Smith. I hope that was the answer--or the question
you were asking.
Senator Coburn. It is, as well as what I normally would
followup with: Is there a basis for foreign law in the making
of decisions by a U.S. appellate judge?
Judge Smith. Mr. Chairman, in my mind, I don't find in
interpreting the law as it is and seeing exactly the plain
language of it and then applying the Constitution to it, I am
not aware of how the foreign law consideration would come into
that interpretation.
Senator Coburn. I think you got it right.
Professor Schiltz, you have had a great career. I
understand you worked with C-SPAN to try to open the Supreme
Court to television coverage. Would you tell us a little bit
about that?
Mr. Schiltz. Shortly after I clerked for Justice Scalia, C-
SPAN put together a panel of former Supreme Court clerks of the
then-living active Justices to try to brainstorm with us about
ways to open the Supreme Court proceedings to television. We
obviously did not lobby our particular Justices. It was to give
C-SPAN ideas for how they might identify and meet the concerns
of the Justices. And so I did that. It involved a couple of
meetings here in Washington among us. I believe that the
Supreme Court--it is something that, unfortunately, my former
boss and I don't see eye to eye on, but I believe that this is
one of the most important institutions in our country, and that
they can do their work without the American people being able
to watch it I personally think is a shame. And I hope that in
my lifetime--I expect in my lifetime we will see them
televised, as your proceedings are televised.
Senator Coburn. Do you have any opinion on the use of
foreign law in adjudicating cases before your court?
Mr. Schiltz. There are obviously some instances where I
think everybody would agree that reference to foreign law is
appropriate, for example, where there is a treaty that
specifically incorporates it. But I have to confess, I haven't
yet heard a compelling argument for what foreign law would have
to do, for example, with interpreting our own Constitution.
Senator Coburn. I would commend you to the statements of
Judge Alito and Chief Justice Roberts in response to that. I
think that they are fairly straightforward, and I would also
remind you that the oath you take, when you are sworn in, will
say what you will use. And it is the U.S. Constitution, the
statutes, and the treaties, and it doesn't say anything about
foreign law.
We will leave the record open for 1 week. The statements of
Senators Leahy and Feinstein will be entered into the record,
without objection. I appreciate you making the trip. I hope
your cold is better. My staff gave me one last week. I am
fighting it off. Congratulations on your nominations. We look
forward to the process moving through the Judiciary Committee.
Thank you very much.
Judge Smith. Thank you, Mr. Chairman.
Mr. Schiltz. Thank you.
Senator Coburn. The hearing is adjourned.
[Whereupon, at 4:27 p.m., the Committee was adjourned.]
[Submissions for the record follow.]
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NOMINATIONS OF MICHAEL A. CHAGARES, OF NEW JERSEY, NOMINEE TO BE
CIRCUIT JUDGE FOR THE THIRD CIRCUIT; GRAY HAMPTON MILLER, OF TEXAS,
NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS;
JEFFREY L. SEDGWICK, NOMINEE TO BE DIRECTOR, BUREAU OF JUSTICE
STATISTICS, DEPARTMENT OF JUSTICE; AND SHAREE M. FREEMAN, NOMINEE TO BE
DIRECTOR, COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE
----------
TUESDAY, MARCH 14, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3:01 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff
Sessions, presiding.
Present: Senators Sessions, Hatch, and Cornyn.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator Sessions. The Committee will come to order.
We are delighted to have each of you with us today. I would
offer for the record a statement of Senator Patrick Leahy, the
Ranking Member of the Judiciary Committee, without objection.
Today we have a confirmation hearing for two of the
President's judicial nominees and two of his executive nominees
to serve at the Department of Justice. I hope we can get each
of your nominations voted out of Committee shortly and through
the Senate as soon as possible.
We are privileged to have a distinguished panel of
legislators here, at least Senators at this point, to help us
introduce the nominees. Senator Lautenberg and Senator
Menendez, our distinguished colleagues from New Jersey, will
introduce Mr. Chagares.
Senator Lautenberg, would you like to start off? We thank
you for coming; you have introduced quite a number of nominees
over the years. It is great to have you back.
PRESENTATION OF MICHAEL A. CHAGARES, NOMINEE TO BE CIRCUIT
JUDGE FOR THE THIRD CIRCUIT, BY HON. FRANK LAUTENBERG, A U.S.
SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you, Mr. Chairman. It is always a
pleasure to be heard. It is particularly a pleasure when one
has the full confidence that the person being recommended is
someone we can all be proud of.
I did, however, say to Mr. Michael Chagares that I was
curious as to where he was able to rent this beautiful family
to make an appearance before--his wife and his four children.
And we are delighted to have them here. It is an honor to
present your Dad to this Committee.
He is recommended, as we all know, for a seat on the United
States Court of Appeals for the Third Circuit. Mr. Chagares is
currently in private practice, but he served in the U.S.
Attorney's Office in New Jersey for 14 years, despite a
relatively youthful appearance. How I envy that.
Through hard work and diligence, he rose to become the head
of the Civil Division where he supervised and managed all civil
cases on behalf of the United States Government, its agencies
and officials. He oversaw litigation, directed legal positions
to be taken in court, and approved settlements.
Before he became head of the Civil Division, Mr. Chagares
directed the Affirmative Civil Enforcement Unit of the U.S.
Attorney's Office for several years. And during his tenure in
the U.S. Attorney's Office, Mr. Chagares received a number of
awards and commendations for the good work that he did,
including two Director's Awards for superior performance as an
Assistant U.S. Attorney. Mr. Chagares is a graduate of Seton
Hall Law School in Newark, where he also taught as an adjunct
professor since 1991.
His familiarity with the Third Circuit goes back to the
late 1980's when he worked as a law clerk for Hon. Morton
Greenberg, a distinguished member of the Court of Appeals. The
Third Circuit is based in Philadelphia, and it considers
appeals from Federal district courts in Pennsylvania, New
Jersey, and Delaware. And I believe that the members of this
Committee would agree with me that this is one of the most
important Federal courts in the Nation, and I hope they will
agree with me that Mr. Chagares is well qualified.
The last time I introduced a New Jerseyan--and the Chairman
made reference--to this Committee, the Chairman asked if I was
endorsing the nominee. Today I can say without reservation that
I endorse Michael Chagares for the Third Circuit Court of
Appeals, and I thank the Senator from Alabama and the Senator
from Texas for your own distinguished service and for letting
me present this fine candidate to the Committee.
Senator Sessions. Thank you, Senator Lautenberg. We
appreciate those remarks.
Senator Menendez, we are delighted to have you in the
Senate--you are not so fresh anymore, I guess. There have been
some interesting days since you have been here, but we are
delighted that you are here, and we look forward to hearing
from you at this time.
PRESENTATION OF MICHAEL A. CHAGARES, NOMINEE TO BE CIRCUIT
JUDGE FOR THE THIRD CIRCUIT, BY HON. ROBERT MENENDEZ, A U.S.
SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you, Mr. Chairman. I got a little
nervous when you said, ``You are not so fresh anymore.''
[Laughter.]
Senator Sessions. Well, after the House, you know.
Senator Menendez. We are a little bit of a firebrand there.
We get tempered when we come to the Senate.
Mr. Chairman, thank you for the opportunity to join with my
distinguished and senior colleague from New Jersey, Senator
Lautenberg, who has had the privilege of introducing many
people from our home State to the Nation's judiciary system and
who has been called upon to serve the Nation by this
administration. Unlike Senator Lautenberg, who has been in the
Senate and introducing New Jerseyans for the past 21 years,
this is my first opportunity, so I appreciate the opportunity
to be here. I know that the confirmation of a judge to a
lifetime appointment is a vital responsibility given to this
body, and I know that I take that seriously, and I know that
this Committee takes it very seriously as well.
I appreciate the chance to join Senator Lautenberg in
introducing Michael Chagares, who has been nominated to replace
the current Secretary of Homeland Security, Michael Chertoff,
on the U.S. Court of Appeals for the Third Circuit. And we all
take pride in the honor that has been bestowed on a fellow New
Jerseyan.
Mr. Chagares, who is a New Jersey native, graduated from
Gettysburg College and Seton Hall Law School with honors. Upon
graduation, as Senator Lautenberg said, he clerked for Judge
Greenberg on the Third Circuit. And for over a decade and a
half, he has served the public with distinction in the United
States Attorney's Office for the District of New Jersey, as
well as working in private practice.
Senator Lautenberg mentioned that he is also an adjunct
professor at Seton Hall. I would add he is a popular professor
of both appellate advocacy and civil trial practice at Seton
Hall, and I think that goes as a testament when you can be able
to attract a student body that is in the process of pursuing a
career in the law to be able to both convey the essence of the
subject matter and do it in a way that excites a new generation
of lawyers.
As you know, Mr. Chairman, the American Bar Association has
rated Mr. Chagares as well qualified for the position that he
has been nominated. It is a view that I share as well.
He and his wife, Peggy, as you can see, are proud parents
of four children: Caroline, Meredith, Matthew, and Sarah. Sarah
has got her priorities right. She is snoozing right now. And I
did ask Mr. Chagares if he was aware of the salary that an
appellate court judge earns in light of college tuition costs.
And he assured me that he had given careful consideration to
this subject before accepting the honor of this nomination,
which is indeed a high honor.
And so we are pleased to see that people of his quality are
willing to serve the Nation in the administration of justice,
and we join Senator Lautenberg in commending him to the
Committee, and we thank you for the opportunity.
Senator Sessions. Thank you very much, Senator Menendez.
We have, I think most of you know, a vote that just
started, and the bad news, I will tell everyone that is here,
is that they have stacked seven votes to commence at 3:05. So
the first one has just started. It takes about 15 minutes or so
to get that vote completed. I do not think it is going to be
possible for Senators to come and go and keep this hearing
ongoing. So we will be able to stay, I would say, until about a
little past 3:15, and then we will have to vote and see how
fast we can get those seven votes over. But it will be an hour
or more, for sure. So I am very sorry that it will take a
little while to complete this hearing.
Senator Hutchison, it is great to have you here. We look
forward to your comments, and then we will hear from Senator
Cornyn also on your nominee from Texas.
PRESENTATION OF GRAY HAMPTON MILLER, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you very much, Mr. Chairman, for
holding this hearing. I know it will be difficult because of
the votes scheduled. I can think of few people who I can more
highly recommend for a Federal judgeship than Gray Miller.
Senator Cornyn and I interviewed him and other candidates, and
he just has so many qualities that we want in Federal judges.
He is a partner today in Fulbright and Jaworski in Houston,
and his practice has almost exclusively been in the Federal
court system. He headed the firm's Admiralty Department from
1996 to 2004 and was named in Euromoney's Guide to the World's
Leading Maritime Lawyers as one of the leading maritime lawyers
in the world. He was also included in ``Texas Super Lawyer,''
an article that appeared in Texas Monthly magazine, in which he
was recognized as one of the best lawyers in America.
But what really made me want to put him on the Federal
bench is he worked his way through law school while serving in
the Houston Police Department. He was a police officer from
1969 to 1978, and he went through undergraduate and law school
as a police officer working his way through. And when you talk
to him, he is a straight shooter. He knows exactly what right
is, and he does not veer from that. And I just think that he
will bring an experience of being a police officer to the
bench, which will be very valuable.
He has also served on the Board of the Texas Department of
Mental Health and Retardation. He is a lifetime member of the
One Hundred Club of Houston, which is a police support
organization for firefighters and police officers who are
killed or injured in the line of duty.
He has with him today his wife, Joanne, and their two
children, and his daughter-in-law and two granddaughters, and
we are very pleased that all of them are here. And, Mr.
Chairman, I do hope that the Committee will act favorably on
his nomination.
Thank you very much.
Senator Sessions. Thank you, Senator Hutchison. I am
confident that they will.
It is a pleasure to have Senator Cornyn here, former
Justice Cornyn on the Texas Supreme Court, and Attorney General
in Texas, and just a tremendously valuable member of this
Committee. John, we are glad you are here, and we would love to
hear your comments on the nominee.
PRESENTATION OF GRAY HAMPTON MILLER, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, BY HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
I want to tell both of our nominees that it is not
universally true that people who are nominated to the Federal
bench get uniformly high praise during judicial confirmation
proceedings, but I anticipate you both will. And it is my
pleasure to say a few nice things about Gray Miller, the
nominee for the U.S. District Court for the Southern District
of Texas.
Senator Hutchison has covered his professional
qualifications, and I think one of the things that attracted
both of us to him is, as she said, his service as a police
officer, someone who has experienced the law enforcement system
from the bottom up. And I don't think people will be pulling
many fast ones on Judge Miller.
He succeeds Judge Ewing Werlein, who is just such an
outstanding human being and a great judge, formerly of the law
firm of Vinson and Elkins, as Senator Hutchison knows. And he
is stepping down to take senior status, thus creating this
vacancy.
Mr. Miller has, in addition to his distinguished legal
career, done a lot in his community. He serves on the Board of
Trustees of the Mental Health/Mental Retardation Authority of
Harris County and the Texas Department of Mental Health and
Mental Retardation Board, the Volunteer Lawyers Program.
Senator Hutchison mentioned his specialty in admiralty law. I
noticed missing from his resume, he was a member of the Texas
Navy, but has just about every other kind of qualification you
could hope for.
And so let me just say, Mr. Chairman, I would join Senator
Hutchison in commending this outstanding nominee to our
colleagues and hope that the confidence that the President has
put in him and that Senator Hutchison and I have in him will be
shared by our colleagues and he will be swiftly confirmed.
Senator Sessions. Thank you, Senator Cornyn.
Perhaps we could administer the oath for our nominees. If
you would step forward and take your seats, we will do that. We
will get the right names up there. The competent staff is right
on the move.
If you would raise your right hands, and do you solemnly
swear that the testimony you are about to give before this
Committee is the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. Chagares. I do.
Mr. Miller. I do.
Mr. Sedgwick. I do.
Ms. Freeman. I do.
Senator Sessions. Thank you. Have a seat.
Again, I will just restate, I believe this vote has started
already. I don't think we will get very far starting now, and I
will not try to do that. Unfortunately, it is three--it is
probably going to be closer to 4:30 before we get back, unless
for some reason somebody vitiates some of the votes and we do
not actually have to do a roll call vote. Sometimes we can do a
voice vote or something of that kind. So we will take care of
that.
I think what I will do, since our nominees have been
introduced, Mr. Miller and Mr. Chagares, I would--let's see
here. I will introduce Mr. Sedgwick, he being nominated to be
the Director of the Bureau of Justice Statistics at the
Department of Justice. Over the years, during my 15 years in
the Department of Justice, I always read those reports. I
thought they were very valuable reports, and I think this is an
incredibly important position that you are undertaking.
You are a political scientist with extensive experience and
expertise relating to the American Government, the
Constitution, and criminal justice. You have been a professor
at the University of Massachusetts-Amherst since 1978. You
received your A.B. degree from Kenyon College, magna cum laude
(with honors) in political science in 1973, earning both your
MAPA, Master's in Public Administration, and Ph.D. from the
University of Virginia. In graduate school, nearly 60 percent
of your work related to politics, while 40 percent related to
economics. Your dissertation applied sociological and economic
methodologies to law enforcement planning--important issues
indeed. When you consider how many billions of dollars we spend
in law enforcement, we ought to know a little bit more about
what we are doing, I think.
After graduate school, Dr. Sedgwick spent nearly his entire
career in academia, although in the 1980's he served 1 year as
Deputy Director of the Justice Department's Bureau of Justice
Statistics, so you are familiar with that office.
Dr. Sedgwick's research and teaching interests have
included the study of democratization, democratic leadership,
and the American Presidency. He has continued to develop
expertise in the application of social science methods,
including economics, to political science and public policy
issues.
Our final nominee today is Sharee Freeman, nominated to be
the Director of the Community Relations Service at the
Department of Justice, a valuable institution that I have found
on more than one occasion to help bring a good result out of
tense circumstances. It has a role to play of importance.
Ms. Freeman received a B.A. from St. Lawrence University
and a J.D. from Georgetown University Law Center. She began her
legal career as a clerk to Judge Norma Holloway Johnson on the
U.S. District Court for the District of Columbia. Beginning in
1982, Ms. Freeman served as an assistant district attorney with
the Philadelphia District Attorney's Office--knowing that that
would make Senator Specter happy, I am sure.
Following her service in Philadelphia, she served as Acting
Assistant Solicitor and Attorney Advisor with the U.S.
Department of Interior before leaving for Capitol Hill in 1997.
Ms. Freeman's Capitol Hill service began as counsel to the
House Judiciary Committee and Congressman Henry Hyde. She also
served as counsel to Congressman Hyde on the House
International Relations Committee. Sometimes these issues are
like dealing with foreign powers when you achieve harmony among
different groups that come in contention.
In 2001, Ms. Freeman was appointed by President Bush and
unanimously confirmed by the Senate to be the Director of CRS
for a term of 4 years. Following the recent expiration of her
4-year term as Director, Ms. Freeman was named as Acting
Director of CRS, where she continues to serve.
So I am glad we got to introduce each of you. Let's take
our recess now. It will probably be 4:30 or somewhat after
before we finish. I will return as quickly as I can. As Senator
Cornyn indicated, count your blessings that it is not a
contentious hearing, that we do not have a lot of things to
say. Your records seem to have spoken for themselves. But there
will be some questions that we will want to ask in this
proceeding, and at the conclusion of it, then it will go to the
full Committee for markup and vote at a different date.
So if there is no other business at this time, we will
recess until approximately 4:30.
[Recess 3:21 p.m. to 3:46 p.m.]
Senator Hatch. [Presiding.] Mr. Chagares, you served for
many years as U.S. Attorney in the District of New Jersey. You
know, when people think about U.S. Attorneys, they think about
prosecutors, but you spent most of your career handling civil
cases, as I understand it. Is that correct?
STATEMENT OF MICHAEL A. CHAGARES, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT
Mr. Chagares. That is correct, Mr. Chairman.
Senator Hatch. Can you explain just what some of these
civil cases were about?
Mr. Chagares. I will be happy to, Mr. Chairman. I should
say, though--
Senator Hatch. You were chief of the Civil Division, right?
Mr. Chagares. I certainly was, but I did actually handle--I
actually did work on various criminal matters, and actually now
do criminal defense work.
Senator Hatch. I see.
Mr. Chagares. But I worked on all types of civil matters,
largely what the U.S. Attorney's Office and Department of
Justice calls affirmative cases, and that's where the United
States is seeking relief--fraud cases, telemarketing fraud
cases, endangered species cases, all different types of cases
where the United States is the plaintiff.
Senator Hatch. I happen to think that is real good
experience for you for this court, and I happen to think that
is a great thing that you are doing. Of course, I belong to the
Third Circuit Court of Appeals, and we appreciate that circuit.
[The biographical information of Mr. Chagares follows:]
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Senator Hatch. Mr. Miller, you have had a distinguished
career as a private practitioner. How do you think those
experiences have helped prepare you to become a Federal judge?
STATEMENT OF GRAY HAMPTON MILLER, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF TEXAS
Mr. Miller. Well, I have been in Federal court a lot, Mr.
Chairman, and I have seen good judges and I have seen bad
judges. And I have taken a lot of experience and the lessons I
have learned from the good judges I hope to apply if I am
fortunate enough to be confirmed to this position.
Senator Hatch. That is great. I have heard good things
about you, about both of you, and we are really happy to
support both of you.
Mr. Miller. Thank you, sir.
Mr. Chagares. Thank you, Mr. Chairman.
[The biographical information of Mr. Miller follows:]
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Senator Hatch. Dr. Sedgwick, your academic work covers a
wide range of subjects, everything from politics to history to
social science. Can you just tell the Committee a little bit
about your scholarship and how that has prepared you to serve
as Director of the Bureau of Justice Statistics?
STATEMENT OF JEFFREY L. SEDGWICK, NOMINEE TO BE DIRECTOR,
BUREAU OF JUSTICE STATISTICS, DEPARTMENT OF JUSTICE
Mr. Sedgwick. Yes, Senator, I can. My dissertation work,
which led to my book, was on the application of economic and
sociological approaches to the study of crime as they related
to the question of law enforcement planning. I have also
written fairly widely on the death penalty and also on
deterrence and retribution, different theories of punishment
and their purposes. So I have taught and done research on
criminal justice issues for a good part of my 28-year career as
a professor.
Senator Hatch. That is great.
[The biographical information of Mr. Sedgwick follows:]
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Senator Hatch. Ms. Freeman, as you have traveled the
country during your first term as Director of Community
Relations Service, the CRS, you probably encountered a lot of
people who are not familiar with CRS, its history or its
mission. Could you explain to the Committee the mission and
purpose of the Community Relations Service?
STATEMENT OF SHAREE M. FREEMAN, NOMINEE TO BE DIRECTOR,
COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE
Ms. Freeman. Very simply put, sir, the Community Relations
Service is responsible for resolving conflicts based on race,
color, and national origin throughout the country. We are
Federal mediators. My staff mediate disputes based on race,
color, and national origin.
Senator Hatch. That is great.
[The biographical information of Ms. Freeman follows:]
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Senator Hatch. Well, let me tell you, I have read
extensively about each of you. I have great confidence in each
of you for the respective positions to which you have been
nominated. And I am just happy that we have had this hearing
finally for you and that we can push you forward and hopefully
get this done.
I am going to keep the record open for 1 week for written
questions, and we will close that record on March 21st at 5
p.m.
Now, there are two letters that we have to enter into the
record: Congressman David Dreier has submitted a letter, and
Wade Henderson of the Leadership Conference on Civil Rights. We
are very familiar with both of them. They are both good people,
and, frankly, we are very pleased to support your nominations.
I did not want you to have to sit around here until 4:30 or 5
o'clock, so I scooted over from the Senate. We are having a
series of 10-minute votes right now, and I got over here so
that we could end this hearing and push your nominations
forward. And we will do everything we can to get them through,
OK?
Mr. Chagares. Thank you, Mr. Chairman.
Mr. Miller. Thank you, Mr. Chairman.
Mr. Sedgwick. Thank you, Mr. Chairman.
Ms. Freeman. Thank you, Mr. Chairman.
Senator Hatch. Well, thank you so much.
With that, we will recess this Committee until further
notice. We will enjoy supporting you.
[Whereupon, at 3:50 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF BRIAN M. COGAN, OF NEW YORK, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK; MICHAEL RYAN BARRETT, OF
OHIO, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO;
AND
THOMAS M. GOLDEN, OF PENNSYLVANIA, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
----------
WEDNESDAY, MARCH 29, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, DeWine, and Schumer.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Judiciary Committee will now proceed. We have on the agenda the
nominations of three candidates for United States District
Court: Mr. Brian Cogan for the Eastern District of New York;
Mr. Michael Barrett for the Southern District of Ohio; and Mr.
Thomas Golden for the Eastern District of Pennsylvania.
I am going to yield the gavel in a moment or two to my
distinguished colleague, Senator DeWine. We are moving to the
floor with the immigration bill, and that requires a great deal
of time.
Good morning, Senator Voinovich.
But before excusing myself, I want to make a few comments
about Thomas Golden, who is the candidate for the Eastern
District of Pennsylvania.
Senator Santorum. and I have a judicial nominating panel,
bipartisan and representative, and Mr. Golden was selected by
the panel as the nominee for the court, and Senator Santorum
and I forwarded our recommendation to the President, and the
President has submitted his nomination.
Mr. Golden comes from Berks County, Reading, Pennsylvania.
Senator Santorum and I make it a point, as I know the Ohio
Senators do, and all Senators, to have balance and distribution
to the extent we can. And Mr. Golden will be sitting in Reading
and trying to bring access to the Federal court and convenience
of the litigants and the lawyers in the neighborhood.
Tom Golden is a graduate of the Dickinson Law School in
1972. After graduating from Penn State in 1969, he has been
with the law firms of Stevens and Lee and more recently with
Fry, Hibschman and Golden. He is a general practitioner, has a
very distinguished record at the bar, has served as president
of the Pennsylvania Bar Association, and he comes to this
nomination with an ABA rating of unanimously well qualified. So
I welcome you here this morning, Mr. Golden.
I had a chance to talk with him briefly earlier today, and
I do not think we are jinxing his nomination to say that we are
planning his swearing-in ceremony. I think that is reasonably
safe.
At this time I want to yield the gavel to my distinguished
colleague, Senator DeWine, with my thanks for chairing these
hearings. Michael?
Senator DeWine. [Presiding.] Mr. Chairman, thank you very
much.
Let me at this point turn to Senator Voinovich, who has an
introduction.
PRESENTATION OF MICHAEL RYAN BARRETT, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK, BY HON. GEORGE
VOINOVICH, A U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. Thank you, Senator DeWine.
I am pleased today to be speaking on behalf of Michael
Barrett, whom the President has nominated to serve on the U.S.
District Court for the Southern District of Ohio. I welcome the
Committee's review of Mr. Barrett, and I believe that you will
come to the same conclusion that I have, that Mr. Barrett is
well qualified to serve as a Federal judge and should be
confirmed by the Senate. He has a distinguished and impressive
record as a prosecutor, defense attorney, community leader, and
he has deep roots in southwest Ohio. I have known him for 25
years.
Mr. Barrett is a graduate of the University of Cincinnati
where he obtained his bachelor of arts in 1974 and his law
degree in 1977. After graduating from law school, Mr. Barrett
served as an administrative hearing officer for the State of
Ohio where he helped resolve employment disputes arising out of
changes to the Ohio employee classification system.
He then joined the Hamilton County prosecutor's office as
an assistant prosecuting attorney. Upon joining the
prosecutor's office, Mr. Barrett was assigned to the felony
trial division where he participated in investigations, grand
jury proceedings, and felony trials. In 1983, Mr. Barrett was
promoted to be the chief assistant of that division.
In 1984, Mr. Barrett joined Graydon, Head and Ritchey,
where he worked on both criminal and civil matters, initially
as an associate before being promoted to a partner. In 1995, he
joined his current firm Barrett and Weber where he has
continued to practice in the same areas of law.
Mr. Barrett's clients in the criminal defense practice area
covered the spectrum of the criminal code with a concentration
in the area of white-collar crime. His civil litigation clients
include a number of business clients, and his recent experience
includes a number of security law cases in which he has
represented individual plaintiffs as well as the Attorney
General's Office for the State of Ohio. His practice has earned
him several listings in Best Lawyers in America and Ohio's
Super Lawyers. In addition, Mr. Barrett has received the
Outstanding Service Award as a mediator for the U.S. District
Court for the Southern District of Ohio.
In sum, Mr. Barrett has the broad courtroom experience that
will serve him well as a Federal judge. He is eminently
qualified to serve on this bench. He has also served on the
Supreme Court of Ohio's Board of Commissioners on Grievances
and Discipline, which evidences the high esteem in which
members of the Ohio Bar hold him and is testimony to his
excellent character. I think it is important to get a sense of
any judicial nominee's character because it will have a great
influence over how the judge will manage his courtroom.
As a result of Mr. Barrett's fine academic and professional
achievements, I am not surprise that the American Bar
Association has found Mr. Barrett qualified to be on the
Federal bench. His legal credentials are not the only reasons I
support his nomination. In an age where I believe too many
people do not take the time to become active members of their
communities, Mr. Barrett has been a community leader. Some of
Mr. Barrett's community activities include his current service
on the Board of Trustees of Talbert House, a Cincinnati area
social service organization; his current service as Director of
Boys Hope/Girls Hope of Cincinnati, an organization to provide
an array of services for at-risk children; and his past service
as trustee of the Children's Services of Hamilton County.
When I was Governor, I was pleased to appoint Mr. Barrett
to the Board of Trustees of the University of Cincinnati. He
served on that Board of Trustees for 9 years, including a
period as Chairman of the Board of Trustees. Involvement in
one's community is important. We need judges who not only have
exceptional legal skills, but also who recognize how the law
impacts on individuals and communities. I believe Mr. Barrett
has this understanding because he is out in his community every
day.
In reviewing his academic professional record, it is clear
he certainly is well qualified to serve as a Federal district
court judge on the U.S. District Court for the Southern
District of Ohio, and I look forward to this Committee's review
of his nomination.
I thank you for the opportunity to introduce him to you
today, and, of course, Mr. Chairman, you know Mr. Barrett's
qualifications as well or better than I do.
Senator DeWine. Senator Voinovich, thank you very much, and
we know that you have a very busy schedule today, so you will
be excused at any time that you need to leave. We appreciated
very much your great statement.
Senator Santorum, we welcome you.
PRESENTATION OF THOMAS M. GOLDEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. It is great to
be here, and it is a real pleasure for me to come before the
Committee to introduce Tom Golden. Tom is the nominee of the
President for the Eastern District Court in Pennsylvania. He is
from Berks County, which is a county that has long sought a
nominee for a courtroom in Reading that has largely been
unoccupied for quite some time. It has been quite an
inconvenience for lawyers in the western part of the Eastern
District, and this nominee is very important not only because
of the judicial emergency that exists because of this vacancy.
The Administrative Office of the U.S. Courts has declared this
district to be a judicial emergency, and so we need Tom Golden
on the court to fill that need, but also for the need of
lawyers practicing in--who have to drive all the way from the
western part of the Eastern District into Philadelphia
basically to receive justice. And this is an important nominee
for that reason.
Tom has been rated unanimously well qualified by the Bar
Association. I am not surprised at that, in part because of
Tom's active participation in the Bar Association over the
years. He was President of the Pennsylvania Bar Association in
2003 and 2004, serves as a member of the House of Delegates to
the ABA and has since 2002, has been head of the local bar, the
whole nine yards. He has been very, very active in the legal
field, reaching the highest levels as a result of his
outstanding legal abilities as well as his tremendous
dedication to the bar.
He has been active--like all the nominees that we are very
proud to put forward, he is also active beyond the legal field,
in the area of his church and in the community, which I
particularly look at as something that is important. He is not
someone who has just got great legal scholarship, but also
understands and has a footing in the community and
understanding the importance of community service and being an
active citizen in your community.
He has one of the most outstanding education backgrounds.
He went to Penn State University and Dickinson School of Law. I
happened to go to Penn State University and Dickinson School of
Law, so that is why I say it is probably one of the most
outstanding backgrounds that I can imagine. So he comes from
good stock. In his legal career, he is the managing partner at
a firm in Reading. His practice concentrates in the area of
business, civil litigation, real estate, and estate planning.
He is truly, as the Bar Association, incredibly well qualified
for this position, and it is an honor to come here today to
offer his name in nomination before the Committee, and I would
urge your speedy confirmation in moving this nominee through
the process.
Thank you, Mr. Chairman.
Senator DeWine. Senator Santorum, thank you very much. We
appreciate your good statement.
Senator Schumer?
PRESENTATIONO F BRIAN M. COGAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF NEW YORK, BY HON. CHARLES E.
SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Mr. Chairman, thank you. I am happy to
introduce Mr. Brian Cogan of New York as we consider his
nomination to the Federal court for the Eastern District of New
York, which sits in Brooklyn, a borough which I have some
familiarity with, being the first Senator from Brooklyn in 140
years. Alas, Mr. Cogan was born in Chicago, but he has quickly
moved to New York. After going to the University of Illinois,
he migrated to our great State and attended Cornell University
Law School, where he was editor for the law review. He went on
to clerk for a Federal judge in the Southern District of
Florida--he had sort of wanderlust in his younger days--before
having the good sense to return to New York where he has been,
I am proud to say, ever since.
Mr. Cogan has had a long and distinguished career. He
joined the firm of Stroock, Stroock and Lavan in 1980, where he
made partner in 1988, and has worked on many high-profile
domestic and international cases. In 2004, he was appointed the
general counsel of Stroock.
Joining Mr. Cogan today is his wife, Robin Keller, also a
partner at Stroock. My brother is a partner at another New York
law firm, and when he was dating seriously one of the other
partners, they passed what they called the Bob and Pam rule: no
marriages in the partnership. And they did not get married. He
is happily married now, I might add. Just for your awareness,
Mr. Chairman.
[Laughter.]
Senator Schumer. So I guess Stroock has the good sense not
to have the Bob and Pam rule in its rules. The two obviously
make a fabulous team, and they have co-authored several
publications together on bankruptcy law.
Despite his busy practice, Mr. Cogan has found considerable
time for public service. He serves as an attorney for enlisted
soldiers throughout the New York Guard JAG Corps, for which he
received an award from his firm. And through the program he
provides soldiers with legal assistance as they prepared for
deployment.
Mr. Cogan has helped countless soldiers by devoting up to
30 hours per month to the program since 2002, and knowing how
busy a corporate partner is in a New York corporate law firm,
that is a huge undertaking for which we thank you. I know I
speak for all of my colleagues when I commend Mr. Cogan for his
public service.
Now I want to take a moment, Mr. Chairman, to recognize
that we in New York have a system in place for nominating
Federal judges that works. With all of the sturm und drang
about the nomination of judges, you would think the
disagreements between the White House and a place like New York
with two both shy Democratic Senators would lead to all kinds
of problems. But, no, just the opposite. We work together in an
effective and bipartisan way to ensure that only the most
qualified, moderate, and diverse candidates are considered. And
the nomination of Mr. Cogan and what I expect to be a smooth
and speedy confirmation is testament to that process in New
York.
So I would like to thank you, Mr. Chairman, for holding
this hearing. I want to congratulate Mr. Cogan. I am very glad
that his wife will remain a partner in the firm so they will be
able to live a decent lifestyle, and I hope the hearing moves
forward expeditiously.
Senator DeWine. Well, I thank my colleague from New York
for that very fine introduction.
I would invite our three nominees to come up now, and I
will, as we are doing that, introduce Michael Barrett as well.
Senator Voinovich has already done this, but I am going to add
my comments at this point.
It is my pleasure and honor to introduce my fellow Ohioan
Michael Barrett to the members of this Committee today. Michael
Barrett's legal career spans almost 30 years. It has been
certainly very distinguished not only by his accomplishments as
a litigator, but also by his truly extraordinary record of
public and civic leadership.
Gentlemen, please have a seat. This is going to take more
than 30 seconds.
A brief summary of his background offers ample evidence of
his qualifications. He is a graduate of the University of
Cincinnati where he earned both his bachelor of arts degree and
his law degree. Directly out of law school, Mr. Barrett served
the State of Ohio as an administrative hearing officer for over
a year and then moved to the Hamilton County prosecutor's
office, where he served first as an assistant prosecutor and
then as chief assistant prosecuting attorney of the felony
trial division.
During this time, Mr. Barrett also served as chief of the
special County Arson Task Force, supervising the investigation
and prosecution of arson cases.
After 6 years in the Hamilton County prosecutor's office,
Mr. Barrett moved into private practice with the firm of
Graydon, Head and Ritchey, where he remained for 10 years as
associate and then as a partner. He was listed several times in
Best Lawyers in America for his domestic relations practice. He
then joined the Cincinnati law firm of Barrett and Weber, where
he continues to practice today in the area of general
litigation.
Mr. Barrett has an extremely diverse career as a litigator.
He has argued in both State and Federal courts, and his court
appearances are almost evenly split between civil and criminal
cases. In addition to his background as a prosecutor, he has
developed a very successful defense practice. He is a member of
the National Association of Criminal Defense Attorneys, and it
is particularly noteworthy that he has argued capital murder
cases as both a prosecutor and as a defense attorney.
Mr. Barrett's expertise, however, extends well beyond
litigation. He was appointed as a special master trustee in a
class action lawsuit in which he analyzed over 900 claims
responses in the allocation of settlement funds under that
suit. He also was chosen to be the receiver in a securities
case, and in that role he worked with counsel to conduct a
collection and liquidation of investors' assets, which is an
important and often very complicated financial and legal task.
His experience with alternative dispute resolution
techniques is also quite impressive. He was a board member of
the Cincinnati Center for the Resolution of Disputes and was
awarded the Outstanding Service Award as a mediator for the
Southern District of Ohio.
This unusually diverse legal background gives Mr. Barrett a
broad view of the legal system and a wide understanding that
will help him as a successful Federal judge.
Mr. Barrett is also an extremely accomplished community
leader who has served the public in a variety of roles, only a
few of which I will mention here today. He served on the
Supreme Court of Ohio Board of Commissioners on Grievances and
Discipline for 15 years. That is a long time, Mr. Barrett. He
was on the Board of Trustees for the University of Cincinnati,
the Board of Trustees of the Health Alliance of Greater
Cincinnati. He was also co-chair of the Police and Justice
Committee of Community Action Now, a project formed by and for
Cincinnati community leaders and charged with the task of
achieving greater equity, opportunity, and inclusion for all
Cincinnati residents.
He has also been involved with a wide range of charitable
and social service organizations, including Children's Services
of Hamilton County, Talbert House, and Boys and Girls Hope of
Cincinnati.
Michael Barrett is clearly an accomplished attorney and
experienced community leader. Both are important qualifications
for this position. Given his background and experience, it is
not surprising that a substantial majority of the ABA panel
that reviewed his qualifications found him to be well
qualified, which, of course, is the highest possible rating.
The remaining members of the panel gave him the next highest
rating of qualified. This very high rating merely confirms his
excellent credentials for the position.
Even more important, however, is simply that Mike Barrett
is a good person, a good man. I have spoken with attorneys and
judges who have worked with him, both with him and against him,
and they all describe him as a calm, even-tempered man who is
always willing to listen. They confirm what I think of Mike
Barrett. He is a bright, affable, intellectually open-minded
person with a strong sense of the law, someone who will make an
excellent Federal judge.
Michael Barrett is an outstanding nominee, and I strongly
believe that he will serve as a great Federal District Court
Judge for the Southern District of Ohio.
Let me ask the members of the panel now to stand and I will
swear you in. Please raise your right hand. Do you swear that
the testimony you are about to give before this Committee will
be the truth, the whole truth, and nothing but the truth, so
help you God?
Mr. Golden. I do.
Mr. Barrett. I do.
Mr. Cogan. I do.
Senator DeWine. You may be seated.
We welcome all of you here, and we will give each one of
you the opportunity to make any kind of opening statement and
also the opportunity to introduce anyone who is with you today,
including certainly any members of your family. Mr. Golden?
STATEMENT OF THOMAS M. GOLDEN, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Golden. Good morning, Mr. Chairman.
Senator DeWine. Good morning.
Mr. Golden. I can't help but start by thanking the
President for nominating me. I am deeply gratified by the
remarks made by Senator Specter and Senator Santorum. Without
their help, I would not be here. Without their kindness and
support, I would not be here.
It is a pleasure for me to introduce to you my family who
is with me. Seated behind me in the first row is my daughter,
Kristin Mancuso; my two grandsons, Will Mancuso and Alex
Mancuso. Behind those beautiful people are my son Matthew and
his lovely wife, Olivia, and the person who has made it
possible for me to be here, my wife, Penny.
Senator DeWine. Welcome.
Mr. Golden. It is a pleasure to be here, Senator, and thank
you, and I conclude my remarks.
[The biographical information of Mr. Golden follows.]
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Senator DeWine. Mr. Golden, thank you very much.
Mr. Barrett, good morning.
STATEMENT OF MICHAEL RYAN BARRETT, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF OHIO
Mr. Barrett. Mr. Chairman, good morning. I would just like
to express my--
Senator DeWine. Hit your mike there, Mr. Barrett.
Mr. Barrett. Is it on now? Thank you. I am sorry.
Mr. Chairman, I would just like to express my deepest
gratitude to you and Senator Voinovich for the remarks you made
and also for just providing the opportunity to even be here
today. I greatly appreciate it from the bottom of my heart, and
I would like to thank the President for the nomination.
Thank you.
[The biographical information Mr. Barrett follows.]
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Senator DeWine. Mr. Cogan?
STATEMENT OF BRIAN M. COGAN, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF NEW YORK
Mr. Cogan. Senator DeWine, thank you for chairing this
hearing this morning. I would echo my colleagues and express my
appreciation to the President for the confidence he has shown
in me in putting my nomination forward. My wife is here with me
today. Senator Schumer I think has adequately introduced her.
And I also wanted to thank the people from the Department
of Justice and the FBI for the professionalism and efficiency
they showed throughout the background investigation that led to
us being here today.
Thank you.
[The biographical information of Mr. Cogan follows.]
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Senator DeWine. Mr. Cogan, I notice that you have dedicated
a significant amount of your time in the past few years to
serving enlisted men and women prior to their deployments to
Afghanistan and Iraq. Do you want to tell us about your service
among these folks going into the armed service?
Mr. Cogan. Yes, Senator. The New York Guard is a State of
New York agency, a sister service to the New York National
Guard. My unit is composed of volunteers, and although our
military is entirely volunteers, my unit are unpaid volunteers,
lawyers who go on to military bases on the eve of deployment
and counsel soldiers and their families about their legal
rights and needs. We draw wills and have them sign there. We
draft living wills, do not resuscitate orders, and generally
answer any questions they have so that they have peace of mind
before they are deployed overseas.
Senator DeWine. I am sure that must be very rewarding work.
Mr. Cogan, you have spent a good part of your practice, your
career, representing large corporations. Whoever comes to the
bench brings a certain background, part of your background at
least. How will you make that transition to, obviously, a
different background of being a Federal judge?
Mr. Cogan. Senator, thanks for that question. It is a good
question. My practice has not at all been confined to major
corporations. I have represented a number of individuals, many
individuals of modest means, and also small businesses. I do
quite a bit of that. I would say at the current time my
practice is probably 50 percent small businesses. So I have
seen quite a lot of diversity in the kinds of people I have
represented, and through the volunteer work I have done, you
know, I consider myself the lawyer for those soldiers. So I
have seen all kinds of people in connection with my practice.
Senator DeWine. You have had experience in the area of
bankruptcy law, I see, and commercial litigation.
Mr. Cogan. Yes, sir.
Senator DeWine. Tell us a little bit about that, how that
might have prepared you for this job.
Mr. Cogan. It has given me a fair amount of trial work,
Senator. As you know, everything in bankruptcy court, even a
motion for an extension of time, can turn into a trial. And it
has given me a range of small cases and very large cases, cases
that have gone to the Second Circuit and cases that get no
further than bankruptcy court.
It has also given me a lot of international litigation
exposure. I have done a lot of work with lawyers in foreign
countries, and I know how their legal systems work.
Senator DeWine. Mr. Barrett, you have handled some death
penalty cases on both sides; is that correct?
Mr. Barrett. Yes, Mr. Chairman.
Senator DeWine. I don't know if that is totally unique, but
some people go through their lifetime career and never handle a
death penalty case on either side, I guess. How has that
affected your view of an attorney's role or a judge's role
within our legal system? And what, if anything, did you learn
from these cases?
Mr. Barrett. I think the most important thing that I have
learned is the absolute need to be careful and make sure that
all the I's are dotted and the T's are crossed and that all of
the procedural requirements are met, and when there is so much
on the line on either side of those cases, you have total
concentration and you just can't spend enough time on them. And
it has taught me to be very careful.
Senator DeWine. The State v. Randall Ayers case, tell us a
little bit about that case.
Mr. Barrett. Your Honor, that was a case--due to an
extraordinary set of circumstances, an identification was made
of a defendant which later proved out to be incorrect after--
Senator DeWine. You were the prosecutor or the defense
lawyer.
Mr. Barrett. I was the prosecutor, assistant prosecutor on
that. And he was convicted, and several years later, a serial
sexual assault defendant in another jurisdiction confessed to
the crime. And I can't highlight what that meant to me in terms
of trying to be careful, trying to understand cases, reliance
on scientific evidence, where possible and where appropriate.
Senator DeWine. You also have handled domestic relations
cases. This is not the type case that you are probably going to
be dealing with on the Federal bench, but what have you taken
from the handling of this type case that might be of some
assistance to you on the Federal bench?
Mr. Barrett. One of the main things I think that I learned
from my domestic relations practice is the benefit of alternate
dispute resolution, trying to resolve cases through mediation
or special settlement counsel. As the court is probably aware,
a number of those cases are contentious and emotional, and it
helps take the steam out of those if you have a mediator that
can sit down with the parties and actually try to arrive at a
resolution that benefits everybody, especially the children.
Senator DeWine. Tell me a little bit about one of your
first jobs right out of law school. You were an administrative
hearing officer. What was that like?
Mr. Barrett. That was very interesting, Your Honor. The
State of Ohio had changed their entire job description
classification code, and all of the State employees had an
automatic right to appeal their new designations. And myself
and a group of 30 other attorneys traveled around the State,
and we conducted employee hearings at all of the State
facilities from penal institutions to ODOT installations, and
we determined the appropriateness of classifications and pay
grades.
Senator DeWine. That was right out of law school, was it?
Mr. Barrett. Yes, it was a situation where there was a
special House bill that was passed because they needed to get a
number of attorneys on board very quickly, and the
qualification was you had to be a law school graduate but did
not have to actually be licensed in the State of Ohio yet. And
as a result of that, I would say out of our group of attorneys
that handled these cases, probably 95 percent of us were
graduates waiting for the bar results and not licensed
attorneys. But that was a real eye-opener to start with.
Senator DeWine. Mr. Golden, for the last several years, you
have served as the director of a group called Lawyers Concerned
for Lawyers, Inc. What is that all about?
Mr. Golden. Senator, that is the group formulated by the
Pennsylvania Supreme Court to assist lawyers, impaired lawyers
who have addiction problems, mental health problems. It sets up
a confidential hotline, and trained counselors are then used to
refer those folks who have problems to necessary treatment
facilities and to programs to help in their rehabilitation.
Senator DeWine. And how long have you served in that
position?
Mr. Golden. I believe, Senator, 5 years or 6 years.
Senator DeWine. Your practice has been a more general
practice; is that right?
Mr. Golden. Yes, Senator. I started out as an insurance
company defense lawyer doing civil litigation, and I did that
for approximately 15 years, and it blossomed into commercial
litigation, all types of litigation, and then my practice began
to change and I came to represent a cross-section of a small
town. Reading is a town of about 80,000, in a county of about
400,000. And I represent businesses, banks, a college, and a
lot of individuals. And through that I still maintained the
litigation practice, but it diminished.
Senator DeWine. Mr. Golden, you have been pretty active in
the Bar Association, the county level, State level, too; is
that right?
Mr. Golden. Yes, sir.
Senator DeWine. Do you want to tell us a little bit about
that?
Mr. Golden. Throughout my career as a lawyer, I have always
been involved in bar activities. Initially, it was a wonderful
way to get to know people. More importantly, it was a way to
learn about the law from the practical side.
For whatever reason, I ended up being selected for
different positions in my local bar, and then later on assumed
a role as a Governor on the Pennsylvania Bar Association Board.
And from that I was asked to run for president of the bar, and
I was president of the Pennsylvania Bar, which was a wonderful
experience. I probably got more out of that than I ever gave
back in it, and it allowed me to get to know so many people, so
many great lawyers, be involved in all aspects of the legal
profession, and realize that what we do as lawyers has a broad
effect and a great effect on our society.
Senator DeWine. My understanding is that, if confirmed, you
would keep your--the chambers would be in Reading; is that
correct?
Mr. Golden. Yes, Senator.
Senator DeWine. Is that your choice? Do you get to make
that decision?
Mr. Golden. Yes, Senator. Although we love the great city
of Philadelphia, with all deference to Senator Specter, I am
very pleased to remain in my community. This is an outlying--as
Senator Santorum described, Berks County is at the westernmost
edge of the Eastern District, and it is a huge inconvenience
for lawyers and the party litigants and the witnesses to travel
into Philadelphia. It is a wonderful opportunity for the local
population to understand the Federal court system, to be
exposed to the Federal court system, and it will be a real
benefit for our community. I am more than happy to stay there,
Senator.
Senator DeWine. I was just curious how you handle that in
Pennsylvania. Mr. Barrett will not get to make that decision in
Ohio. So you get to make that decision in Pennsylvania.
Mr. Golden. Senator--
Senator DeWine. I am just giving you a hard time, Mr.
Golden. Don't worry about that.
[Laughter.]
Mr. Golden. And I am enjoying it. No, I like Reading, so I
am happy to be there.
Senator DeWine. We want you to be where you want to be, I
am sure.
Let me ask you this: Mr. Cogan, why do you want to be a
Federal judge?
Mr. Cogan. Senator, I think that any litigator, or at least
most litigators who want to do and have the financial ability
to do public service, for any of us it is really the ideal job.
There is no public service job that allows you to interact with
the public on that level one on one to let them know that their
opportunity to be part of the judicial system, to have their
cases heard, to have someone listen to their grievances, will
be carried out. That to me is an indispensable part that we
bring when we become Federal judges, if we are fortunate enough
to be confirmed, and it is a contribution that I don't think
anything else is like.
Senator DeWine. Mr. Barrett?
Mr. Barrett. Thank you, Mr. Chairman. I have been engaged
in trial practice for almost 30 years now in just about every
kind of court, and I have dealt with a number of different
types of litigants, their attorneys, and judges. And I have
reached an age where I think that I have developed enough
experience and enough ideas that, if I were fortunate enough to
get this position, I could actually have a positive impact on
issues such as docket control and case management, and I think
I can make a positive contribution to the community, if I were
lucky enough to be selected.
Senator DeWine. Mr. Golden?
Mr. Golden. Senator, as my colleagues have just said, being
a Federal judge is a wonderful opportunity to give back. When
you reach a certain point in your career and you have done an
awful lot of things, I think every lawyer comes to the
recognition that public service is part of what we do.
To become a Federal judge is a wonderful opportunity for me
to help my community, to give back, and to perform public
service at a time in my life when I continue to--where I can
continue to make a valuable contribution to my society.
Senator DeWine. Mr. Golden, let me ask you the question we
ask all the nominees. The Supreme Court and Federal circuit
court precedents are, of course, binding on district courts. I
must ask you: Are you committed and willing to follow the
precedents of the higher courts faithfully and give them full
force and effect even if you might personally disagree with
those precedents?
Mr. Golden. Absolutely, Senator.
Senator DeWine. Mr. Barrett, same question.
Mr. Barrett. Absolutely, Mr. Chairman.
Senator DeWine. Mr. Cogan, same question.
Mr. Cogan. Same answer.
Senator DeWine. I have a statement from Senator Leahy which
he would like to be made a part of the record. Without
objection, it will be made a part of the record.
Mr. Golden, one of the objections that lawyers sometimes
have with Federal judges as well as with State judges is that
the judge doesn't let them ``try their case.'' Occasionally,
when I practiced law, many, many, many, many years ago, I used
to be a prosecutor. I had some great judges, but once in a
while I might have that objection. I might have been wrong
about it, but do you want to react to that? What is your
philosophy about how much leeway you give lawyers?
Mr. Golden. I agree with you, Senator. I think it is a
great comment, and when I do trial work, I think it is
absolutely imperative for the judge to permit the lawyers to
try their case. I also think it is imperative for the judge to
be courteous. I think that the spirit of a courtroom is to make
it fair for both sides, and in that spirit the lawyers must be
given an opportunity to try their case.
Senator DeWine. Mr. Barrett?
Mr. Barrett. Mr. Chairman, I think that one of the most
important things, having been on both sides of it in the
courtroom, is whether you win or lose, you walk out of the
courtroom feeling that you got fair treatment. And I think that
the temperament of a judge and the way he allows the litigants
to present the case according to their theory of the case,
within certainly, you know, the appropriate constraints of the
Rules of Evidence, I think that goes a long way in allowing the
litigants and the parties to feel that they got a fair shake,
no matter what the decision is.
Senator DeWine. Mr. Cogan?
Mr. Cogan. Senator, I would echo my colleagues' comments. I
would note that anyone who has tried a number of cases has seen
judges who take the case away from the litigants. That is
something that I really think should be avoided if at all
possible. As I said before, litigants have to feel that they
had their hearing in court. Whether they prevail or not, they
had their hearing. And when the judge takes the case away, they
haven't had that chance.
Senator DeWine. Mr. Cogan, tell me a little bit about your
philosophy about settlements and how you would handle that, and
with it you could also cover the related issue of docket
management and how you would move cases along.
Mr. Cogan. Senator, I believe it is the responsibility of a
judge to actively manage his docket. That means two things: No.
1, conferencing cases often, keeping a handle on what is going
on, not allowing one side or the other in the case to employ
dilatory tactics to the disadvantage of the other side. I also
believe the judge has the responsibility, when possible, to
facilitate settlement. I know that in the Eastern District of
New York, there is a rule requiring mandatory ADR of all
matters involving $100,000 or less, and, where appropriate, I
would encourage litigants to explore alternative dispute
resolution techniques.
Senator DeWine. Mr. Barrett?
Mr. Barrett. Mr. Chairman, I feel that docket management is
a critical issue for judges to contend with, and I think that
personal involvement in a number of issues as the case works
its way through the system, such as discovery, keeps things on
track. I agree with my colleague that frequent reports are also
effective. Alternate dispute resolution is another means,
whether it be arbitration or whether it be mediation, those
types of things in appropriate cases can also speed the docket
along. You have a balancing act between effective and timely
docket management and also giving the parties time for
preparation. And I think that as a result of courtroom
experience, judges can tell what the appropriate amount of time
is and when somebody is engaged in some sort of delaying tactic
as opposed to actually having legitimate needs. So I think you
have to be mindful of that.
I often think that there is times where the lawyers in
cases are looking for direction from a judge. They may ask for
a legal--how does a judge feel about a certain legal issue, and
that helps them advise their clients intelligently on where a
case may end up. So I think, you know, when invited by counsel,
I think a judge's intervention and becoming part of the process
is also very helpful.
Senator DeWine. Mr. Golden?
Mr. Golden. Senator, in the Eastern District of
Pennsylvania, there are several programs in existence already
dealing with alternative dispute resolution, mediation, use of
United States magistrates to help settle cases. I think the
judge's obligation is to stay on top of his docket and make
sure, as my colleagues have said, that it keeps moving. I think
in today's world it is the only answer to expeditious handling
of cases to make the whole system better. I would continue to
employ the methods that exist and work hard to make sure that
the cases under my jurisdiction move.
Senator DeWine. Thank you very much.
Let me thank you all for your testimony today. We
appreciate it very much. Based on your records and certainly
everything that I have heard today at the hearing, you all
three seem very, very well qualified. I think you all will do a
great job on the Federal bench.
Let me just say that we are going to leave the record open
for 1 week for members of the Committee to submit written
questions to any of you. This means that the record will remain
open until Wednesday, April 5th, at 5 p.m., at which time it
will close. So there may be written questions submitted to you.
If they are during that period of time, we would strongly
suggest that you respond to those immediately and get those
back to us, which will expedite our ability to handle your
nomination.
So we thank you all very, very much for your attention. We
are glad that family members were here today. Good to see
everybody. Everyone has stayed awake.
[Laughter.]
Senator DeWine. So far. And we appreciate all of you being
here.
Thank you very much.
[Whereupon, at 10:13 a.m., the Committee was adjourned.]
[A submission for the record follows.]
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