[Senate Hearing 110-138, Part 4]
[From the U.S. Government Publishing Office]

                                                  S. Hrg. 110-138, pt.4



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


          MAY 7, JUNE 11, SEPTEMBER 9, AND SEPTEMBER 23, 2008


                                 PART 4


                           Serial No. J-110-8


         Printed for the use of the Committee on the Judiciary


                                                 S. Hrg. 110-138, pt. 4




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


          MAY 7, JUNE 11, SEPTEMBER 9, AND SEPTEMBER 23, 2008


                                 PART 4


                           Serial No. J-110-8


         Printed for the use of the Committee on the Judiciary

48-894 PDF                  WASHINGTON : 2009
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director

                            C O N T E N T S


                              May 7, 2008



Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement and letter................................   297
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     4


Levin, Hon. Carl, a U.S. Senator from the State of Michigan 
  presenting Helene N. White, Nominee to be Circuit Judge for the 
  Sixth Circuit, Raymond M. Kethledge, Nominee to be Circuit 
  Judge for the Sixth Circuit and Stephen Joseph Murphy III, 
  Nominee to be District Judge for the Eastern District of 
  Michigan.......................................................     6
Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan 
  presenting Helene N. White, Nominee to be Circuit Judge for the 
  Sixth Circuit, Raymond M. Kethledge, Nominee to be Circuit 
  Judge for the Sixth Circuit and Stephen Joseph Murphy III, 
  Nominee to be District Judge for the Eastern District of 
  Michigan.......................................................     8

                       STATEMENTS OF THE NOMINEES

Kethledge, Raymond M., Nominee to be Circuit Judge for the Sixth 
  Circuit........................................................    78
    Questionnaire................................................    79
Murphy, Stephen Joseph, III, Nominee to be District Judge for the 
  Eastern District of Michigan...................................   106
    Questionnaire................................................   108
White, Helene N., Nominee to be Circuit Judge for the Sixth 
  Circuit........................................................     9
    Questionnaire................................................    10

                         QUESTIONS AND ANSWERS

Responses of Raymond M. Kethledge to questions submitted by 
  Senator Grassley...............................................   178
Responses of Stephen Joseph Murphy III to questions submitted by 
  Senator Grassley...............................................   181
Responses of Helene N. White to questions submitted by Senators 
  Brownback, Coburn, Grassley, Hatch, Kyl, Sessions, Specter and 
  Cornyn.........................................................   183

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Chicago Illinois
    Michael S. Greco, October 31, 2005, letter...................   291
    C. Timothy Hopkins, May 6, 2008, letter......................   293

                             June 11, 2008

Brwonback, Hon. Sam, a U.S. Senator from the State of Kansas.....   304
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................   303

                       STATEMENTS OF THE NOMINEES

Gardephe Paul G., To be U.S. District Judge for the Southern 
  District of New York...........................................   305
    Questionnaire................................................   306
Matsumoto Kiyo A., To be U.S. District Judge for the Eastern 
  District of New York...........................................   344
    Questionnaire................................................   346
Seibel Cathy, To be U.S. District Judge for the Southern District 
  of New York....................................................   377
    Questionnaire................................................   378
Suddaby Glenn T., To be U.S. District Judge for the Northern 
  District of New York...........................................   412
    Questionnaire................................................   414

                       SUBMISSIONS FOR THE RECORD

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York presenting Kiyo Matsumotot, Cathy Seibel, Paul 
  Gardephe and Glenn Suddaby to the Federal Bench................   447
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont 
  presenting Kiyo Matsumotot, Cathy Seibel, Paul Gardephe and 
  Glenn Suddaby to the Federal Bench.............................   449

                           September 9, 2008

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   720
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   453
    prepared statement...........................................   735
Specter, Hon. Alren, a U.S. Senator from the State of 
  Pennsylvania...................................................   455


Allard, Hon. Wayne, a United States Senator from the State of 
  Colorado presenting of Christine Arguello, Nominee to be 
  District Judge for the District of Colorado, and Philip A. 
  Brimmer, Nominee to be District Judge for the District of 
  Colorado.......................................................   459
Bennett, Hon. Robert F., a United States Senator from the State 
  of Utah presenting Clark Waddoups, Nominee to be District Judge 
  for the District of Utah.......................................   457
Hatch, Hon. Orrin G., a United States Senator from the State of 
  Utah presenting Utah of Clark Waddoups, Nominee to be District 
  Judge for the District of Utah.................................   456
Salazar, Hon. Ken, a United States Senator from the State of 
  Colorado presenting of Christine Arguello, Nominee to be 
  District Judge for the District of Colorado, and Philip A. 
  Brimmer, Nominee to be District Judge for the District of 
  Colorado.......................................................   461
Specter, Hon. Arlen, a United States Senator from the State of 
  Pennsylvania presenting Gregory G. Garre, Nominee to be 
  Solicitor General of the United States.........................   463

                         STATEMENTS OF NOMINEES

Anello, Michael M., Nominee to be District Judge for the Southern 
  District of California.........................................   547
    Questionnaire................................................   548
Arguello, Christine M., Nominee to be District Judge for the 
  District of Colorado...........................................   624
    Questionnaire................................................   625
Brimmer, Philip A., Nominee to be District Judge for the District 
  of Colorado....................................................   667
    Questionnaire................................................   669
Garre, Gregory G., Nominee to be Solicitor General of the United 
  States.........................................................   503
    Questionnaire................................................   507

Scriven, Mary Stenson, Nominee to be District Judge for the 
  Middle District of Florida.....................................   583
    Questionnaire................................................   585
Waddoups, Clark, Nominee to be District Judge for the District of 
  Utah...........................................................   465
    Questionnaire................................................   466

                         QUESTIONS AND ANSWERS

Responses of Gregory G. Garre to questions submitted by Senator 
  Durbin.........................................................   698

                       SUBMISSIONS FOR THE RECORD

Clement, Paul D., Acting Solicitors General of the United States, 
  and Walter E., Dellinger, III, Theodore B. Olson and Barbara D. 
  Underwood, former Solicitors General of the United States......   721
Congressional Research Service, Denis Steven Rutkus, Specialist 
  of the Federal Judiciary and Kevin M. Scott, Analyst on the 
  Federal Judiciary, Government and Finance Division, Washington, 
  D.C............................................................   723
Martinez, Hon. Mel, a U.S. Senator from the State of Florida, 
  statement......................................................   743
Millett, Patricia A., Akin Gump Strauss Hauer & Feld LLP, 
  Washington, D.C., letter.......................................   744
Salazar, Hon. Ken, a U.S. Senator from the State of Colorado, 
  statement......................................................   745

                           September 23, 2008

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas, 
  prepared statement.............................................   965
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   749
    prepared statement...........................................   970
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   751


Brownback, Hon. Sam, a U.S. Senator from the State of Kansas 
  presenting Eric F. Melgren a Nominee to be District Judge for 
  the District of Kansas.........................................   752
Casey, Hon. Robert, Jr., a U.S. Senator from the State of 
  Pennsylvania presenting C. Darnell Jones, II, a Nominee to be 
  District Judge for the Eastern District of Pennsylvania, 
  Mitchell S. Goldberg a Nominee to be District Judge for the 
  Eastern District of Pennsylvania, and Joel H. Slomsky a Nominee 
  to be District Judge for the Eastern District of Pennsylvania..   753
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas 
  presenting Eric F. Melgren a Nominee to be District Judge for 
  the District of Kansas.........................................   754
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting Anthony J. Trenga a Nominee to be District Judge for 
  the Eastern District of Virginia...............................   752
Webb, Hon. Jim, a U.S. Senator from the State of Virginia 
  presenting Anthony J. Trenga a Nominee to be District Judge for 
  the Eastern District of Virginia...............................   754

                         STATEMENTS OF NOMINEES

Goldberg, Mitchell S., Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   841
    Questionnaire................................................   842
Jones, C. Darnell, II, Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   811
    Questionnaire................................................   812
Melgren, Eric F., Nominee to be U.S. District Judge for the 
  District of Kansas.............................................   907
    Questionnaire................................................   908
Slomsky, Joel H., Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   869
    Questionnaire................................................   870
Trenga, Anthony J., Nominee to be U.S. District Judge fo the 
  Eatern District of Virginia....................................   755
    Questionnaire................................................   757

                         QUESTIONS AND ANSWERS

Responses of Eric F. Melgren to questions submitted by Senator 
  Kennedy........................................................   960

                       SUBMISSIONS FOR THE RECORD

Casey, Robert P., Jr., a U.S. Senator from the State of Kansas, 
  statement......................................................   968
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  statement......................................................   973
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas, 
  statement......................................................   972
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  statement......................................................   977


Anello, Michael M., Nominee to be District Judge for the Southern 
  District of California.........................................   547
Arguello, Christine M., Nominee to be District Judge for the 
  District of Colorado...........................................   624
Brimmer, Philip A., Nominee to be District Judge for the District 
  of Colorado....................................................   667
Gardephe Paul G., To be U.S. District Judge for the Southern 
  District of New York...........................................   305
Garre, Gregory G., Nominee to be Solicitor General of the United 
  States.........................................................   503
Goldberg, Mitchell S., Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   841
Jones, C. Darnell, II, Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   811
Kethledge, Raymond M., Nominee to be Circuit Judge for the Sixth 
  Circuit........................................................    78
Matsumoto Kiyo A., To be U.S. District Judge for the Eastern 
  District of New York...........................................   344
Melgren, Eric F., Nominee to be U.S. District Judge for the 
  District of Kansas.............................................   907
Murphy, Stephen Joseph, III, Nominee to be District Judge for the 
  Eastern District of Michigan...................................   106
Scriven, Mary Stenson, Nominee to be District Judge for the 
  Middle District of Florida.....................................   583
Seibel Cathy, To be U.S. District Judge for the Southern District 
  of New York....................................................   377
Slomsky, Joel H., Nominee to be U.S. District Judge for the 
  Eastern District of Pennsylvania...............................   869
Suddaby Glenn T., To be U.S. District Judge for the Northern 
  District of New York...........................................   412
Trenga, Anthony J., Nominee to be U.S. District Judge fo the 
  Eatern District of Virginia....................................   755
Waddoups, Clark, Nominee to be District Judge for the District of 
  Utah...........................................................   465
White, Helene N., Nominee to be Circuit Judge for the Sixth 
  Circuit........................................................     9



                         WEDNESDAY, MAY 7, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:11 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Cardin, Specter, Hatch, Grassley, 
Kyl, Sessions, Cornyn, Brownback, and Coburn.

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. I have been speaking during 
the last several weeks about the progress we have made and are 
making in repairing the terrible damage done to our 
confirmation process and about our progress in reducing 
judicial vacancies.
    The American people do not want judicial nominations rooted 
in partisan politics. They want Federal judges who understand 
the importance of an independent judiciary. Our independent 
courts are a source of America's strength, endurance and 
stability. Our judicial system has been the envy of the world. 
The American people expect the Federal courts to be impartial 
forums where justice is dispensed without favor to the right or 
the left or to any political party or faction. They are the 
only lifetime appointments in our Government, and as a result, 
these nominations matter a great deal. The Federal judiciary is 
the one arm of our Government that should never be politicized 
or made political, regardless of whether we have a Democratic 
President or a Republican President.
    Now, today we see a demonstration of the progress about 
which I have been speaking and for which I have been working. 
Today's hearing moves us closer to confirming President Bush's 
nominations to the last two vacancies on the Sixth Circuit 
Court of Appeals. This completes the task I began when I became 
Chairman in the summer of 2001, when the Sixth Circuit was in 
turmoil and nominations had been road-blocked for years. At 
that point there were four vacancies on the Sixth Circuit. I 
thought I would go through some of this history for those who 
may be new to all this or may not remember this.
    When I scheduled a hearing and a vote for Judge Julia Smith 
Gibbons, and then for Judge John Marshall Rogers, we were able 
to break an impasse that had lasted for 5 years. The other 
party had blocked all of President Clinton's nominees. I 
quickly moved to President Bush's. And if we confirm Judge 
White and Mr. Kethledge, that would complete the process by 
filling the two remaining vacancies on the Sixth Circuit.
    I continue in this Congress, and I will continue with a new 
President in the next Congress, to work with Senators from both 
sides of the aisle to ensure that the Federal judiciary remains 
independent and able to provide justice to all Americans, 
without fear or favor.
    The Michigan vacancies on the Sixth Circuit have proven a 
great challenge. I do want to commend Senator Levin and Senator 
Stabenow for working to end the impasse. I have urged the 
President to work with the Michigan Senators and, after 7 
years, he has. Last month our extensive efforts culminated in a 
significant development that can lead to filling the last two 
vacancies on the Sixth Circuit, both vacant so long that they 
have now been classified as ``judicial emergencies.''
    This accomplishment stands in sharp contrast to the actions 
of my friends, the Senate Republicans who refused to consider 
any--any--of the highly qualified nominations to the Sixth 
Circuit Court of Appeals during the last 3 years of the Clinton 
administration. Those nominees included Judge White; also, 
Kathleen McCree Lewis, an accomplished attorney and the 
daughter of former Solicitor General of the United States and 
former Sixth Circuit Judge Wade McCree; and Professor Kent 
Markus. Professor Kent Markus was supported by his home-State 
Senators, both Republicans.
    So, accordingly, I am delighted to welcome Judge Helene 
White to the Committee. Judge White has served on the Michigan 
Court of Appeals during the past 15 years, having been elected 
by the people of Michigan in 1992. Before that she served for a 
dozen years on the Wayne County Circuit Court, a court of 
general trial jurisdiction, the Common Pleas Court for the city 
of Detroit, and the 36th District Court of Michigan. But here 
is how she is described by the Bush White House on their 
website. President Bush's website described her as ``an 
experienced and highly qualified judge, who is known for her 
intellect, work ethic, and demeanor.'' I do not want to upset 
President Bush by saying this, but I totally agree with the 
President on this issue. In addition, she has been active as a 
member of the legal community and of community organizations 
including COTS, the Coalition on Temporary Shelter, something 
my wife and I support in Burlington, Vermont; JVS, Jewish 
Vocational Services; and the Metropolitan Detroit Young Women's 
Christian Association.
    Now, she was first nominated by President Clinton to a 
vacancy on the Sixth Circuit in January 1997, more than 11 
years ago, but the Republican-led Senate refused to act on her 
nomination. She waited in vain for 1,454 days for a hearing, 
before her nomination was withdrawn in March of 2001. Hers was 
one of the scores--actually, about 60--of qualified judicial 
nominees who were pocket filibustered during that time. But as 
I said, last month President Bush reconsidered, renominated 
her, and according to his website has very high praise for her.
    Our second Sixth Circuit nominee is Raymond Kethledge. Mr. 
Kethledge is a young man who has spent 8 years in legal 
practice in Michigan beginning as an associate in the 
litigation department of Honigan Miller Schwartz and Cohn, 
later as a partner at the boutique litigation firm of Feeney 
Kellett Weinner and Bush and, since the summer of 2003, as a 
founding member of his own firm, that of Bush Seyferth 
Kethledge and Paige. He also spent a year as an in-house 
counsel at Ford Motor Company in their general counsel's 
office. I am also glad to see that he has performed pro bono 
legal services, something I have always thought lawyers should 
do and something that the managing partner in the law firm I 
was in when I first came out of law school insisted that 
everybody perform pro bono service, as did he.
    Our third nomination for consideration today is the 
President's recent nomination of Stephen Joseph Murphy III to 
be a United States District Judge for the Eastern District of 
Michigan. That vacancy is also classified as a ``judicial 
    When on April 15 he announced the renomination of Judge 
White, I commended the President. Since then I have sought to 
expedite consideration of these Michigan nominees in 
recognition of the breakthrough represented by the agreement 
reached between the President and the Michigan Senators. The 
Michigan Senators have always been interested in a bipartisan 
solution to judicial vacancies on the Sixth Circuit. I 
remember, Senator Levin, you had worked, and Senator Stabenow, 
with former Governor Engler, actually a Republican Governor, 
and reached an agreement that he was strongly in favor of but 
was rejected by the White House. And you had previously 
proposed a bipartisan commission as a way to reach consensus in 
Michigan. Today, I thank and commend the Senators from 
Michigan, and again I thank the President for finally working 
with them and us.
    In light of that cooperation, we have taken extraordinary 
steps to expedite this hearing. I thank all members for their 
cooperation. I recently received a letter from Senator 
McConnell and Senator Specter in which they note the importance 
of our receiving updated ABA peer reviews for these new 
nominations. I want Senator Specter to know that I agree with 
him that those are important. The ABA Standing Committee has 
been working diligently to provide reviews on the recent 
nomination of Justice Steven Agee to the Fourth Circuit as well 
as other nominations. They have been helpful, and we appreciate 
their efforts. Given the ABA ratings we have received in 
connection with the prior nominations of Judge White and Mr. 
Murphy, I expect the new ratings will not present a concern 
about qualifications. As I have assured Senators McConnell and 
Specter, I will seek to ensure that we proceed in an orderly 
fashion, that all Senators have a fair opportunity to question 
the nominees, and that we have all the materials we need in 
order to fairly consider these nominations.
    Now, I am sure there are some who prefer partisan fights 
designed to energize a political base during an election year. 
I do not. The Republican Senate majority during the last 5 
years of the Clinton administration more than doubled vacancies 
on our Nation's circuit courts. They went from 12 to 26 to 32 
during the transition. We have been able to reverse that trend. 
We have reduced circuit vacancies by almost two-thirds. Today 
there are fewer circuit court vacancies than at any time since 
the 1996 session. In fact, our work has led to a reduction in 
vacancies in nearly every circuit. We are heading toward 
reducing circuit court vacancies to single digits for the first 
time in decades. With these nominations, we are also poised to 
add the Sixth Circuit to the other five circuits without a 
single vacancy, thanks to our efforts.
    I am determined to prioritize progress, not politics, and 
focus the Committee on those nominations on which we actually 
can make progress, those on which the White House has finally 
begun to work with the Senate. Of course, the alternative is to 
risk becoming embroiled in contentious debates for months and 
then foreclose any of the progress we have made. We saw it 
happen last year when we had a controversial nomination took 
5\1/2\ months of debate after a hearing before Senate action 
was possible. We saw what happened during the last several 
months of the last Congress. There were many hearings on many 
controversial nominations, and everything slowed up. I like to 
make progress, and that is what we have tried to do. And during 
the years that I have been privileged to serve as Chairman of 
this Committee, we have been able to.
    Senator Specter.

                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    I think that it bears repeating that we are approaching a 
hearing for Judge White which does not conform with the 
practices of the Committee and is an unusual rush to judgment. 
I begin with the letter sent to the Chairman and me yesterday 
from the American Bar Association raising concerns and 
objecting to the hearing in advance of the ABA report.
    I look at the sequence with Judge White's nomination on 
April 15th of this year, 21, 22 days ago; the questionnaire not 
completed until April 25th; FBI report not completed until 
April the 25th; and at the time sequence where nominations have 
been handled in the past with deliberation and not this 
racetrack approach.
    The comments in 2001 were noted in the ABA publication 
which said, ``Several key Democratic Senate leadership, most 
significantly Patrick J. Leahy of Vermont, say that''--
    Chairman Leahy. Leahy. Not Leehy. Leahy.
    Senator Specter. Excuse me, but I have the floor.
    Chairman Leahy. I just want to--
    Senator Specter. Excuse me. I know that is not regarded 
around here, Mr. Chairman, but I have the floor. If you have a 
correction, you may have a chance to do it.
    `` * * * say that they will wait for the ABA's input before 
moving forward on any nomination.''
    When a hearing was scheduled for Peter Keisler 33 days 
after his nomination, all of the Committee Democrats signed a 
letter to me asking for a postponement. One of the concerns 
was, ``Given how quickly the Keisler hearing was scheduled, the 
ABA has not even completed its evaluation of this nominee.'' 
The letter said, ``We should not be scheduling hearings for 
nominees before the Committee has received the ABA ratings.''
    Senator Schumer said, ``So let me reiterate some of the 
concerns we expressed about proceeding so hastily on this 
nomination. First, we have barely had time to consider the 
nominee's record. Mr. Keisler was named to this seat 33 days 
ago, so we are having this hearing with astonishing and 
inexplicable speed.'' That does not compare with the speed of 
this hearing.
    The situation is even in more stark contrast when we take a 
look at how long people have been waiting for hearings or 
action by the Committee. Peter Keisler's nomination has been 
pending for more than 675 days. Robert Conrad has waited 290 
days for a hearing and has been the subject of critical, really 
defamatory statements in this Committee room about being anti-
Catholic without being given a chance to defend himself. 
Stephen Matthews, to the Fourth Circuit with a judicial 
emergency, has been waiting over 240 days.
    Since the hearing has been scheduled, the Republican 
members are prepared to proceed. We have accommodated 
schedules. I met for the better part of an hour yesterday with 
Judge White. But it would be my hope that the Committee will 
schedule hearings for others like Conrad and Matthews and 
    It is hard to see the judicial wars being exacerbated and 
intensified in the U.S. Senate, but I see that coming if, as 
stated, this is the last of the circuit court nomination 
hearings. This has been a battle to the detriment of the 
American people for the last 20 years. In the last 2 years of 
the Reagan administration, the Democrats controlled and 
stonewalled. The same in the last 2 years of the Bush I 
administration. And in the last 6 years of the Clinton 
administration, Republicans were even worse. Hard to be worse, 
but Republicans were. And I voted with the Clinton nominations 
when they were qualified. And the Senate almost came apart in 
2005 with the filibusters and the so-called constitutional or 
nuclear option.
    And it had been my hope that Senator Leahy and I would have 
structured a new era in the Senate. In the Roberts hearing, 
Senator Leahy took a courageous leadership position supporting 
Roberts for Chief Justice. Counting the Independent in the 
Senate, a majority of the Democrats, 23, voted for Roberts. And 
it had been my hope that we would come to a truce. But the 
warfare goes on, and the American people are in the firing 
    There are judicial emergencies all over this country, 
exemplified by the Fourth Circuit where people need a day in 
court and are not getting it, people who have automobile 
accidents and are out of work and have medical bills, cannot 
get redress in the courts. Verdicts cannot be heard on appeal. 
We do not have to paint a graphic picture of what judicial 
vacancies mean. And this is all to the detriment of the 
American people. But I tell you, Mr. Chairman, a longstanding 
trend of some 40 years that is becoming very, very personal, 
and if it continues, there is going to be a new Congress, there 
may be a President of a different party, and what has happened 
will look modest in comparison to what the scorched earth may 
    So I would urge you to reconsider. I would urge you to use 
some of the approach which you and I took to the confirmation 
of Roberts and Alito. When the White House wanted to have the 
Roberts hearings begin on August 28th, I consulted with you, 
and I thought your objections were sound. And the hearings 
began after Labor Day. Your view prevailed because I thought it 
was right over the White House view. Similarly, the White House 
wanted Alito--I know the time, Mr. Chairman. I also know when 
you arrived. The White House wanted Alito confirmed before 
Christmas, and you objected, and you were right. And I agreed 
with you. Later, the President personally told me that the 
timing was correct. So here you see, Senator Leahy, you and he 
have agreed more than once--not much more than once, but 
occasionally more than once.
    But I do hope for the sake of the country and for the sake 
of the Senate that you reconsider this nomination-confirmation 
process. Thank you.
    Chairman Leahy. Well, thank you. I am glad to hear the 
President said that about the timing to you. I wish he had said 
it to me. In fact, he seemed surprised several months after the 
Roberts nomination--when I told him I had voted for Roberts, he 
seemed surprised to hear that I had.
    I would note on the ABA, we are not going to vote on any of 
this until the ABA reports are in. As you know, there is a 
precedent for this. When you were Chairman, we held five 
hearings under you as Chairman before ABA ratings came in, 
including one where the rating turned out that the person was 
not qualified. And I know that people have been waiting. Judge 
Helene White has been waiting for 11 years. Mr. Kethledge and 
Mr. Murphy have been pending longer than Conrad and Matthews 
that you mentioned on their own terms here in Michigan. But 
let's hear from one of the most senior members of the Senate, 
Senator Levin--he has been very patiently waiting--and Senator 


    Senator Levin. Mr. Chairman, thank you and Senator Specter 
and members of the Committee for holding the hearing today. We 
are pleased to be here to introduce three Michigan nominees: 
Helene White and Raymond Kethledge, whom the President has 
nominated to the Sixth Circuit Court of Appeals; and Stephen 
Murphy, whom the President has nominated to the Eastern 
District of Michigan.
    Judge White has been a judge on the Michigan State Court of 
Appeals for 15 years. Before that, she served as judge on the 
Wayne County Circuit Court, which is our top trial court, for 
10 years. She graduated with honors from Barnard College, 
Columbia University, and earned her J.D. at the University of 
Pennsylvania Law School.
    Judge White, as the Chairman mentioned, was previously 
nominated by President Clinton for a vacancy on the Sixth 
Circuit starting in 1997. The nominations were returned to the 
President without a hearing, as was the nomination of Kathleen 
McCree Lewis. And I want to make reference to Kathleen McCree 
Lewis here today for two reasons. First, I want to honor her 
memory in this setting. I also want to make reference to her 
because there is, in a letter which you have received from the 
widower of Judge Susan Bieke Neilson, whose vacancy is up for 
nomination today, a letter to the Chairman and the Ranking 
Member of this Committee from Judge Neilson's husband. And 
Judge Neilson served on the Sixth Circuit for a tragically 
short period of 3 months, and, again, it is her seat on the 
Sixth Circuit that is the open seat to which Judge White has 
been nominated. This is a few excerpts from the letter from 
Jeff Neilson, who is the spouse, the widower of Judge Neilson.
    ``Senators Leahy and Specter: I thought it appropriate to 
correspond with you upon my becoming aware of the nomination of 
Judge White to fill the vacancy on the United States Court of 
Appeals for the Sixth Circuit occasioned by the death of my 
wife, Susan Bieke Neilson, and to state without reservation 
that Susan would be absolutely delighted that Helene would be 
her successor on the Sixth Circuit.'' And then he makes 
reference to their fondness for Kathy McCree Lewis, and he 
closes by saying, ``I believe that Helene will reflect the best 
qualities of both Susan and Kathleen in the performance of her 
duties, so that although death has precluded their presence on 
the Sixth Circuit, they will be there in spirit.''
    The second nominee is Ray Kethledge. He is currently a 
partner at Bush Seyferth Kethledge and Paige in Troy, Michigan. 
Before joining the firm, Mr. Kethledge served as a law clerk to 
Justice Anthony Kennedy on the U.S. Supreme Court, having 
earlier clerked for Judge Ralph Guy of the U.S. Court of 
Appeals for the Sixth Circuit, a very beloved judge. Mr. 
Kethledge also served as judiciary counsel to Senator Spence 
Abraham, our former colleague, whom we all know, from 1995 to 
1997, and Ray Kethledge graduated magna cum laude from the 
University of Michigan Law School in 1993.
    Finally, Stephen Murphy, who has been nominated to the 
District Court for the Eastern District of Michigan, currently 
serves as the U.S. Attorney for the Eastern District. Prior to 
his service as United States Attorney, Mr. Murphy was an 
attorney with General Motors' legal staff in Detroit and worked 
for the U.S. Department of Justice for more than 12 years. He 
is a 1987 graduate of the St. Louis University School of Law.
    Finally, I want to again thank this Committee for your 
efforts to promote a resolution of this long unresolved matter, 
and I look forward to working with our colleagues to move these 
three nominations hopefully through the Senate.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Levin.
    Senator Stabenow.

                          OF MICHIGAN

    Senator Stabenow. Well, thank you, Mr. Chairman, for 
holding this hearing, and while we all recognize the checkered 
past as it relates to judicial nominations, I would, with all 
due respect, just indicate that we have here today two 
Democratic Senators that are here introducing the President's 
nominations. And it seems to me this is the process that we 
want to have happen, for people to be coming together. And I 
hope this is viewed as a positive reflection of the process of 
working together.
    I am very pleased to join Senator Levin in being here to 
welcome and introduce Judge Helene White and Mr. Raymond 
Kethledge and also Mr. Stephen Murphy III and their families. 
It is wonderful to see their families and children, and we know 
this is a very special day for all of them.
    As has been indicated, Judge Helene White brings 30 years 
of distinguished legal experience to the Federal bench. She has 
been a State judge since 1981, has served on both the 36th 
District Court for the city of Detroit and Wayne County Circuit 
Court. Since 1992, she has served on the Michigan Court of 
Appeals. She is a graduate of the University of Pennsylvania 
Law School and the Barnard College at Columbia University. I 
want to welcome Judge White and her family. It was wonderful to 
meet her two children today.
    Mr. Raymond Kethledge graduated from the University of 
Michigan and the University of Michigan Law School. I have to 
say as a Michigan State University graduate, this is a real 
historic moment here that I am supporting a University of 
Michigan graduate. Mr. Kethledge has worked for Senator Spence 
Abraham as his judicial counsel and followed that by clerking 
for both Justice Kennedy on the Supreme Court and Judge Ralph 
Guy on the Sixth Circuit of Appeals, and he is currently in 
private practice. So we want to welcome Mr. Kethledge and his 
family as well, and I was so pleased to meet his son and 
daughter today as well. We know it is a special day for them.
    And, finally, I would like to introduce Stephen Murphy. He 
is a graduate of St. Louis University School of Law. Mr. 
Murphy's practice as both a Federal prosecutor and defense 
attorney in his practice, business litigation as an attorney 
for General Motors. Since 2005, he has served as the U.S. 
Attorney for the Eastern District of Michigan. Mr. Chairman, we 
welcome Mr. Murphy and his family as well, and very much 
appreciate your taking the time of the Committee for this 
    Thank you.
    Chairman Leahy. Well, thank you very much, and I know both 
of you, I understand, have other committees you are supposed to 
be at, so I appreciate your being here. Thank you.
    As Senator Levin and Senator Stabenow step down, we will 
just take a minute so we can set up to have the three nominees 
come back up to the table. Thank you very, very much.
    Chairman Leahy. Would you please stand and raise your right 
hand? Do you solemnly swear that the testimony you will give in 
this matter will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Judge White. I do.
    Mr. Kethledge. I do.
    Mr. Murphy. I do.
    Chairman Leahy. Thank you. Please be seated.
    Traditionally what we do at this point is ask for any 
opening statement from any one of you, and the tradition is I 
would ask you to be brief. But I would ask you in doing that if 
you would first--and let's begin with you, Judge White--if you 
have members of your family or associates or friends who are 
here, please introduce them, because that actually goes into 
the record, and someday in the White Library or the Kethledge 
Library or the Murphy Library, somebody will look back there 
and say, ``I was there at that hearing.''
    Judge White, go ahead. Do you have family members here?
    Judge White. I do.
    Chairman Leahy. Please introduce them. There should be a 
little red button. If the light comes on, it is on. He is going 
to show you. Okay. Go ahead.

                       THE SIXTH CIRCUIT

    Judge White. Thank you very much, Chairman Leahy. I will 
then begin by introducing the friends and family who have 
joined me today. Over the years, I have been blessed with their 
love and support, and I am honored that they took the time to 
come today.
    I have some friends from Michigan who are with me: Jane 
Schelberg, Cathy Radner, and Elaine Fieldman. And I have 
friends, I have extended family: from Washington State Amy 
Regan, and from Washington, D.C., Josh Levin and his family. 
And, of course, I have my immediate family, and that would be 
my sister and her husband, Nancy and Larry Roth, from New York; 
and my precious children, Benjamin and Francesca. And I omitted 
my friends from law school: Nancy Walters from Boston, and Ruth 
Katz from Washington, D.C.
    Chairman Leahy. When you get a copy of the transcript, you 
can double-check the spelling of the names, because they will 
all be interested in. I am delighted to see your children here. 
I have a granddaughter named Francesca. That is a wonderful 
    Judge White. And I would like to thank you, Chairman Leahy, 
Ranking Member Specter, members of the Committee, for this 
opportunity to appear before you. And I would like to take this 
moment to express my deep gratitude to President Bush for 
nominating me to this high office. I am both awed and honored 
and humbled by the trust that he has placed in me by making 
this nomination.
    Chairman Leahy. Thank you. Is that it?
    Judge White. Yes, sir. Thank you.
    [The biographical information follows.] 
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    8Chairman Leahy. Thank you.
    Mr. Kethledge, would you please tell us if you have members 

                     FOR THE SIXTH CIRCUIT

    Mr. Kethledge. Yes, thank you, Mr. Chairman. I would like 
to introduce my wife, Jessica; my daughter, Ella; my son, Ray. 
I am also joined by--I am going to get in trouble if I forget 
anyone here. I am joined by--
    Chairman Leahy. That is why we keep the record open, Mr. 
    Chairman Leahy. And at some point, you can say, ``See, you 
did not hear me say your name, but here it is in the record.'' 
Go ahead.
    Mr. Kethledge. I am joined by my father, Ray Kethledge; my 
sister, Laura Strasius; and my mom, Diane Kethledge. I am also 
honored to have with me today two of my partners who made the 
trip out from Michigan: Patrick Seyferth, who loves attention, 
and Rick Paige. And I am joined by a whole bunch of other 
friends: Jim Neill, Ward Bobitz, Steve Hessler, Karen Lloyd--
now I am going to forget somebody. They know who they are, and 
I am grateful that they are here.
    I would like to thank the Chairman, I would like to thank 
the Committee for having this hearing. I would like to thank 
the President for nominating me. I am deeply grateful for that. 
I would very much like to thank Senators Levin and Stabenow for 
their gracious introduction and for their hard work and 
openness in getting us to this point. And I would very much 
like to thank my wife for standing by me through this process.
    Chairman Leahy. Well, thank you, Mr. Kethledge. It has got 
to be great also to have your parents here. I know how thrilled 
my parents were when they were able to see me sworn in several 
times in the U.S. Senate. It was a thrill for me, and I think a 
thrill for them.
    Mr. Kethledge. Thank you.
    [The biographical information follows.]

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    5Chairman Leahy. Mr. Murphy.


    Mr. Murphy. Thank you very much, Chairman Leahy.
    First, I would ask my wife, Amy, and my two precious 
children, Stevie and Natalie, to stand up. There is Natalie and 
Stevie. Can we see you? Come out here so everybody can see you. 
That is Stevie Murphy.
    My mother and father join us from St. Louis. Mom and Dad. 
And my sister, Tina, and her husband John Godar, who is a very 
close friend and lawyer in St. Louis, join us as well.
    Two of my colleagues from the Justice Department, Rita 
Foley and Myra Stith, are here as well. And I think that is it.
    I would like to give thanks, Chairman Leahy, to the members 
of the Committee, to the Ranking Member, and, Senator Leahy, I 
would really like to thank you for scheduling this hearing and 
for treating us fairly, as you have. I am extremely grateful to 
Senators Levin and Stabenow for introducing us and for working 
to get us here today. My great thanks goes to the President of 
the United States for this incredible gift and humbling 
bestowing of a nomination on me. And, of course, my family I am 
terrifically grateful for. So thank you for everything.
    Chairman Leahy. Well, thank you very much, and let me ask 
this question of Mr. Kethledge and Judge White. The courts are 
really the only undemocratic branch of our Government, and in 
the Constitution, the Founders set it up that way. So they have 
a special responsibility to be open to those Americans who have 
the least power. They cannot vote for them or against them. 
They have--and with those Americans who have the least power, 
they also have the need for the greatest protection. I think 
the nominees have to show sensitivity to people of different 
backgrounds and show they have a commitment to equal justice 
under the law.
    Can you describe any situations where, as either the lawyer 
or as the judge, you have taken difficult positions on behalf 
of comparatively poor or powerless individuals or members of 
racial minorities?
    Judge White.
    Judge White. Senator, thank you for asking that question. I 
began my judicial career as a judge on the Common Pleas Court 
and the 36th District Court for the city of Detroit. In that 
capacity, most of the cases that came before me were with pro 
per litigants, and I quickly learned how difficult it might be 
for someone who is uncounseled to appear before the court, how 
intimidating it might be. And in that service, I took great 
pains to both make people comfortable and to help them state 
what was on their minds, to help bring out what brought them 
before the court.
    In fact, when I was on the traffic court, I saw that the 
system was not responsive to pro per litigants in the sense 
that they would come to court with a number of problems that 
were just lurking in the file room, and they would leave 
thinking that they had taken care of them. And I instituted 
procedures in my courtroom that meant that when they came to 
court, all of the legal problems that they had relating to the 
matter but not necessarily brought before the court because of 
the problems were addressed.
    I mention it because it was unpopular to those who thought 
that the system should just bring people in and out. But I have 
to say that at the end of my tenure, all the other courtrooms 
were using the same procedures, and I knew when I went home at 
the end of the day that the people that came before me received 
the justice that they were entitled to.
    [The biographical information follows.]

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    Chairman Leahy. Thank you.
    Mr. Kethledge.
    Mr. Kethledge. Thank you, Mr. Chairman. I would point to a 
couple of experiences that I have had. The first is while I was 
at Honigan Miller, I worked with people in Detroit who were 
trying to take ownership of homes that had been subject to tax 
foreclosures by prior owners. And it was actually a difficult 
process to clear those prior tax liens from the titles of these 
folks who were trying to renovate their homes. I worked with a 
number of those people to get them clear title so that they 
could renovate their homes. For that work, I was named Pro Bono 
Lawyer of the Year for Community Legal Services in Detroit, and 
I am very proud of that.
    Chairman Leahy. And as I said, I feel very strongly that 
lawyers should do pro bono. Let me ask you one question, 
though, Mr. Kethledge. The overwhelming majority of your 
practice focused on civil litigation and commercial litigation, 
civil class action and so on. I went through your Senate 
questionnaire. About 5 percent of the cases were criminal. Of 
course, the Federal criminal docket has grown very 
substantially, and a lot of the appeals that are going to the 
circuit courts are from our criminal appeals.
    What will you draw on, what kind of experience, knowing 
that you are going to be hit with a whole lot of criminal cases 
when they come up on appeal?
    Mr. Kethledge. Well, Mr. Chairman, one experience I will 
draw on is also partly in answer to your earlier question. I 
did represent a man who was charged with negligent homicide. 
His name was Takendra Sharma. He was a man without many 
resources. He was involved in a fatal accident while he was 
driving a semi truck. I represented him, and that gave me a 
perspective on how important criminal litigation obviously is 
to the person who is the subject of the State's power and the 
prosecution, and an appreciation for the difficulty that an 
individual finds himself in when they are prosecuted. It 
humanized that side of criminal law for me. I would draw on 
that personal experience regarding what Mr. Sharma went 
through. He was acquitted.
    The other thing I would draw on, Mr. Chairman, is that when 
I was clerking, I did have very extensive exposure to criminal 
law doctrines. As the Chair mentioned, that is a big part of 
what Federal courts do. While I was clerking for Judge Guy and 
Justice Kennedy, I did become, I hope, reasonably well versed 
in the criminal doctrines themselves so that I would be able to 
draw on that legal experience.
    Chairman Leahy. Thank you.
    Mr. Murphy, I have not ignored you, but my time is up, and 
I have some questions for you on my next round.
    Senator Specter.
    Senator Specter. Judge White, in a case captioned People v. 
Santiago, the court of appeals in a panel on which you were a 
member upheld a jury conviction of a defendant for first degree 
felony murder and armed robbery and his life sentence without 
parole. You dissented, saying, ``While the evidence supports 
the conclusion that defendant dropped the two perpetrators who 
clearly committed the robbery and murder off near the house 
knowing that they intended to rob and possibly kill the victim, 
it is also clear''--referring to the defendant--``did so 
without any intent or desire to assist them in committing the 
    The majority say, ``To convict the defendant on an aiding 
and abetting theory, the prosecution must show that the 
defendant performed acts or gave encouragement that aided or 
assisted in the commission of the crime, and that he either 
intended to commit the crimes or knew the principal intended to 
commit the crime at the time he gave the aid or assistance.'' 
The Michigan Supreme Court denied the leave for appeal.
    Judge White, isn't it really pretty much standard, clear-
cut law that when somebody drives a co-defendant to a place 
where there is a robbery and a murder, that that kind of 
assistance constitutes guilt on the part of the co-conspirator, 
accessory before the fact?
    Judge White. Senator, I don't have the specific case in 
mind other than what you have just related to me. I can tell 
you that--
    Senator Specter. It is your case, isn't it?
    Judge White. Yes, sir. I have been on the court of appeals 
for 15 years and have sat in over 4,300 cases. So I don't have 
each one of them directly in mind, but I--
    Senator Specter. I understand that, but I have given you 
the facts. You have a co-conspirator who drives a co-defendant 
who robs and kills. What is your rationale for saying that that 
does not constitute complicity in the principal offenses?
    Judge White. Senator Specter, I went to law school in 
Pennsylvania, and the law in Michigan--let me say I approached 
that case by applying the law as enunciated by the Michigan 
Supreme Court regarding guilt for the principal offense. It is 
very, very true that many, many defendants who in that position 
where some of the facts were driving the person to the scene, 
dropping them off, would be--would constitute enough evidence. 
I don't have the exact evidence in mind, but in Michigan, to be 
responsible for the principal offense, one has to either share 
the intent to commit the principal offense or provide aid and 
support with knowledge that the principal offense was going to 
be committed.
    Senator Specter. Judge White, the problem with your 
explanation is that the Michigan Supreme Court disagrees with 
it. They denied leave for appeal, and the two judges who were 
sitting with you disagreed with it. So what I am looking for is 
some plausible explanation, if you have one, as to how you came 
to that conclusion.
    Judge White. I will again state that the requirement of 
Michigan law is that the defendant either has the intent to 
commit the principal offense, which here was the murder, or 
that there is evidence to show that he aided with the knowledge 
that that was the intent of the perpetrator.
    Senator Specter. That is what the court found, that he 
aided with the knowledge that the gunman intended to rob and 
    Judge White. Yes, and--
    Senator Specter. Let me ask you this, Judge White, because 
we have got quite a bit to cover. Are you standing by this 
decision? Do you think the two judges who formed the majority 
disagreed with your dissent and the Supreme Court which denied 
appeal were wrong?
    Judge White. Sir, I can only assume that if I read the 
briefs again and read the record from cover to cover, as I do, 
that I would have come to the same conclusion, that I had a 
reasonable legal basis for doing so and that based on my best 
assessment of applying the law to the facts that I read in that 
transcript, that there was a problem with the conviction. Yes, 
    Senator Specter. Well, my time expired in the middle of 
your answer, so I am going to yield. I thank so many of my 
colleagues for being here, and I think it is important to 
observe the 5-minute rule to give others a chance to question, 
although there are--we will return for a later round.
    Chairman Leahy. Senator Cardin?
    Senator Cardin. Thank you very much, Mr. Chairman. And let 
me thank all three of our nominees for their public service and 
thank their families, and we very much appreciate your 
willingness to continue to serve in the public life. It is not 
easy to serve as a Federal judge, and we thank all three of you 
for being willing to do that.
    I want to ask about an area that is a particular concern 
today, and that is, the relationship between the judicial 
branch of Government and the President, the executive branch, 
and the legislative branch. It is very likely that particularly 
at the appellate levels you are going to have to deal with 
Article II powers of the President. And as a result of the 
attack on our country on September the 11th, the administration 
has sought to use Article II powers in order, as they see it, 
to protect the safety of the people of this country. At times 
they have said that the urgency of the matter required 
extraordinary powers of the President. And I just want to get 
at least some indication from you as to how you will go about 
evaluating the requests that come in on Executive power under 
Article II and the restraints that are imposed either by 
statute passed by Congress or the Constitution. Mr. Kethledge, 
I would be glad to let you start.
    Mr. Kethledge. I would be happy to, Senator. Thank you.
    Clearly, there are limits on the Executive power. There are 
limits on the Commander-in-Chief power. Youngstown Sheet and 
Tube tells us that. That was a case where the President issued 
an Executive Order to seize steel mills, cited exigent 
circumstances related to the Korean War. The Supreme Court 
stepped forward and said no, you can't do that. That is a clear 
example of courts doing, I think, what the Senator described.
    How does a court go about that? I think that certainly as a 
court of appeals judge, you start with the Constitution itself. 
You go to Supreme Court precedent, which is obviously binding 
on any court of appeals. You look to the prior precedents of 
one's own circuit, which would be binding as well. The 
decisionmaking can also be informed by precedents from other 
    I think you look at those things, and you try to reach a 
lawful result, which is precisely that and which is not a 
result which is driven by passion or considerations of the 
moment. That is why judges have life tenure.
    Senator Cardin. Thank you, Mr. Kethledge. Let me just point 
out that the circumstances of 9/11 were unprecedented in 
America, and the war against terror is not a traditional war, 
as we have known it over the history of this Nation. And there 
were really some challenging moments, I think, between the 
judicial branch and the executive branch. And obviously we now 
have court decisions that will help us guide future 
    But we are in unprecedented times, and you may not have a 
clear case and precedent to rely on. And I would like you to 
expand a little bit more as to the respect between the three 
branches of Government. At times there have been some heated 
moments in this Committee between the executive and legislative 
branches as to whether the Congress can limit Article II 
powers. Ultimately, that is going to be determined by the 
courts. This is an area that really does require the 
independence of the judiciary, but in giving a fair ruling as 
to what our Constitution requires, mindful of the 
responsibilities of each branch of Government.
    Mr. Kethledge. Thank you, Senator. The branches are co-
equal, and I think what an Article II judge has to do if 
presented with the kind of question that you described is go 
through the process and the materials that I described. An 
answer may or may not emerge from those materials. There may be 
answers that are implicit in those which haven't been 
explicitly rendered in a court decision. But, clearly, Senator, 
I would say that no one is above the law, and that goes in 
wartime as well as in peacetime.
    Senator Cardin. Judge White.
    Judge White. I would join in many of the answers of my 
colleague, and I would just add that obviously the separation 
of powers is at the bedrock of our constitutional system. And 
from time to time we do have these conflicts. I think it is one 
of the most precious trusts of the Federal judiciary to rule in 
those cases, to address the delicate balance between the 
executive and legislative branch. The answers are of importance 
not just to members of those branches, but to the American 
citizens. And if I were confirmed and such a case would come 
before me, I would very carefully consider the very reasoned, 
legitimate arguments on both sides, the compelling arguments, 
apply the precedents, and with due regard for the seriousness 
of the question, come to the decision that seems to be 
appropriate under the applicable rules.
    Senator Cardin. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Cardin.
    I have a list from Senator Specter of the order of 
appearance on his side. Normally in the order I would follow, I 
would call first on Senator Brownback. But apparently he is not 
here. Senator Grassley is apparently not here. Senator Coburn 
had to step out. So, Senator Kyl, you are up.
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Chairman, let me just first briefly associate myself 
with the remarks of Senator Specter regarding the need for the 
Committee to apply a consistent standard for consideration of 
nominees, the time that we consider the questionnaires, the 
timing of the hearings, the ABA investigation and so on. And as 
part of the leadership, we would just note that the leadership 
agreement to use the best efforts to confirm three nominations 
by Memorial Day would not have required a violation of that 
standard if other pending nominees whose nominations have been 
pending for a lot longer had been moved forward rather than 
trying to move someone just nominated. Senator Specter 
mentioned who these other nominees were, the fact that they 
could be moved forward, and I would just say that there is no 
reason not to move those nominees forward. They are qualified. 
The ABA has deemed them qualified, and we have a constitutional 
obligation to do so. And I would note that from my perspective, 
anyway, it would be unacceptable for the Committee to not have 
any additional hearings, especially, I would note, since there 
is at least one nominee from Arizona pending and ready to be 
considered by the Committee.
    I generally ask questions that are general in nature about 
respect for the law, precedent, and so on, so let me ask each 
of the witnesses--and there are basically five questions here, 
and hopefully we can get through them fairly quickly. They deal 
with the concept that respect for the law is critical for any 
judge, somebody who is going to be judging others, and judgment 
with respect to judging others. So let me just ask each of you 
in turn, and we can start, Judge White, with you and then Mr. 
Kethledge and then Mr. Murphy.
    First of all, is there anything in your background that you 
believe might disqualify you from serving in the position to 
which you have been nominated?
    Judge White. No, sir, there isn't.
    Mr. Kethledge. No, sir.
    Mr. Murphy. No, Senator.
    Senator Kyl. Second, is there any public litigation that 
you have been involved in personally that might bear upon your 
responsibilities to serve as a judge?
    Judge White. No, Senator, there isn't.
    Mr. Kethledge. No, Senator.
    Mr. Murphy. No, Senator.
    Senator Kyl. Have you had any bad debts, late payments, for 
example, credit cards, student loans, taxes, tickets, that kind 
of thing?
    Judge White. I take my obligations very seriously. There 
have been no bad debts in the sense of judgments or bankruptcy, 
anything like that, no liens. I have on occasion gotten notices 
regarding that the amount of tax that was paid was 
insufficient. I paid those. All my taxes are paid. The same 
thing with any debts. I may have--from time to time there may 
have been a payment that was after a date, but immediately I 
satisfied that. I have no bad debts. I have no liens. I have 
none of the things that you have asked--oh, and you also, I 
think, said--what was the last one? Tickets?
    Senator Kyl. Well, I just said bad debts, late payments, 
for example, credit cards, student loans, taxes, tickets, and I 
said any similar--
    Chairman Leahy. If the Senator would yield just for a 
moment, and I obviously will give him more time to respond to 
this. Any of the financial backgrounds of all three of the 
nominees have been thoroughly vetted in the background checks 
by the White House, which is available to every Senator.
    Senator Kyl. I appreciate that.
    Chairman Leahy. Under the Memorandum of Understanding that 
we have between the White House and the Senate--and Senators do 
not, of course, go into anything that is in the FBI background. 
Not only is it a violation of our rules, but that memorandum--
and I am not suggesting the Senator from Arizona has, but I 
would hope that if we are going into things that are in the 
backgrounds of any of these three nominees' financial 
backgrounds or anything else, if it is in the background 
reports given by the White House, that we maintain ourselves to 
that. The Republican and Democratic counsel have been available 
to all Senators to go through any part that--
    Senator Kyl. I assure the Chairman I have not read the FBI 
report. I haven't talked to the White House about anything. I 
am not interested in financial records. I am mostly interested 
in, again, matters that would demonstrate a lack of respect for 
the law by not complying with the law oneself. And that is all 
I am getting at here.
    Judge White. I just want to--
    Senator Kyl. Anything else that you wanted to say?
    Judge White. [continuing.]--finish the answer. And, yes, 
sir, I also take my obligations as a member of the motoring 
public seriously, and I try to abide by the rules of the road 
at all times, and at times I have had lapses and have received 
tickets, yes. I am not proud of them, but I have.
    Senator Kyl. Okay.
    Mr. Kethledge. Senator, I am not aware of any issues except 
I did have a few speeding tickets a long time ago. I can't 
remember the last one, though.
    Senator Kyl. For the record, I will say I have two. Okay?
    Senator Kyl. Mr. Murphy.
    Mr. Murphy. I will, too, Senator. I have definitely sped 
and paid my tickets. And once the IRS told me after April 15th 
I owed more money, and I paid it immediately. So other than 
that, I have done nothing to show disrespect for the law.
    Senator Kyl. Okay. Finally, in this regard, respect for the 
law is also illustrated by past conduct, and this question goes 
to things of a public record, whether there has been any matter 
of public record that others may learn that would cast doubt on 
your respect for the law, either State or Federal law.
    Judge White.
    Judge White. No, Senator.
    Senator Kyl. Mr. Kethledge.
    Mr. Kethledge. I am not aware of anything, Senator.
    Senator Kyl. Mr. Murphy.
    Mr. Murphy. No, sir.
    Senator Kyl. Might I, with the Chairman's indulgence, since 
we had our little conversation, just ask one-and-a-half other 
question. Could you just in a quick percentage, each of you 
tell me what your extent of experience with the Federal as 
opposed to State law has been in your career, since you are 
nominated to a Federal law position here?
    Judge White. I have had--as a State judge for 27 years, we 
do have issues that come before us that are issues that might 
come before the Federal courts, first of all, with respect to 
the--well, the diversity jurisdiction would be not Federal 
issues, but I have dealt with preemption issues since 1983.
    Senator Kyl. If I could just--I am just trying to do this 
real quickly, just sort of a general percentage--
    Chairman Leahy. I am indulging the Senator from Arizona.
    Senator Kyl. And I indulged the Chairman with his 
intercession a moment ago in my time, too. Just all I am 
looking for is a general percentage.
    Judge White. Oh, a percentage?
    Senator Kyl. Yes.
    Judge White. I would say maybe--Okay. I would say probably 
maybe about--including issues of general Federal constitutional 
law, I would say maybe about 10 to 15 percent of the cases that 
have come before me have raised Federal issues in that sense.
    Senator Kyl. All right. Thank you.
    Mr. Kethledge.
    Mr. Kethledge. Senator, I would say about 70 percent of my 
private practice has been State law. I would say, obviously, 
the 2 years I was clerking was all Federal, almost all.
    Senator Kyl. And Mr. Murphy.
    Mr. Murphy. Ninety-five to 99 percent of my work has been 
Federal, Senator Kyl.
    Senator Kyl. Okay. And, Judge White, you did not practice 
law, right? You have been on the bench your entire judicial 
career. Is that right?
    Judge White. That is correct. I spent 27 years on the 
    Chairman Leahy. Senator Kyl, I would note--
    Senator Kyl. Thank you, Mr. Chairman.
    Chairman Leahy. [continuing.]--Two things for the record. 
One, we had the hearing on your Arizona judge, I think last 
week. I think Senator Cardin--
    Senator Kyl. I am appreciative of that.
    Chairman Leahy. I did not want the impression to be that 
somehow he was not getting the hearing.
    Senator Kyl. No, no.
    Chairman Leahy. He did.
    Senator Kyl. The hearing was held. I appreciate it.
    Chairman Leahy. And, second, also for the record, I never 
had a speeding ticket. Had a couple of overtime parking 
tickets. Some overtime parking tickets, but never had a 
speeding ticket.
    Senator Sessions, and I am not asking members to say 
whether they have had speeding tickets or not. Senator 
Sessions, you are next.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. According to the list I received from 
Senator Specter.
    Senator Sessions. I did arrive after Senator Hatch, but--
    Chairman Leahy. I am sorry. I just realized that there is a 
crossout. It is Senator Hatch who is next. I apologize.
    Senator Sessions. I think that is correct, Mr. Chairman.
    Senator Hatch. I had no problem with that, but, Mr. 
Chairman, I see for the first time we have two appeals court 
nominees in the hearing. This is a step that I took at least 
ten times when I chaired the Committee during President 
Clinton's tenure. I would also say that for the first time one 
of these appeals court nominees is before us before the 
American Bar Association has completed its review. As my 
colleagues know, I have not been the ABA's biggest fan over the 
years, so I do not mention this because I think the ABA's 
evaluation and rating are necessarily the gold standard for 
judicial nominees. And I am pleased with the way the ABA has 
done its job over the last number of years. But others have 
said that it is the gold standard, and you have indicated that 
before this comes to the floor, you will certainly have the ABA 
    I also see the ABA has expressed its own serious concern 
about setting this precedent, and I recall this is inconsistent 
with what many of my Democratic colleagues have said it is the 
way they want to handle judicial nominees, at least when I was 
    Now, other appeals court nominees have completed all the 
normal procedural steps, and their consideration would set an 
unusual or inconsistent precedent. But here we are, so let me 
just ask a few questions of these nominees.
    Mr. Kethledge, I want to welcome you back to the Judiciary 
Committee. You served on this side of the dais as counsel to 
Senator Spence Abraham when I chaired the Committee, so you are 
no stranger to this room. And I am pleased with what you have 
done since leaving the Judiciary Committee, including your 
clerking for Justice Anthony Kennedy on the Supreme Court. That 
is a singular experience that deserves a lot of credit.
    And I see Judge Ralph Guy, whom you served as a law clerk, 
remains on the Sixth Circuit as a senior judge. It must be 
exciting to consider serving with him. I note, however, that he 
took his senior status at the end of your clerkship for him in 
1994. I am not sure what caused that.
    Mr. Kethledge. I tried to talk him out of it, Senator.
    Senator Hatch. Okay. Now, let me ask you to comment on what 
you believe to be the role of the Federal appellate courts in 
our overall system of Government within the judicial branch, 
and how carefully should the U.S. Court of Appeals tread giving 
deference to the trial courts below and respecting the rulings 
of the Supreme Court above?
    Mr. Kethledge. Well, Senator, obviously courts of appeals 
are bound by the decisions of the Supreme Court. They are for 
the most part bound by prior decisions of their own circuit 
    I think that the best judges are the ones that seek to 
apply precedent in good faith. I think most judges do that. But 
that is something that has to be done in good faith without 
skewing the precedent one way or the other. At the same time, 
there has to be a respect for the work of the district courts 
and not take an ivory tower approach to the review of what 
happens there. Those judges are the ones that see the people 
before them. They see the witnesses. The court of appeals just 
has a cold paper record. I think there has to be a reasonable 
level of deference given to the judgments of the Article III 
judge who has the trial before him.
    And with respect to all of one's colleagues in the judicial 
system, I think it is very important for a judge to have almost 
an irrebuttable presumption that every other judge who has 
looked at a particular issue was doing his or her best to 
discharge his or her oath just as well as I might be if I am 
fortunate enough to be confirmed.
    Senator Hatch. Thank you, sir.
    Judge White, you have served on the State appeals court for 
more than a dozen years, and I am sure that with all of that 
experience, you already have a perspective or at least a view 
about how a collegial body such as the appeals court should 
    Now, in reviewing your opinions, I see that you have 
written numerous separate opinions, both dissents and 
concurrences, and these include dissents in quite a few 
criminal cases, criminal law cases, and dissents taking 
positions that the Michigan Supreme Court has rejected.
    Now, would you please describe for us your view of whether 
an appellate court should strive for unanimity in its opinions 
and the purpose and effects of your frequent separate opinions?
    Judge White. Thank you, Senator Hatch. I want to preface my 
answer by saying again that in the 15 years that I have been on 
the Michigan Court of Appeals, I believe there were over 4,000 
cases in which I participated with my colleagues, and I would 
venture to say that probably in 95 percent of those, there was 
unanimity, and that is the context for this. And in the vast 
majority of those, the trial judge was affirmed.
    Collegiality is very important. One can disagree without 
being disagreeable. In the cases where I have written 
separately, I tried to decide cases narrowly. And there are 
times when I feel that a colleague says too much, and that may 
be a reason why I concur.
    Regarding dissents, there are sometimes differences of 
opinion, but as I said, in 95 percent of those cases, there was 
unanimity. I have been on the intermediate court for 15 years. 
It is a role with which I am very comfortable. I understand 
that the trial court is accorded deference, and I understand 
that it is the Supreme Court that makes the law. And that has 
been my job, and that would be--if I were to be confirmed, it 
would be a similar role in terms of deference to the trial 
judge and taking direction from the Supreme Court and, of 
course, from the legislative body.
    Senator Hatch. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Brownback.
    Senator Brownback. Thank you, Mr. Chairman.
    Chairman Leahy. And, again, to go through the list on my 
time, to go through the list I have Senators Brownback, 
Grassley, Senator Coburn, Senator Cornyn, and Senator Sessions.
    Senator Brownback.
    Senator Brownback. Thank you, Mr. Chairman. Thank you, 
nominees, for being in front of us. I appreciate that very 
    Judge White, I want to really, if I could, focus in on your 
nomination. I hope you can understand some of the grave 
concerns that many of us have on the rush nature of your 
nomination here and lack of information that we have. On 
looking at this, I would like to have had the information and 
hold the hearing and being able to question in depth about it. 
We don't have the ABA rating, but I understand you have been 
rated by the ABA when you were nominated by President Clinton. 
Is that correct?
    Judge White. Yes, sir.
    Senator Brownback. Do you recall what that rating was?
    Judge White. My understanding is that it was a substantial 
majority qualified and a minority not qualified.
    Senator Brownback. You have not conducted a private law 
practice. Is that correct?
    Judge White. That is correct.
    Senator Brownback. But you have worked in the judiciary all 
of your professional career.
    Judge White. That is correct.
    Senator Brownback. You started out clerking not at the 
Federal but you clerked at the State court. Is that correct?
    Judge White. That is correct.
    Senator Brownback. Who did you clerk for?
    Judge White. Justice Charles Levin.
    Senator Brownback. How long did you clerk for Judge Levin?
    Judge White. Almost 2 years.
    Senator Brownback. And then you went from that to the 
    Judge White. Yes, sir.
    Senator Brownback. Is that correct?
    Judge White. Yes.
    Senator Brownback. And you were appointed to the bench or 
elected to the bench?
    Judge White. I was elected.
    Senator Brownback. To which bench were you elected?
    Judge White. It was the Common Pleas Court for the city of 
Detroit. It no longer exists. There was court reorganization, 
and it became the 36th District Court.
    Senator Brownback. Okay. What did you do after that 
    Judge White. I was elected to the Wayne Circuit Court, 
which is the general trial jurisdiction court.
    Senator Brownback. And how long did you serve in that 
    Judge White. For 10 years, Senator.
    Senator Brownback. And what have you done after that 
    Judge White. Then I was elected to the Michigan Court of 
    Senator Brownback. And that is where you serve today?
    Judge White. Yes, sir.
    Senator Brownback. And how long have you served on that 
court of appeals?
    Judge White. For 15 years.
    Senator Brownback. You were nominated by President Clinton. 
When were you nominated by President Clinton?
    Judge White. I believe it was January of 1997.
    Senator Brownback. Okay. And so you have just recently been 
nominated by President Bush. Is that correct?
    Judge White. Yes, sir.
    Senator Brownback. I think you answered with Senator Kyl 
your experience in handling Federal cases. You have not handled 
direct Federal cases in any private practice?
    Judge White. No, sir.
    Senator Brownback. You have not handled any Federal cases 
as a judge?
    Judge White. No, sir.
    Senator Brownback. I am curious then. I should give you 
this as open because we haven't had a chance to meet privately, 
either, which normally would be the process. But what do you 
believe makes you qualified for this position? This is the 
Sixth Circuit. The circuit court of appeals is next to the 
Supreme Court. It is a phenomenal position of importance. I 
would like to hear your thoughts on your qualifications as you 
look having not handled Federal cases before for this position.
    Judge White. Let me start by saying that I agree with you, 
it is a position of enormous importance. My professional path 
has been in the judiciary, and this is what I would bring to 
the position. I was in a limited jurisdiction court for 2 
years. After that, I moved to the general jurisdiction court. I 
brought with me the experience of that position. What I brought 
to the court of appeals was the experience of being a trial 
judge for 10 years.
    There is something in the process of judging that--judges 
are generalists. It has been a long time since I have been in 
law school. It has been a long time since most judges were in 
law school. We learn skills on the bench. We learn how to 
approach the task of judging, which is to decide individual 
cases. I brought that experience of being a trial court judge, 
which I think is very valuable for an appellate judge, to the 
appellate court.
    If I am confirmed, what I would bring to this is 27 years 
of judicial experience in terms of the process. I bring the 
experience of reading briefs, reading briefs in an area of law 
with which I may not yet be familiar, because that is the 
nature of litigation. The lawyers are far more expert at the 
time that the case begins than the judge. The experience of 
studying those briefs, the experience and the ability to 
understand difficult legal issues, to thoughtfully consider 
them, to understand the arguments of both sides, to respect the 
importance of the position, to distill the legal arguments, 
address the issue in written manner, to carefully decide the 
case, going through the process of deference to the precedents, 
understanding how to treat legislation, and basically how one 
comes to a decision in a particular case that is presented to 
the judge.
    Senator Brownback. Thank you.
    Chairman Leahy. Senator Sessions.
    Senator Sessions. Mr. Chairman, I would offer for the 
record a letter of May 6th from the Standing Committee on the 
Federal Judiciary, Mr. Timothy Hopkins, Chair, to you and 
Senator Specter, although it is pretty clear Senator Specter 
agrees with it. Mr. Hopkins says, ``On behalf of the American 
Bar Association's Standing Committee on the Federal Judiciary, 
I write to express our concern that you have decided to proceed 
with the confirmation hearings of Helene White to be United 
States Circuit Judge for the Sixth Circuit and Stephen Joseph 
Murphy III before completion of the evaluations. Under our 
normal timetable, it would be reasonable for you to expect to 
receive our evaluations by the close of this month. It is 
unfortunate that during confirmation hearings your Committee 
members will not have the benefit of the answers.''
    Chairman Leahy. Without objection, that letter will be 
included in the record. Also without objection, my response 
would be included in the record. And without objection, the 
similar letter written by the ABA to then-Chairman Specter 
objecting to the five hearings without the ABA being completed 
will be included in the record so that we can have it all 
before us. And I thank the Senator for raising the issue. It 
gave me a chance to put the other letters in.
    Senator Sessions. I would just observe that that letter is 
indicative of the fact that this is an extraordinarily fast-
moving nomination. Of that I think there is little doubt. And 
there are questions that we have, and I for one do not believe 
this hearing, with just a day or two notice, basically, to me, 
allows us to be properly prepared to ask the kind of questions 
that ought to be asked of a position one step below the U.S. 
Supreme Court.
    I would note that we could have had hearings on Judge 
Conrad of North Carolina who has been unanimously rated well 
qualified by the ABA, the chief judge of the Western District 
of North Carolina, a Federal prosecutor under both Republican 
and Democratic administrations, and it is a judicial emergency 
circuit. And Mr. Steve Matthews of South Carolina, nomination 
to the Fourth Circuit, graduate of Yale, distinguished private 
practice career, managing director of a South Carolina law 
firm, strongly supported by both his State Senators and rated 
highly qualified by the ABA also. So this is troubling to me, I 
have just got to tell you.
    No. 2, Judge White, I presume you misspoke, but let me ask 
you. You said a moment ago the Supreme Court makes the laws. 
What would you say about that?
    Judge White. The Congress makes the laws in the Federal 
system, and the legislature passes the laws. If I said that, I 
misspoke, and I was referring to the common law. And if I said 
``laws,'' I would have misspoke and would not have meant to 
refer to legislative laws.
    Senator Sessions. Well, I think that is very important 
because one of the things that is causing the delays and 
tension in the confirmation process at its most fundamental 
level is more than politics and more than numbers. It is really 
about what kind of judges we want on the courts.
    President Bush has a philosophy of judging that I share. I 
think it was ably articulated by Chief Justice John Roberts in 
his confirmation hearings. And there are others in this 
Congress that have different views. They prefer to have judges 
in rulings that affect their political agenda that cannot be 
won at the ballot box, in my view. So I just want to tell you 
that is a concern to me.
    Judge White, your entire legal career of almost 30 years 
has been in the Michigan State system. I think I am correct 
that you have never spent a single day of your legal career in 
private practice, except maybe a summer internship. And you 
have never represented a client, never litigated a case, and 
never appeared in Federal court at all. Is that correct?
    Judge White. That is correct.
    Senator Sessions. Now, I believe that that is not an 
automatically disqualifying thing, but I think it is a lack 
that is worthy of concern on the confirming body to analyze 
what other strengths you have to justify the appointment 
without the kind of experience we would normally expect in this 
high appointment, which is, as I said, one step below the U.S. 
Supreme Court.
    Mr. Chairman, my time has expired. I would share with you, 
Ms. White, my concern about this aiding and abetting case that 
Senator Specter asked you about in the sense that to me that is 
fundamental law that if you drive the car to assist the people 
in a crime, you are chargeable for that offense. And in your 
own opinion, you concluded that the defendant knew what was 
about to occur and aided in the action by delivering them to 
the scene of the crime.
    Chairman Leahy. Thank you, Senator Sessions.
    Judge White--
    Senator Sessions. She was prepared to answer, but that is 
Okay. She has answered it previously.
    Chairman Leahy. Earlier--
    Senator Sessions. It is a concern to me as a prosecutor.
    Chairman Leahy. Earlier you had said something about the 
percentage of cases, the rough percentage of cases where you 
have been in concurrence with the rest of the court. 
Approximately what percentage are you in concurrence with them?
    Judge White. Well, I would say that probably 95 percent of 
the cases are decided unanimously, would be my guess.
    Chairman Leahy. And, Mr. Kethledge, you don't have any 
experience--I mean, we speak about experience. You have no 
experience managing a docket as a judge. You have not worked in 
a prosecutor's office or a defender's office where you would 
have had to manage a very high volume of cases. What do you say 
about being able to successfully manage the docket of a United 
States circuit judge? You have not had judicial experience like 
Judge White has in managing dockets, but what would you say 
about that?
    Mr. Kethledge. That is true, Mr. Chairman. What I would say 
in response to that is two things:
    First, hard work. A court of appeals judge from my 
observation and clerking has some latitude as far as when 
things are due. You do not have briefing deadlines the way you 
do in private practice. And it is the conscientiousness of the 
judge, I believe first and foremost, which is responsible for 
moving the cases along and clearing the docket at the court of 
    The other thing I would say is just the example I have had 
of the judge that I worked for, and I was part of his system. I 
got a sense of how things work, and I think I could make use of 
that experience as well.
    Chairman Leahy. Thank you.
    The question I was going to ask you before, Mr. Murphy, I 
served on this Committee for decades with former Senator Strom 
Thurmond. And there is a question I heard him ask, whether it 
was nominees of Democratic administrations or Republican 
administrations, that was always the same about judicial 
temperament. And it was basically something like this: When you 
go into a Federal court, a Federal judge is very powerful. It 
is a lifetime position. The only way he is going to be out of 
there is if he is impeached or resigns. And very few are ever 
impeached. And if he shows bias one way or the other toward 
plaintiffs or defendants or based on the nature of the case, it 
is devastating to the person who may--this may be the only time 
in their life they will be before the Federal court. We all 
have a responsibility to keep the Federal courts independent, 
but also to have the respect of them. Courts do not command 
armies. They do not command great forces. They exist and 
command respect only if they show respect.
    How do you feel about that? There are times when you have 
some people who attack Federal courts as being out of touch for 
whatever political purpose. You have people running for office 
and so on. What would you do so people would look and say, you 
know, ``One thing about Judge Murphy, I may agree or disagree 
with his opinions, but, boy, I sure agree that he is a good 
judge'' ?
    Mr. Murphy. I would first of all thank the Senator for that 
comment, endorse the sentiments of both the Chair and Senator 
Thurmond. I would hope that however many years from now, should 
I be confirmed, that that sort of evaluation was made, that 
that would be exactly what they would say about me. I have 
striven to have that reputation as a Federal prosecutor, and I 
think that neutrality, detachment, fairness, and moderation are 
the hallmarks of a Federal judge. And should I be confirmed by 
this Committee, those are the traits that I would demonstrate 
in my daily work.
    Chairman Leahy. Thank you. Let me ask this question of both 
Judge White and Mr. Kethledge. We are at the sort of pivotal 
moment in American history of trying to keep that careful 
balance between the branches of Government. The President has 
made unprecedented claims of nearly unchecked Executive powers. 
Congress and the courts have traditionally acted as curbs on 
any President who might do that, whether it is cases like Iran-
contra or warrantless spying on American citizens. But we 
should also have a self-check on abuse of the congressional 
power, looking at ethical violations or corruption, for 
example, Jack Abramoff's influence of a Member of Congress.
    Do you believe that congressional oversight, not just 
judicial but congressional oversight, is an important means of 
creating accountability in all branches of Government? We will 
start with you, Mr. Kethledge. You have been here. You 
understand the question.
    Mr. Kethledge. I do understand the question, Senator. I 
don't think I am knowledgeable to answer it, frankly, in a 
specific way. What I would say is that each branch is co-equal. 
Congress clearly has powers of oversight. Those powers are 
important ones, just like other powers that Congress has. Some 
of those oversight powers are derived from the power of the 
purse that Congress has ultimately.
    Certainly, Senator, I would agree that those are important 
powers, safeguards on Congress' other core powers.
    Chairman Leahy. Judge White.
    Judge White. I would agree. The powers of each branch of 
Government are important and must be respected by the other 
    Chairman Leahy. I would agree, I think all of us would 
agree, there have to be these checks and balances. Our Nation 
is powerful. It is awesome in its power and its potential as 
the United States.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Judge White, I now turn to a case captioned People v. 
Hansford, decided in 1997. You served on a three-judge panel 
which decided that a 40- to 60-year term was inappropriate and 
remanded for resentencing. And my question goes to your 
judgment in disagreeing with that sentence for the defendant 
who has a record that I am about to specify.
    On October 11, 1976, he was convicted of attempted larceny 
from a building and sentenced to 2 years' probation.
    June 14, 1977, convicted of attempted receiving and 
concealing $100 and sentenced to 1 to 5, did 2\1/2\ years in 
    Two months later, August 22, 1977, convicted of attempted 
larceny from a motor vehicle, sentenced 1\1/2\ to 2\1/2\.
    September 4, 1980, convicted of fleeing and eluding, 
sentenced to a fine of $185 or 19 days.
    Convicted of receiving and concealing stolen property and 
sentenced to 6 months, March 26, 1981.
    August 3, 1982, convicted of two counts of receiving and 
concealing stolen property, over $100, sentenced to 3 years' 
probation on April 15, 1985.
    November 5, 1985, convicted of a violation of probation, 
sentenced to 90 days in jail.
    July 17, 1988, convicted of larceny, 3 to 7 years.
    Escaped from correction center, July 1990, returned 
February 1991. Paroled on March 31, 1992, listed as an 
absconder on July 9, 1992. Still on parole when he committed 
the instant offense.
    Now, the procedural history of this case is that on initial 
review, the court of appeals determined that the sentence of 40 
to 60 years for a fourth offender was disproportionate. On 
remand, the Supreme Court ordered reconsideration in light of a 
recently decided case. The court of appeals on which you sat, 
another judge determined the sentence constituted an abuse of 
discretion. The Supreme Court reversed saying there was not an 
abuse of discretion, two Justices dissenting, concluding that 
because the defendant had demonstrated his inability to conform 
his conduct to the laws of society, the court's sentence was 
not an abuse of discretion.
    Now, the first opinion, which was unanimous, by your court 
that it was an abuse of discretion was unpublished. I am 
advised by staff that there was an opinion. What are the 
standards for publishing an opinion? It seems to me pretty 
important for the public to know why that sentence was vacated, 
and the public only knows it if there is a published opinion. 
What are the standards of that court for not publishing an 
opinion so the public knows what is happening?
    Judge White. Senator Specter, we are an intermediate 
appellate court with a very, very heavy volume. The vast 
majority, more than the majority of our cases are unpublished. 
The criteria for publication is that it--
    Senator Specter. The vast majority unpublished, even a 
matter of this severity, this kind of a record, to send 
somebody back for resentencing?
    Judge White. Senator, every single case is important. I 
don't intend to minimize any type of case, but--
    Senator Specter. Well, Judge White, some cases are--
    Chairman Leahy. I think you should at least let her answer 
the question.
    Senator Specter. Well, I think you should let me question.
    Chairman Leahy. Let her answer the question.
    Senator Specter. We have considerable latitude, at least 
when I was Chairman--
    Chairman Leahy. And you always used to remind us to let the 
witness answer the question.
    Judge White. Given the volume of the cases--
    Senator Specter. If you are going to answer, try to be 
    Judge White. I am sorry, sir. I have been trying--
    Senator Specter. My question to you was: Aren't some cases 
more important than others?
    Judge White. Yes, some cases are more significant 
jurisprudentially than others, and our directive is that those 
are the cases that should be published. We have many, many, 
many sentence appeals. We have judicial--we have guidelines. At 
one point they were legislative--they were judicial sentencing 
guidelines. Now there are legislative guidelines. We have many 
sentence appeals, and it would be the most, most rare 
circumstance that a case, even one reversed, would ever be 
published under these circumstances. That is not the practice 
of the court.
    Senator Specter. Okay, Judge White. Now down to the merits. 
I read you this record in detail. The habitual offender 
statutes are designed, as I am sure you know, to take habitual 
offenders off the streets for life. There are customarily three 
offenses. Seventy percent of the crimes are committed by 
habitual offenders.
    What was your reasoning and thinking that a man with the 
record I just enumerated did not deserve to be off the streets 
for life?
    Judge White. Senator Specter, crime is a terrible problem 
in this society, and everybody should recognize that. And 
sentencing is a solemn obligation.
    I don't have the facts specifically in front of me. I don't 
even know what year it is. But I can tell you that the case was 
either decided under the judicial guidelines or the legislative 
guidelines. And there is a guideline within which a judge must 
sentence. If the judge doesn't sentence within that guideline, 
then that sentence is subject to review.
    Chairman Leahy. Thank you.
    Senator Cardin.
    Senator Specter. One more. One more minute, Mr. Chairman.
    Chairman Leahy. I will give you as a matter of courtesy one 
more minute. You are now over your time.
    Senator Specter. I told you what the year was. It was 1997. 
And I told you what the facts were. Two-part question. Are you 
saying that it was outside--you weren't saying it was outside 
the sentencing guidelines because the State Supreme Court said 
40 to 60 was fine.
    Now, as you listened to the recitation of these facts, 
which come from the Supreme Court's opinion, are you standing 
by the judgment you made twice that a 40- to 60-year sentence 
was inappropriate for this career criminal?
    Judge White. I want to say first that I don't know from the 
facts that you gave me whether it was within the guidelines or 
not. It may have been outside of the guidelines and, 
nevertheless, affirmed. I accept the Supreme Court's decision, 
and that is the final decision in the matter. And I accept that 
the sentence was appropriate, and it was appropriate because 
the Supreme Court has said it is appropriate. And I said that.
    Senator Specter. The pending question is whether you today 
say that you were right, listening to this record, in saying 
the sentence was inappropriate.
    Judge White. What I would say is that I read the case, 
applied the law as I understood it, and the sentence was 
appropriate. The Supreme Court said it was appropriate, and the 
panel and I were wrong.
    Senator Specter. Let me ask you one more time if you think 
sitting here today, listening to this record, that you were 
right in saying that 40 to 60 years was an inappropriate 
    Judge White. At the time I decided the case, the--I have to 
have been wrong, sir. The Supreme Court reversed. I was wrong. 
The Supreme Court reversed. There are times when an appellate 
judge is reversed. There are times when a circuit judge is 
reversed. And once you are reversed, there is no question 
whether you were right or wrong. The higher court said you were 
    Senator Specter. I think the record is clear you have not 
answered the question.
    Chairman Leahy. Well, I disagree, and I gave the Senator a 
great deal of extra time so she could. Any one of us who 
practice law or who have been prosecutors have been reversed. 
We know what that is like.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman, and let me first 
make an observation. I am a new member of this Committee, and I 
was looking forward to getting involved particularly in one of 
the most important responsibilities of the U.S. Senate, and 
that is the confirmation of judges to lifetime appointments. 
And I take the confirmation hearings very seriously, which is 
part of a total process on confirmation, including your records 
that we have and the reports that have been made available to 
us. And my observation is that I want to compliment all three 
of you for the manner in which you have responded to our 
Committee's questions. I am impressed by all of your--the way 
that you have answered the questions.
    Judge White, I just can't imagine what is going through 
your mind as you hear us talk about rushing your nomination 
through when you waited 4 years since your last appointment. 
You have shown tremendous restraint, which I think bodes well 
for your judicial temperament.
    Mr. Kethledge, I want to follow up on Senator Brownback's 
point on qualifications, because I think it is a very important 
point, and I think he raises a very valid point about Federal 
experience. I don't disagree. I think that is a very important 
point for us to evaluate.
    The difficulty I have had with some of the more recent 
appointments from President Bush is that he has selected 
individuals who don't have a judicial background, so, 
therefore, you don't have the traditional cases in which we can 
question as to how you ruled on a particular case, which is 
very interesting to see how you went about making decisions. Or 
we don't have a lot of writings in which we can look at the way 
that you evaluated a particular legal issue because of your 
background. Instead, you come to this appointment with a 
relatively short background in law, and if I have read your 
background correctly, it has been mostly as a private attorney 
handling product liability issues for companies such as auto 
manufacturers, drug manufacturers, and in at least one case a 
tobacco company.
    And I guess my question to you is, you know, we all come to 
this with life experiences to whatever we do in our future in 
life. And I want to give you a chance to express your views as 
to how you would rule on these types of matters that may come 
before you, including product liability and consumer rights. 
You have represented the company point of view. There is 
obviously another point of view, the consumer point of view, as 
represented in some of these cases. And I just want the record 
to be clear as to how you will approach matters that may be 
brought by individuals looking at rights for non-smokers, 
looking for rights for consumers, recognizing that product 
liability issues are important ways of defending those types of 
    Mr. Kethledge. Thank you, Senator. I understand really two 
questions to be part of what you are asking, the first being 
what kind of approach would I take, because I agree, you don't 
have the kind of written record to review that Judge White has 
provided. I don't have that kind of judicial experience, and I 
admit that. So the question of what approach would you take is 
an important one.
    First and foremost, Senator, I think the approach I would 
take recognizes the fact that, in my opinion, the fact that 
judges are unelected I think is really the defining 
characteristic of Article III judges and the characteristic 
that circumscribes their power. We are a democracy. Nobody 
elects Article III judges. I think that means that Article III 
judges don't get to impose their policy views, their opinions 
on the people of this country because that is not democracy. 
The folks in this body do, and it is the job of Article III 
judges to enforce your will, not the will of the judges 
themselves. I feel very passionate about that, and I tell you 
that, to the extent of my ability, that is what I would do if I 
were a judge.
    Regarding experience, I have been out of school 15 years, 
and I recognize that is a relatively brief time. I am over 40 
now, and I actually celebrated that birthday anticipating this 
question perhaps. I would hope that I have tried to pack an 
awful lot of relevant experience into my 15 years:
    Clerking for Judge Guy on the court to which I am 
nominated. He is someone whom I revere, whose example I think 
would be of indescribable benefit to me if I were to be a 
    Clerking for Anthony Kennedy, a man who comes to his job 
with extraordinary dedication and conscientiousness, and who is 
also a kind and decent man. Those examples would be very 
helpful to me.
    I had the privilege of working in this institution, 
oftentimes in this room--
    Senator Cardin. That worries us a little bit.
    Mr. Kethledge. I really better not say anything about that, 
    But I think that that experience gives me the perspective 
of the legislative branch and being inside the legislative 
branch. A number of the Senators today have talked about 
separation of powers issues. I think that experience, that 
perspective, would be extremely valuable.
    And then I have been a lawyer in private practice. I have 
seen the impact that these cases can have on the parties and 
individuals that are involved. Yes, I have had corporate 
clients, but not all of my clients have been corporate clients. 
I understand that these are not abstractions that are behind 
these cases. These are people. And I respect that, and I would 
have a sensitivity to that.
    The other thing I would point out is that I have had the 
experience of starting my own law firm with two partners and, 
shortly thereafter, three. There were 15 people that chose to 
come with us. We were responsible in a large sense for their 
economic well-being. That was a responsibility I took very 
seriously, and, frankly, I think that was an experience that 
makes one grow up.
    So I would hope that those things that I would draw on 
would allow me to be a judge that would do the job in the way 
the Committee would hope.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Brownback, did you have any other questions?
    Senator Brownback. Yes, I do, Mr. Chairman. Thank you. And 
thank you for allowing us to go another round. There are 
individuals here who get a chance to question the first time.
    Ms. White, I want to go back--Judge White--and ask you a 
few other things, if I could, and this is, I think, 
uncomfortable for everybody, just the way this has come 
forward, so I apologize for that. But they are things we really 
need to know.
    Just without the Federal work, I would just like to know 
your view of the Constitution, just to--I know you cannot tell 
us how you decide individual cases, but do you see generally 
the Constitution as a more organic document, or do you see it 
more as a strict constructionist, or do you put yourself 
somewhere in between?
    Judge White. Senator Brownback, I have never placed labels 
on my judicial philosophy. I have never thought of it in those 
terms. I decide individual cases, and when the Constitution is 
implicated, I look to the precedent, and I find my way within 
the precedent that has been given. And I don't take a 
particular role. My role as a judge--my role is to be a judge 
in that case, and that is the way I approach it.
    Senator Brownback. Then what do you understand this current 
state of the law to be on Establishment Clause cases?
    Judge White. Senator Brownback, in my 27 years I have not 
had Establishment Clause cases--well, I must have had some. I 
haven't had it recently.
    Senator Brownback. I understand that, but you are going 
onto the Sixth Circuit Court of Appeals. This is a big area of 
the law. I am just asking you your understanding of the current 
status of the law in Establishment Clause cases.
    Judge White. I am--I haven't read the cases recently enough 
to be comfortable giving you an answer, and if a case came 
before me, then I--if I were confirmed and a case came before 
me, then I would be an expert in all of the Supreme Court 
decisions to date.
    Senator Brownback. Judge White, the Chairman brought up--
and I thought this was appropriate to ask about--case 
management, saying that another nominee had not been a judge so 
does not know about case management. But you have been on the 
bench, and you have dealt with case management. The Sixth 
Circuit is one of the busiest per judges' cases, caseloads, so 
this will be very important. Have you ever thought you have had 
problems managing your cases or issuing your opinions in a 
timely fashion?
    Judge White. When I first became a court of appeals judge, 
I had a period of adjustment in the sense that it is an 
extremely heavy docket, and I had to learn that although I gave 
each case careful consideration, I couldn't write the way one 
would normally want to write in each case. And that was a 
process where I came to understand that. It took a while, and 
the 15 years have been very valuable.
    I think that if one thinks about the important traits in an 
appellate court judge, timeliness is certainly one of them, and 
I try to balance timeliness with considered judgment, with 
scholarship, giving each case attention. I try to put all of 
that together, and that is the way that I manage my docket.
    Senator Brownback. So I take it from what you are telling 
me, you have had a problem in this, but you feel like you have 
grown over the years in this area?
    Judge White. Yes, I would say when I first went on the 
bench, I did have a problem with that. It is something that one 
learns in the 15 years.
    Senator Brownback. Mr. Kethledge, just in a short period of 
time, I would be curious about your view of the Constitution, 
whether you see it as--just as your overall view, as a living 
document or as a strict constructionist. Do you have a view on 
    Mr. Kethledge. Senator, I don't really have a label that I 
can put on myself. What I would say is that, obviously, first 
and foremost I would follow Supreme Court precedent.
    The other thing I would say is that, again, I would make 
sure that the values that I would be enforcing if I were a 
judge are not just my values, that I am not striking something 
down simply because I don't like it. That is a 
countermajoritarian aspect of our system of Government. I would 
start with the text. I would say that, sir.
    Senator Brownback. And I would just, with that answer, 
because we are apparently not going to be able to understand 
further--although clerking for the people that you did gives us 
some opinion on your idea. But what do you understand the 
current state of the law to be on Establishment Clause cases?
    Mr. Kethledge. Senator, I would have to give pretty much 
the answer Judge White did. That is not an area that I have 
recent experience in in my practice. If I were presented with 
an issue along those lines, obviously I would carefully study 
Supreme Court and other applicable precedent. I believe that is 
where the Lemon v. Kurtzman case comes in, but I could be 
getting the wrong clause, and that is why I shy away from being 
too definitive in this regard.
    Senator Brownback. Have you handled any Establishment 
Clause cases? If I could on this, Mr. Chairman.
    Chairman Leahy. Yes, take one more minute. The reason is we 
were going to end this round, but Senator Specter has asked to 
be able to go until about 12:20, 12:25. And I want to make an 
exception to the time so that he can. He is a highly respected, 
knowledgeable person here. We will do it. But if you could 
finish with whatever this question is, Senator Brownback.
    Senator Brownback. Have you handled any Establishment 
Clause cases in any of your clerkships or any of the work that 
you have done?
    Mr. Kethledge. Senator, I cannot remember offhand whether 
the courts that I worked on had any Establishment Clause cases 
while I was there. There isn't one that comes to mind. I have 
not handled that issue in my private practice. It is simply not 
possible to handle every issue that might arise under the 
Constitution in one's practice.
    I will say that that is obviously a very important issue 
where some of the most deeply held views of our citizens come 
into play, and I would take that very seriously.
    Chairman Leahy. Thank you very much. And, of course, the 
record will be kept open for followup questions.
    Senator Brownback. I appreciate that. I am going to, as the 
appropriate time, move that we go into closed session, Mr. 
Chairman. I would like us to be able to do that.
    Chairman Leahy. If you move that, then we will have to come 
back later today to do that so we can accommodate Senator 
Specter now.
    Senator Brownback. I just wanted to put you on notice of 
that, Chairman.
    Senator Specter. Judge White, we have a very limited time. 
I am trying to accommodate to the Chairman's schedule. So if 
you could answer my questions briefly and directly, I would 
appreciate it.
    In a case captioned People v. Ryan, which there is a 
Supreme Court opinion in 1996, you were one of a three- person 
panel where you affirmed the dismissal of a drug dealer's 
conviction. The Supreme Court reversed you. Your description of 
the case is as follows:
    Defendant was arrested with a kilogram of cocaine by 
Federal agents, but was charged and convicted in State court 
after DEA agents turned over their file to the State. Defendant 
argued the decision to pursue a State prosecution was 
vindictive. A panel of the court of appeals where you were not 
a member concluded that the case was vindictive and remanded 
for an evidentiary hearing. In an evidentiary hearing, the 
trial court found vindictive conduct. On appeal, you were a 
member, finding that the trial court's findings were not 
clearly erroneous and affirmed.
    The State Supreme Court said that, ``The mere threat to 
refer the case for State prosecution does not amount to 
objective evidence of hostile motive.''
    Do you think that you were correct in deciding that the 
evidence was sufficient for a finding of vindictiveness when 
all that happened was for the Federal DEA authorities to do was 
to turn the matter over to State prosecutors, which is a very 
commonplace practice?
    Judge White. Again, Senator, my familiarity, my 
recollection is refreshed by what you have said, by only by 
what you have said. I cannot say that those were the only facts 
involved. I can say that the prior panel found that there might 
be vindictiveness, that there was, sent it back. We had a 
hearing. I applied the law in terms of review, deference to be 
made to a trial court, concluded that it wasn't an abuse of 
discretion for the trial court to so find, and that was the 
extent of my participation.
    Again, the Supreme Court reversed, and because the Supreme 
Court reversed, it meant that I, among others, got it wrong.
    Senator Specter. Do you stand by your judgment today that 
you rendered at the time? That is my question, again.
    Judge White. The Supreme Court said I was wrong. I stand by 
the Supreme Court.
    Senator Specter. Well, let the record show again you 
haven't answered the question.
    In a 1996 case captioned People v. Thomas, the panel issued 
the decision--you were a member the panel--reversing a 
conviction of a gang member who was charged with second-degree 
murder and found guilty by a jury of voluntary manslaughter, 
carrying a concealed weapon, and felony firearm. The panel 
opinion reversed the conviction saying that the gang member's 
assertion was correct, being denied a fair trial because the 
prosecution called a witness knowing the witness would refuse 
to testify. Your panel based its opinion on the violation of 
the defendant's confrontation right. But, of course, when the 
witness didn't testify, there was no opportunity for 
    The Supreme Court of the State reversed your panel's 
opinion saying that there was no constitutional error, found 
evidentiary error but harmless error.
    Judge White. Can you repeat that? I am sorry. I didn't hear 
the last sentence.
    Senator Specter. The Supreme Court found there was 
evidentiary error, but the error was harmless because the State 
had ``proved that it was highly probable that the errors did 
not contribute to the verdict.''
    Question: Do you stand by the judgment you made at that 
    Judge White. Well, apparently the decision on the 
evidentiary and constitutional issue was determined to be 
correct, but the harmless error analysis was determined to be 
erroneous. So, again, I would stand with the Supreme Court and 
conclude that my analysis on the constitutional and evidentiary 
issue was correct, and the panel, of which I was one, our 
conclusion regarding the harmless error was erroneous.
    Senator Specter. The Supreme Court concluded your panel was 
wrong. They reversed you, for the reason I stated, on harmless 
error. Now, my question to you is: Do you stand by the judgment 
that you made at that time?
    Judge White. No, sir. Again, I stand by the judgment of the 
Supreme Court.
    Senator Specter. You think the Supreme Court was right? I 
am still trying to get an answer.
    Judge White. The issue--
    Senator Specter. I know the Supreme Court has the final 
    Judge White. They do, sir.
    Senator Specter. They are not necessary correct. I am just 
asking you for your judgment. I am trying to evaluate your 
judgment. Do you think you were right in the judgment--you were 
part of the panel--or that the Supreme Court was right in 
reversing for the reasons I have gone into?
    Judge White. Sir, I thought I was right at the time I made 
the decision, and I accept the conclusion of the Supreme Court.
    Senator Specter. Okay. Same answer, same conclusion. The 
question hasn't been answered.
    Judge White, would you care to amplify in any way your 
record in handling criminal appeals? Because on the basis of 
the cases that I have cited--and we are under very tight time 
constraints--I would like to go into a lot more of your cases, 
very frankly. But I haven't had time to read all your cases, 
and I am a fast reader, but there have only been a few days. So 
I want to give you an opportunity to comment or explain your 
attitude toward appellate work on criminal cases. Are these 
cases that I cited characteristic of your work on the bench?
    Judge White. Thank you for the opportunity to address my 
record on criminal cases. As I said, there are over 4,300 
cases. I would say that over--probably about 60 percent of them 
are criminal. I would have affirmed in maybe 98 percent of the 
    There is an appellate system applying both to criminal and 
civil cases. When a case comes before me, I apply the law as 
stated by the Supreme Court. In each of those cases, I endeavor 
to do so.
    I am also confident in saying that both prosecutors and 
defense lawyers regard me as being fair and impartial. I think 
that lawyers on both sides are pleased to come into the 
courtroom when I am on the panel, and that in each of these 
cases, even the prosecutor would have thought that there was a 
reasonable basis. And as in some of these cases, my colleagues 
shared my opinion.
    The bottom line is in most cases, 98 percent of the cases, 
convictions are affirmed. Part of my duty as an intermediate 
appellate judge is to be open to the possibility that there was 
error below. And I take criminal cases very seriously. I take 
the rights of citizens to be free of crime very seriously. I 
also take the rights of defendants seriously, and I have 
decided each one of those cases to the best of my ability.
    Senator Specter. Now, Judge White, Senator Brownback asked 
you about the Establishment Clause, and you said you hadn't had 
any experience with it. Have you had any experience with the 
Free Exercise Clause of the First Amendment, freedom of 
    Judge White. Let me say I recognize that the Establishment 
Clause and the Free Exercise Clause are parts of the First 
Amendment. I understand that in many respects they are two 
sides of the same coin and that from time to time cases come to 
the court--
    Senator Specter. Have you had any cases on these issues or 
any experience as a lawyer?
    Judge White. Okay. I don't recall specific cases on either 
of those clauses. That doesn't mean I haven't had them. I just 
don't recall them.
    Senator Specter. Have you had any experience on the issues 
of freedom of speech, assembly, freedom of the press?
    Judge White. I have had some cases implicating the press, 
mostly under our State FOIA statute, Freedom of Information 
statute. Maybe in terms of the press in the courtroom, it has 
come up in that context.
    Senator Specter. Have you had any experience on holding 
reporters in contempt, a contentious issue?
    Judge White. I have not had them directly, no.
    Senator Specter. Have you had any experience on the 
attorney-client privilege, now a contentious issue, where the 
Federal Government is extracting waivers or tougher sentences 
and tougher charges?
    Judge White. We--
    Senator Specter. Have you had experience in that field?
    Judge White. I am sorry to interrupt. I have had cases 
dealing with the attorney-client privilege, not in that 
context, but certainly attorney-client privilege issues have 
come before me.
    Senator Specter. Have you had any experience in the issue 
of Executive power? The Sixth Circuit had the appeal coming out 
of the Detroit United States District Court for the Terrorist 
Surveillance Program which constituted an analysis of the 
Foreign Intelligence Surveillance Act. Are you familiar with 
the Foreign Intelligence Surveillance Act?
    Judge White. Only to the extent that any citizen would be. 
I haven't had any Federal Executive power cases. I have had 
State Executive power cases. I understand the importance of 
these issues and would address them accordingly.
    Senator Specter. Have you had any experience with the cases 
now pending in the Federal court seeking to grant retroactive 
immunity to the telephone companies? Any experience with issues 
like that?
    Judge White. I don't recall cases that would be directly on 
point with immunity for telephone companies. No, sir.
    Senator Specter. Have you had any experience with the state 
secrets doctrine?
    Judge White. It wouldn't be something that would come to 
the State court system, no.
    Senator Specter. Well, let me ask you--let me give you an 
opportunity to respond, pretty much the same question Senator 
Brownback asked. With no experience in these areas, on these 
front-line issues--the Sixth Circuit just had the Terrorist 
Surveillance Program--what are your qualifications to sit on 
the court of appeals for the Sixth Circuit, finality of 
decision short of the Supreme Court?
    Judge White. At the risk of being redundant, there are 
elements that go into being a judge. One is knowledge of the 
subject matter. The other is the process of deciding cases. I 
venture to say--and I could be wrong--that there are judges on 
the Sixth Circuit now who have not had cases dealing with some 
of the issues that--
    Senator Specter. Do you think that ought to be considered 
by the Senate in whether to confirm you or not? These other 
judges you allude--these other unnamed, unspecified judges you 
allude to, do you think we ought to consider that in evaluating 
your qualifications?
    Judge White. I didn't mean to be speaking--I would say that 
they are qualified in the same way that I am qualified because 
you are in the job of addressing these issues every day as 
Members of the Congress. As judges, whether it is in the State 
or the Federal system, judges decide cases, individual cases, 
and they become expert in the subject matter through the case. 
As one has been on a particular court for a length of time, one 
becomes more familiar with certain types of cases. But there is 
always a first time with any subject matter, and the question 
is how the judge approaches it and whether the judge thoroughly 
familiarizes him- or herself with the law and whether the judge 
is familiar with the general principles of judging.
    Senator Specter. Judge White, I am going to finish up with 
you in the next 2 minutes, by 12:25, as the Chairman has 
requested. And I am going to reserve some questions for the 
closed sessions, which Senator Brownback has already mentioned, 
which I think we do need. But I want to pick up on two things 
you testified to.
    You said in your earlier testimony, I quoted you, that 
sometimes your taxes were ``insufficient.'' Could you amplify 
that, please?
    Judge White. When I pay my taxes, which is something that I 
am proud to do, I do not compute my taxes. I give all of my 
information to an accountant. That happened--
    Senator Specter. Did you ever get a bill that you didn't 
pay for a protracted period of time, a tax bill?
    Judge White. Senator, I think I know what you are referring 
to. This past year, I got a notice that the amount that I had 
sent in apparently wasn't sufficient. I sought advice on 
whether it was, and when I was told that it wasn't, I sent it 
in. I paid what I believed to be my taxes at the time, and if 
it turns out it is not correct, then I pay whatever I am 
supposed to pay.
    Senator Specter. Judge White, you testified that you 
``abide by the rules of the road, but sometimes you have not.'' 
Could you expand upon whether you--when and under what 
circumstances you have not?
    Judge White. I have tried to abide by the speed limit. 
There are times when I--
    Senator Specter. Have you on occasion not abided by the 
speed limit? You mentioned that.
    Judge White. Yes, sir, there are times when I have exceeded 
the speed limit.
    Senator Specter. Anything else related to the rules of the 
    Chairman Leahy. You know, if you want to ask further 
questions, we can wait until that closed session. I hope we do 
not set a standard that nobody can be a Federal judge if they 
have ever driven over the speed limit or that nobody can be a 
United States Senator if they have ever driven over the speed 
limit, because it is going to be a pretty darn empty chamber 
around here if that is a standard.
    Mr. Kethledge, we were talking about--have you had any 
experience with the Terrorist Surveillance Act?
    Mr. Kethledge. No, sir, I have not.
    Chairman Leahy. Or with the Federal Rules on attorney-
client privilege that is under debate now, the--
    Mr. Kethledge. Not the Federal. I have only experienced 
that to the extent I have been subject to it.
    Chairman Leahy. And how about the reporter's shield law? 
Have you done a lot in that regard?
    Mr. Kethledge. No, sir.
    Chairman Leahy. So you are so like Judge White in that 
    Mr. Kethledge. That would be correct, Chairman.
    Chairman Leahy. I know that I agree with what President 
Bush has on his website, Judge White, that you are experienced 
and highly qualified. I was thinking that you--about 98 percent 
of these district attorneys see their sentences upheld. Anybody 
who has ever been a district attorney would be delighted to 
have 98 percent of their cases upheld. And I also, even though 
you have been an appellate judge longer than Mr. Kethledge has 
been a lawyer, I think you are both highly qualified.
    We will--
    Senator Brownback. Mr. Chairman, I do want to move that we 
go into closed session.
    Chairman Leahy. We will set a time so we can have other 
members here at a time when that can be done. The record will 
stay open in the meantime, and I can assure the Senator from 
Kansas he will have his opportunity to make that request.
    Senator Brownback. Thank you.
    Chairman Leahy. We stand in recess.
    [Whereupon, at 12:27 p.m., the Committee recessed, to 
reconvene at 5 p.m., and went into closed session.]
    [Questions and answers and submissions follow.]
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                     NORTHERN DISTRICT OF NEW YORK


                        WEDNESDAY, JUNE 11, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 2:17 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Schumer, presiding.
    Present: Senator Brownback.

                   FROM THE STATE OF NEW YORK

    Senator Schumer. The Committee will come to order.
    I want to welcome all the nominees and their families. We 
have an all-New York panel this afternoon, and that warms my 
heart. In New York, we have worked out a really wonderful 
system of nominating judges to the District and Circuit courts, 
in which the President and I have worked extremely well 
together to name highly qualified consensus candidates to the 
Federal bench.
    We all know there's often rancor when it comes to judges 
from other parts of the country, but there's been virtually 
none in the 7-years of George Bush's term, in the 7-years I've 
been here in the Senate when we have served together and that's 
because in New York we select mainstream consensus candidates 
for the bench.
    It's my honor to introduce to the Committee today four such 
candidates to serve as judges in the District Courts across the 
great State of New York. All four of our nominees have 
unanimously been rated ``Well Qualified'' by the Bar 
    And so now I would like to ask the nominees to come 
forward. Okay. Now, Congressman Walsh was going to be here to 
give an introduction, particularly to Mr. Suddaby, but he 
isn't. So if he comes we'll let him do his introduction after 
the introductions.
    Now, will you please raise your right hand?
    [Whereupon, the nominees were duly sworn.]
    Senator Schumer. Please be seated.
    Now, before I introduce the judges, the witnesses, Senator 
Brownback? I can sit down, I guess. Would you like to say 
something, Senator Brownback.

                           OF KANSAS

    Senator Brownback. Yes. Thank you. I wanted to thank 
Chairman Leahy for holding this hearing and moving these 
forward. As you know, this has been a controversial issue, the 
slow pace of judges getting approved, both at the District and 
the Circuit levels. I'm pleased to see us getting this moving 
forward, and hopefully these will get floor time to be able to 
get approved on through the process. We are historic low levels 
on Circuit Court judges, and my hope is that we can start to 
get some of those to move, as well as District Court judges.
    I am pleased we are getting these four in the hearing 
today. I have looked through some of your backgrounds; quite 
impressive. We have even got one here from Manhattan, Kansas. 
Or was it Manhattan, New York? Okay. Well, I get those mixed 
    Senator Schumer. Six of one, half dozen of the other.
    Senator Brownback. Big Apple, Little Apple. I get those 
confused sometimes. But glad to have you here, and glad to be a 
part of the hearing.
    Senator Schumer. Well, thank you, Sam. We in New York were 
proud to name our center island of New York City after 
Manhattan, Kansas.
    Anyway, let me first--I am pleased to introduce Paul 
Gardephe. He's nominated to be a District Court judge for the 
Southern District of New York. Mr. Gardephe has an impressive 
and eclectic legal resume that includes work in both the public 
and private sectors in work on criminal prosecution, criminal 
defense, civil litigation, and corporate law.
    After graduating magna cum laude from the University of 
Pennsylvania and from Columbia Law School, Mr. Gardephe served 
as a clerk to Judge Albert Engel on the Sixth Circuit. He then 
worked as an associate with Patterson, Belknap, Webb & Tyler 
before working 9-years in the U.S. Attorney's Office in the 
Southern District of New York.
    Mr. Gardephe then left to work for the Inspector General at 
the Department of Justice, where he worked to review the 
Department's performance in the Robert Hanson and Aldritch Ames 
spying cases. After the Inspector General's Office, Mr. 
Gardephe returned to the private sector, first to work as an 
in-house counsel, and ultimately vice president and deputy 
general counsel to Time, Inc. Mr. Gardephe later returned to 
Patterson, Belknap, Webb & Tyler, where he is now a partner and 
chair of the Litigation Department.
    Among other things, Mr. Gardephe has represented a death 
row inmate pro bono who was eventually released after years of 
litigation. For his work, Mr. Gardephe was honored with the 
Thurgood Marshall Award for Pro Bono Death Penalty 
    Mr. Gardephe, I understand your wife and four children are 
here with us today. Would you like to introduce them and make 
any remarks to the Committee?


    Mr. Gardephe. Thank you, Mr. Chairman. I would like to 
thank you, I'd like to thank Senator Specter, Senator 
Brownback, and all of the members of the Committee for the 
privilege of appearing before you today. I'd also like to thank 
the President of the United States for giving me the honor of 
nominating me to this position.
    I am fortunate to have with me today my wife of 27 years, 
Colleen Davis, along with our four children.
    Senator Schumer. When is your anniversary, Mr. Gardephe?
    Mr. Gardephe. 12/27/81, Mr. Chairman.
    Senator Schumer. Because my wife and I are married--we 
celebrate our 28th on September 24th.
    Mr. Gardephe. I have with me today, in addition to my wife, 
my four children: Tess, who just graduated from high school, 
and I have three other children. They're triplets, 12 years 
    Senator Schumer. Ooh.
    Mr. Gardephe. Emma Kate, Paul William, and Sophie Elayna.
    In addition, I have two friends with me today.
    Senator Schumer. Why don't we first have your family stand 
up so we can just acknowledge them? Mrs. Gardephe. And hi, 
    Thank you. Welcome.
    Please continue.
    Mr. Gardephe. I have two friends with me, Mr. Chairman. 
Susan Woodside, who I worked with on the Ames and Hanson 
investigations at Department of Justice, and also Amanda 
Kramer, who is an Assistant U.S. Attorney in the Southern 
District of New York.
    [The biographical information follows.]

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    1Senator Schumer. Thank you, Mr. Gardephe.
    Now let's move on. Next, I am particularly proud to 
introduce Judge Kiyo A. Matusumoto because she was my 
recommendation to fill the seat on the U.S. District Court for 
the Eastern District of New York, which covers all of Long 
Island, which includes Brooklyn and Queens, where I live. 
Before becoming a well-respected U.S. magistrate judge in the 
Eastern District, Judge Matsumoto's impressive career included 
work in the private sector, in academia, and in public service.
    After graduating with high honors from the University of 
California at Berkeley and receiving her J.D. from Georgetown, 
Judge Matsumoto worked as an associate at McDonald, Hogue & 
Bayliss from 1981 to 1983. She then worked as an Assistant U.S. 
Attorney in the Eastern District, and has also taught as an 
Adjunct Professor of Law at NYU.
    As a magistrate judge since 2004, Judge Matsumoto has 
earned an unimpeachable reputation, and only on one occasion 
has a reviewing District Court declined to adopt her report and 
recommendations. I am not only pleased with Judge Matsumoto's 
nomination because of her integrity and qualifications, but I 
also believe Judge Matsumoto will contribute to a diversity of 
perspectives to the Federal bench. Outside the Ninth Circuit, 
Judge Matsumoto will be only the third Asian American appointee 
to the Federal courts, and only the second in 14 years.
    Judge Matsumoto's father is here with us today. He and 
Judge Matsumoto's mother spent time in an internment camp 
during World War II, and I've always been hopeful that by 
ensuring that the Federal bench is filled with men and women of 
principle from a diverse range of backgrounds and experiences, 
we can avoid repeating such tragic mistakes of the past.
    Judge Matsumoto and her husband have three beautiful 
children. So, Judge, why don't you introduce your family and 
make any brief remarks you wish to make?


    Judge Matsumoto. Senator Schumer, I would like to thank you 
and the Committee for hearing us today, and thank Senator 
Brownback for being here. I would also like to thank the 
President for his nomination to the U.S. District Court for the 
Eastern District.
    I'm very pleased to introduce my family. I have here my 
father, George Matsumoto, and my brother Ken Matsumoto, both 
from California. And I have my husband of 23 years, Colin Lee, 
along with our three children, Kimi Lee, Liam Lee, and Miya 
    In addition, I am pleased to note that seven of my present 
and former law clerks are present here.
    Senator Schumer. Why don't we first have your family stand 
so we can acknowledge them? It's always nice to see the proud 
families. Welcome. And particularly for you, Mr. Matsumoto. I'm 
sure you're very proud of your daughter today.
    Judge Matsumoto. Thank you, sir.
    Senator Schumer. Please continue.
    Judge Matsumoto. I do have, as I said, seven present and 
former law clerks here today: Ameet Kabrawla, Tomoko Onozawa, 
Kristin Mattiske, Alvin Lin, Ellen Blain, Jenny Kim, and Joseph 
Loy, as well as representatives of the Asian American Bar 
Association of New York and the National Asian-Pacific American 
Bar Association.
    Thank you, sir.
    [The biographical information follows.]

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    2Senator Schumer. Thank you, Judge Matsumoto.
    Next, we're going to move on to another nominee who I 
enthusiastically recommended to the President, and that is Ms. 
Cathy Seibel. She is nominated for the District Court of the 
Southern District of New York. She spent 21 years as a Federal 
prosecutor, mostly in New York. She developed a reputation for 
fairness and effectiveness. Currently, she's the First 
Assistant U.S. Attorney for the Southern District, and she's 
also served as Deputy U.S. Attorney and Assistant U.S. Attorney 
in Charge during her tenure.
    She has prosecuted a number of high-profile tax fraud 
cases, including the Leona Helmsley case, as well as the very 
first case when the Violence Against Women Act was used for a 
murder charge. I was the author in the House of that law, so it 
is good to see it going into effect in a good way.
    Despite the demands on her time as a prosecutor, Ms. Seibel 
also finds time to teach a course on trial practice at Columbia 
Law School and has previously taught courses at Fordham. And, I 
would add that while at the Southern District she has trained 
several generations of lawyers, and not the least of whom is my 
own chief counsel, the well-known and outstanding Preet Barara, 
who is sitting behind me making sure I make no mistakes.
    Ms. Seibel graduated magna cum laude from Princeton, 
received her J.D. from Fordham University where she was editor-
in-chief of the Fordham Law Review. She clerked for Judge 
Joseph McLaughlin in the Eastern District after graduation, and 
so she has truly been working to protect the rule of law in New 
York since the beginning of her career as a lawyer.
    Ms. Seibel, I know you are, too, joined by your family 
today. Would you like to introduce them to the Committee and 
make any brief statement?


    Ms. Seibel. Thank you, Mr. Chairman. I'd like to thank you 
and Senator Brownback for convening this hearing today, and 
particularly, Senator Schumer, thank you for recommending me to 
the White House. I'd like to thank President Bush for accepting 
that recommendation. It is an honor to be here.
    I have with me today my mother, Ellen Seibel, my husband of 
almost 18 years, Barron Lerner, our two children, Ben, who is 
15, and Nina, who is 13.
    Senator Schumer. Will you please rise, Seibel family? 
Welcome. Glad you're here. I can see how proud your mother is 
by the smile on her face.
    Ms. Seibel. And also some friends from DC are here: Eric 
Biel, Michael Bosworth, and Christine Parker.
    [The biographical information follows.]

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    6Senator Schumer. Great. Okay. Thank you.
    And finally, last but not least, I'd like to introduce the 
current distinguished U.S. Attorney for the Northern District 
of New York and the President's nominee to the bench for that 
same District, Mr. Glenn T. Suddaby.
    Mr. Suddaby has been a U.S. Attorney since 2002, but his 
ties to the Northern District go much further than that. He 
received his B.A. from Suny at Plattsburg, then received his 
law degree from Syracuse University, and then began his career 
as a prosecutor in Onondaga County, which is the county that 
the city of Syracuse is in.
    After a short stint in the private sector at the Syracuse 
law firm of Mentor, Ruben, and Trivelpiece, Mr. Suddaby 
returned to the Onondaga County District Attorney's Office as 
the First Chief Assistant District Attorney, and he served in 
that position for 10 years. Between college and law school, he 
served for several years as a legislative aide in the New York 
State legislature.
    Mr. Suddaby has earned his reputation as a hard- working 
prosecutor who has, in particular, targeted corruption 
throughout his District. Mr. Suddaby's impressive career in law 
enforcement and his commitment to placing the rule of law ahead 
of ideology make him a fine choice for New York and for the 
Northern District.
    Mr. Suddaby and his wife Jane have two children.
    Mr. Suddaby, please make any remarks you wish to make, and 
introduce your family.


    Mr. Suddaby. Thank you, Mr. Chairman. Thank you for the 
opportunity to be here today. I want to thank Senator Leahy and 
the Committee for the opportunity to be here. Senator 
Brownback, I want to thank you, sir, for being here as well.
    I want to particularly thank you, Senator Schumer, for your 
support now for the second time. I would like to thank the 
President for the nomination for the ability to sit here today. 
Thank you.
    My family is here. My wife Jane, of almost 19 years on 
August 25th, and my oldest son, Conor, and my younger son, 
    Senator Schumer. Please stand so we may say hello. Welcome. 
Thank you all for being here.
    Okay. Well, great. Now let's begin some questions.
    Here is my first question to all four nominees. There's 
been an age-old debate about how exactly a free society should 
balance security and liberty. I've always been a strong 
believer we can have both, that we can continue to exercise the 
liberty guaranteed by our Constitution without hampering the 
ability of government to protect us from those who would do us 
harm. We know there are plenty of people like that, 
particularly these days.
    I believe that our constitutional system requires checks 
and balances. The most important check on over-reaching 
executive power is the Federal judiciary. As a judge you will 
be on the front lines of the debate of how to balance liberty 
and security. How should a judge approach this question? How 
will you go about balancing these interests on the bench? We'll 
start with Mr. Gardephe and work our way to my right.
    Mr. Gardephe. Thank you, Mr. Chairman. The place I would 
begin, of course, is with our Constitution and laws that govern 
our country, and have governed it for the last 200 years. I 
would be guided by the fact that we have been able to maintain 
our principles through war and peace for the last 200 years, 
and most recently by the experience of the prosecutions in the 
Southern District of New York regarding the first attack on the 
World Trade Center, as well as the seditious conspiracy 
involving Sheik Rahman.
    I believe in both of those cases the judges involved were 
able to balance those important--indeed, vital--considerations 
that you just mentioned, and that we can be confident in the 
future that those critical values can be balanced.
    [The biographical information follows.]

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    3Senator Schumer. Judge Matsumoto.
    Judge Matsumoto. I agree with my colleague, Mr. Gardephe. I 
also would start with the Constitution that has governed all of 
the courts' considerations of issues where one must balance the 
interests of liberty and due process against the vital national 
interest of national security, particularly in times as we have 
experienced recently.
    I do believe that a judge, when making those delicate 
balances, must pay due deference to the executive and 
understand that in certain circumstances the executive does 
have certain prerogatives. However, when individual liberties 
are affected, I do believe that the court must look at the due 
process considerations to ensure that an individual is given 
fair notice of the charges and adequate protection of his 
constitutional rights.
    Senator Schumer. Thank you.
    Ms. Seibel.
    Ms. Seibel. Thank you, Mr. Chairman. The question you raise 
is probably the pressing issue of the day. Government has no 
higher function than to protect its citizens. At the same time, 
the rights in the Constitution are of utmost importance, and 
have been, as Mr. Gardephe said, for 200-plus years. If issues 
involving the conflict between those two principles came before 
me, I would look to what the higher courts have said on the 
subject and attempt to achieve, as you said a moment ago, the 
maximum security with the minimal abridgement of individual 
liberties based on that body of law.
    Senator Schumer. Mr. Suddaby.
    Mr. Suddaby. Thank you, Mr. Chair. I think it is, without 
question, a critical area that we really have to continue to 
show the world that we will continue to do it the right way and 
that individual rights will be protected. The judiciary has its 
role. We have a responsibility to make sure that we follow the 
law of the Constitution and that those rights are protected, at 
the same time assuring the public that justice will be done in 
our country for those who would threaten our liberties and 
    Senator Schumer. Thank you.
    Now, for each of you, a second question. Can you name a 
judge or a justice whom you admire, and tell us why?
    Mr. Gardephe. Yes, Mr. Chairman.
    Senator Schumer. Mr. Gardephe.
    Mr. Gardephe. There is a judge in the Southern District of 
New York when I first began as a lawyer named Edward Weinfeld, 
a District Court judge. Judge Weinfeld was admired greatly by 
lawyers practicing at the time for his legal scholarship, his 
work ethic, and his commitment to justice. He, in particular, 
when citing his opinions, it was the common practice after the 
citation to list in a parenthetical ``Weinfeld, J.'' because of 
the imprimatur that came along with any decision he had 
written. He is someone I admire greatly and would hope to 
    Senator Schumer. Judge Matsumoto.
    Judge Matsumoto. Thank you, Senator. I would have to say 
that I have always had a great deal of respect and admiration 
for Circuit Judge Rena Radja of the Second Circuit. She served 
briefly as the U.S. Attorney before her appointment to the U.S. 
District Court in the Eastern District, and throughout her 
career as a jurist has demonstrated a high level of 
scholarship, clear writing, very strong awareness of protecting 
the rights of the accused, and ensuring that he or she receives 
a fair trial. She is also, I think, as a Circuit judge, 
continued her tradition of writing clear, scholarly decisions 
and providing guidance for judges to follow.
    Senator Schumer. Ms. Seibel.
    Ms. Seibel. I had the good fortune after law school to 
clerk for Judge Joseph McLaughlin, who was then a District 
Court judge in Judge Matsumoto's court in Brooklyn. He, to me, 
is a wonderful example of a judge who is scholarly and yet 
practical, who runs a tight ship but never loses his humanity, 
and his recognition that the parties before him are there on 
what is, in their lives, an incredibly important matter, and I 
would try to emulate him.
    Senator Schumer. Mr. Suddaby.
    Mr. Suddaby. Yes. Thank you, Mr. Chairman.
    I met the Chief Judge in the Northern District of New York 
when I was in law school, Judge Munson, who was revered as a 
very clear-thinking, hard-working, hard-charging, practical 
judge. He works--you know, took the time to work with law 
students. He reached out to the community and he was really 
very well-known for his recall. In the middle of the trial he 
would quote testimony back to people from a week before. He was 
just what a District Court should be. He just retired last 
month after, I think it was, 30-some plus years on the bench. 
It was a great honor to know him and to have him as a role 
    Senator Schumer. Thank you.
    I have two more brief questions. My time is up, but with 
Senator Brownback's indulgence, first, for Judge Matsumoto, you 
have spent most of your career representing the government, 
defending it from civil litigation. One of the hallmarks of our 
legal system is, all citizens have the opportunity to seek 
redress from their government when it has violated their 
    What can you tell the committee to assure us that, if 
confirmed, you'll be able to fairly consider the claims and 
rights of plaintiffs against the government?
    Judge Matsumoto. Thank you, Senator. In my capacity as an 
Assistant U.S. Attorney, I also had occasion to bring suits on 
behalf of the Federal Government. As a magistrate judge, I 
certainly do have many cases before me where I must carefully 
weigh the arguments, both factual and legal arguments, of both 
parties. I believe that I have attempted, and have in fact 
achieved, the ability to come to every case with an open mind, 
read the papers submitted by the parties, research the law, and 
follow the law to the best of my ability.
    I do believe that in my capacity as a magistrate judge, 
when I've had to select jurors, I try very hard to probe the 
jurors and ensure that they come to the jury box with an open 
mind with no pre-conceived prejudices or notions about the 
outcome of a case or that may affect their ability to be fair 
and impartial in considering the facts before them.
    Senator Schumer. Thank you.
    And now for both Ms. Seibel and Mr. Suddaby, you both spent 
the bulk of your legal career as prosecutors, Federal 
prosecutors. By all accounts you've been both fair and tough, 
but you have spent little or no time representing the other 
side in the criminal justice system. What can you tell the 
Committee to assure us that, if confirmed, you will be able to 
fairly consider the claims and rights of criminal defendants 
who come into your courtroom?
    Ms. Seibel. Thank you, Senator. I regarded as part of my 
job as a prosecutor to look at the case from both sides, to 
make sure that the process is fair, to make sure that the 
defense has the rights--in fact receives the process to which 
it's entitled under our laws, and I would like to think, if you 
spoke to opposing counsel on the cases I've handled, they would 
tell you that I have succeeded in what I hope I'm achieving, to 
be open-minded and fair, and I would certainly do my best to 
continue that if I am fortunate enough to be confirmed.
    Senator Schumer. Mr. Suddaby.
    Mr. Suddaby. Thank you, Senator.
    As in my supervisory capacity, both in the District 
Attorney's Office of Onondaga County as a U.S. Attorney, I 
often spoke to our young prosecutors about the fact that they 
have a high responsibility as prosecutors to do justice, and 
that means they should be just as happy and satisfied with the 
dismissal of a case if that warrants--if that accounts for 
justice as a jury verdict. I think I can say that people who 
know me understand that that's the way that I look at it, and 
that if I am fortunate enough to take this next step and be 
confirmed as a Federal District Court judge, that every person 
that walks into that courtroom will be treated fairly and just 
the same as anyone else.
    Senator Schumer. Thank you. I'm finished with my questions.
    Senator Brownback.
    Senator Brownback. Thank you very much, Mr. Chairman.
    Welcome, all of you. I'm delighted to have you here. I was 
sitting up here feeling a little bit left out, so I wanted to 
tell you all, I have been married 25 years to a wonderful wife.
    I have five children, and August 7th is my anniversary 
    So I'm delighted to have all of you here. You've got great 
records. I've just got one specific question for each of you 
I'd like to go through, if we could.
    Mr. Gardephe, you worked for the Justice Department as 
Chief Investigator of the FBI's performance in connection with 
the Ames and Hanson espionage cases. I just wondered, and this 
is just for personal consumption more than anything, what did 
we learn as a country through your investigation in coming out 
of that on the other side?
    Mr. Gardephe. Thank you, Senator. We learned, I think in 
part, from both the Ames and the Hanson experiences that it is 
important to have deterrents in place to make people who are 
contemplating espionage think about the risks. And I think what 
we learned from the Ames and the Hanson affairs is that we did 
not have adequate deterrents in place, we did not have 
financial disclosure requirements, we did not impose polygraph 
examinations with the frequency perhaps they should have been. 
We did not have adequate deterrents in place to prevent people 
like Ames and Hanson who attempted to betray their country to 
think about the consequences and the risks if they went forward 
with that betrayal.
    Senator Brownback. This doesn't have anything to do with 
your appointment, but have we put those safeguards in place 
since then?
    Mr. Gardephe. There have been great improvements in the 
security regimes at both the CIA and the FBI since Ames and 
Hanson. While we cannot be certain that there are no moles in 
these organizations today, there are certainly far more 
deterrents in place now than there was back when Ames was a CIA 
officer and Hanson was an FBI agent.
    Senator Brownback. Judge Matsumoto, you have an impressive 
background and impressive family history. I jog or walk around 
Capitol Hill and will go by the memorial where we recognize the 
internment, and it's always, I guess, great to see people 
succeed through difficulty. You and your family, and your 
father, certainly have a lot to be proud of.
    You've done pro bono work for several women's 
organizations, I noted, including for a community group who 
provides assistance and shelter for abused women and their 
children. What have you learned through that work that we 
should know about here in dealing with that type of situation 
of abused women and children?
    Judge Matsumoto. I think the overriding concern, Senator, 
in that situation was to provide a safe shelter for women who 
were trying to remove themselves from the abusive situation so 
that she and her family could seek adequate support, whether 
it's legal or from the social services agencies, and to give 
her a place where she could decompress and have some distance 
from an abusive relationship, which oftentimes would be highly 
charged. My work there was primarily to assist organizations 
that would try to set up shelters for these women so that they 
could receive safe shelter from a situation until those support 
services were put into place.
    Senator Brownback. Are we adequately addressing that 
situation now? This has no bearing on your appointment, but I 
just was noting it in your resume and I just was curious.
    Judge Matsumoto. This was an organization in Seattle in my 
first 2 years of practice that I worked with. I haven't ever 
been back to practice in Seattle, but I do believe that 
certainly the public awareness of this problem has increased 
and I do believe that, at least in New York City and other 
metropolitan areas, there is more attention being focused on 
the problem of domestic violence and the need to provide 
shelter for families who may wish to extricate themselves from 
a difficult situation.
    Senator Brownback. Ms. Seibel, you've worked--there was an 
article on you while you were serving as a Special Assistant 
U.S. Attorney on bankruptcy and tax fraud crime cases. I think 
you said in one article, if they quoted you right, said this 
``made your blood boil''. I like it when people get their blood 
boiling; we do that a lot around here.
    In your view has the Federal law enforcement been paying 
enough attention in recent years to bankruptcy fraud cases? Do 
law enforcement officers and prosecutors have sufficient tools 
to effectively attack bankruptcy fraud?
    Ms. Seibel. Thank you, Senator. I think that quote sounds 
like me. I think I probably was correctly quoted. There have 
been improvements since I was doing that work back in the early 
1990s. I believe it's Section 152, which is the main criminal 
bankruptcy fraud statute, that has been amended and 
rationalized. I think, like anything else, it is a matter of 
resources. Many bankruptcy frauds are not huge frauds.
    It is always difficult in allocating resources: Do you 
focus on a few huge frauds? Do you try to look at a bunch of 
little frauds? I think, as in most areas of law enforcement, 
you can't possibly prosecute everybody who's doing it. You have 
to try to bring enough cases that it will deter other people 
who might be thinking of that. But to me, since bankruptcy is a 
privilege created by government, it does make my blood boil 
when people abuse it.
    Senator Brownback. That undermines the system, as you note, 
that privilege, if it is abused.
    Mr. Suddaby, you mentioned in your written answers to the 
Committee's question, you personally prosecuted over 80 
homicide cases. That's a lot of cases to prosecute. You've 
represented Department of Justice on a border enforcement team 
on setting policy at the border with Canada. We generally focus 
on the southern border a lot more than the northern border 
here. What do you see as the greatest security threats we have 
on that northern border, and are they being addressed?
    Mr. Suddaby. Thank you, Senator. Yes. I've had the great 
opportunity to serve as the Attorney General's chair on the 
Border and Immigration Subcommittee, and it's mainly because I 
was up there on the northern border yelling about all the 
resources going to the southern border, and that we had another 
border up north and there was a different type of threat, but I 
thought, and still believe, a very real threat that we have to 
be aware of.
    I'm happy to tell you, I think we've made a lot of progress 
in our work with the Canadian Government and Canadian law 
enforcement. Our CMP has worked with our border law enforcement 
agencies terrifically. One of the committees I sit on is the 
International Joint Management Team for IBETs, which means 
Integrated Border Enforcement Teams, where provincial in 
Canada, Federal in the U.S., State and local, all the way 
through work together on the border, come together as a task 
force and share intelligence and do what they can to secure 
that border.
    Now, we still have a lot of work to do and there is a 
threat there that we need to realize is real and pay attention 
to, but I think we're doing a good job and we're making great 
    Senator Brownback. I would ask all of you a narrow question 
on your background because I guess we tend to look at judges as 
going into a cloistered life now, and it's okay, now you remove 
yourself from living and you just sit on a bench and you 
dispense justice from there. I don't think it's fair to you. I 
don't think that's good for the system. You each bring 
different experiences. They may be fairly far back in your 
background, it may be fairly recent, but those are useful 
    I just want to encourage each of you to continue to do 
those to the degree you can and maintain your independence on 
the bench. If it's spending the night at a homeless shelter or 
checking yourself into jail sometime--not for breaking the law 
but for experience basis--I just find, for me, it really 
changes your outlook when you get a sense, and a smell, and a 
feel and you can really see the system rather than hear about 
it through somebody else.
    I spent a couple nights in jail of my own volition, not 
having committed any crime or being held there against my will. 
Fabulous experience. Just the smell and the feel, it just makes 
all the difference in the world. So I just urge you to follow 
some of your instincts on some of those when you get a chance 
to, because it just will really broaden that background of 
experiences you have.
    Too often when we put people up in your positions, it's 
okay, that's it, now you've just got to sit here and be a judge 
and stop experiencing these things, when we really need you to 
experience a lot more things because you're going to have odd 
cases come in front of you. You don't know what case is going 
to come in front of you, but we expect you to be able to make a 
good judgment once that case comes in front of you. I've you've 
had a background of experiences to be able to mesh with it, 
that's just all that much more helpful to be able to do.
    My final thought and admonition is just that, in government 
positions, I think we need a lot of humility, that we just 
don't know everything. Certainly in my position you can't say 
that sort of stuff because people expect you to know things, 
but we don't. I think we just need a good, good dose of 
humility, of listening to what people have to say, realizing we 
need wisdom. We've been put in these great positions to be able 
to do what's right, and the people trust the system. If they 
ever lose trust in the system we are in real trouble, and you 
are a big part of that trust in the system.
    God bless you. I appreciate all of you, and I appreciate 
your families, too, for being a part of this because these are 
key jobs and it requires the whole family to do it.
    Thank you, Mr. Chairman.
    Senator Schumer. Well, thank you, Senator Brownback.
    I want to thank all our witnesses. Before ending, I'd like 
to put into the record the statements of Chairman Leahy, who 
couldn't be here today--he's got many responsibilities, as you 
can imagine--and Senator Clinton. So, without objection, their 
statements will be entered into the record.
    [The prepared statements of Senator Leahy and Senator 
Clinton appear as a submissions for the record.]
    Senator Schumer. We'll keep the record open for one week 
for written questions.
    With that, our hearing is adjourned.
    [Whereupon, at 2:53 p.m. the Committee was adjourned.]
    [Submissions follows.]

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                       TUESDAY, SEPTEMBER 9, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-562, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Whitehouse, Specter, and Hatch.

                      THE STATE OF VERMONT

    Chairman Leahy. The hearing will come to order. Senator 
Hatch is a former Chairman of this Committee, and he knows that 
many times these little colloquies between the members is where 
half the work gets done.
    I have been concerned--and I am not saying anything here 
that I have not said before--about the number of filibusters, 
Republican filibusters, we faced this year and the refusal to 
give consent to proceed even on important bills. We had a 
number of bills out of this Committee that went out with 
virtually every Republican and every Democrat supporting them, 
and yet they still get blocked. We do have the Republican 
Thurmond rule which says no judges after--certainly after the 
1st of July. But I have gone the extra mile by proceeding with 
another confirmation hearing, and I hope that I will not get 
the objections from our Republican colleagues on breaking the 
Republican Thurmond rule by still having judges this late in 
the game.
    The hearing will include the President's nominee to be 
Solicitor General. This will almost complete our efforts to 
expedite consideration of replacements--the entire leadership 
of the Justice Department resigned in the wake of the scandals 
of the Attorney General Gonzales era, and so this will bring 
about almost the replacement of the entire leadership team at 
the Department of Justice.
    We are going to include five additional judicial 
appointments. Their tenure, of course, is for a lifetime and 
will not expire in 5 months when the President leaves office. I 
mentioned the Thurmond rule. That dates back to 1980, Senator 
Strom Thurmond, the Republicans were in the minority, he was 
Ranking Minority Member, and he called for shutting down the 
judicial confirmation process. There was a Democratic 
President. Republicans were in the minority, and Democrats 
conceded to the Thurmond rule, which I know everybody on this 
panel strongly supports.
    Then the Republicans used it in another recent Presidential 
election year, 1996, when the Republican Senate majority did 
not confirm a single judge after the August recess and no 
circuit judges during the whole 1996 session. I mention that 
because I saw something in the press recently that suggested 
otherwise, and it is unfortunate when reality gets in the way 
of the rhetoric.
    We have confirmed more judges already in this Congress than 
during the entire 109th Congress, when a Republican Senate 
majority and Republican Chairman of the Committee did not have 
to worry about the Thurmond rule and an abbreviated session due 
to a Presidential election. In the 37 months I have served as 
Judiciary Chairman, the Senate has confirmed 158 of President 
Bush's judicial nominees. That is the same number confirmed by 
the Senate Republican majority in the more than 4 years it 
controlled for the Republican administration.
    But I will work with everybody. It is possible that you 
know at this time there had been over the year rare exceptions 
to the Thurmond rule, but it has required the consent of both 
the Democratic and Republican Leader and the Democratic and 
Republican leaders of this Committee to do that. And I want to 
thank Senator Specter who agreed to these judges: Clark 
Waddoups--am I pronouncing that correctly, Senator Hatch--of 
Utah; Michael Anello of California; Mary Stenson Scriven of 
Florida; and two nominees from Colorado: Christine Arguello and 
Philip Brimmer. They have the support of their home-State 
Senators, Republicans and Democrats.
    Senator Salazar called me so many times at my home last 
week in Vermont, I think he had me on speed dial. Both my wife 
and I are friends of the Salazars, and she was always happy to 
hear from you, and I was always happy to hear from you. At 
least on one occasion when the phone rang, I said, ``Look, I 
have got a pile of work I have got to do. I do not care who 
that is. Tell them I am not here.'' And she answers and she 
said, ``Oh, this is different. Patrick, it is Ken Salazar. You 
take that call,'' which I did. And I want to commend you, 
Senator Salazar, on working it out with Senator Allard so we 
could have these judges before us. As you know, they were not 
originally on the list, and at your request we asked consent to 
do it. I want to thank Senator Specter, too, because even 
though the time was not the normal time given for notice, the 
Republicans did not object, and we were able to put them on.
    Ms. Arguello had been nominated before by President Clinton 
to the Tenth Circuit, but was pocket-filibustered in 2000. So 
we are trying to get through these, so Ms. Arguello, like Judge 
Helene White, has now been nominated by Presidents of both 
parties. We have reduced Federal judicial vacancies from the 
10-percent level they hit after the pocket filibusters before, 
during President Clinton's time, to less than half that number, 
and have done even better with the circuit vacancies. We have 
reduced those by more than two-thirds. And so we have actually 
improved--one of the areas we have improved.
    I will put the rest of my statement in the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. I will yield, of course, to Senator 
Specter, and again I thank Senator Specter for making it 
possible for us to add the two from Colorado at the request of 
Senator Salazar and Senator Allard.

                        OF PENNSYLVANIA

    Senator Specter. Well, thank you, Mr. Chairman. I was 
pleased to consent to the additions, notwithstanding the 
technical rule requirements, and we thank you for listing these 
judges for the confirmation hearing today.
    I think that the agreement between Senator Allard and 
Senator Salazar is a good barometer of moving ahead with the 
appointment of their judges, and it is my hope that the example 
which they have set will provide the basis for some additional 
confirmation hearings. Certainly when two Senators, one a 
Republican and one a Democrat, come to an agreement, that takes 
the issue of ideology out of the picture and provides a 
principled basis for moving ahead, notwithstanding the fact 
that it is September.
    There are some other situations which I have been 
discussing with the Chairman where the same thing has happened, 
where Senators of different parties in other States have come 
together, and it is my hope that it will provide a basis for 
moving ahead with some additional confirmation hearings.
    When the Chairman cites the practices of the past, I agree 
that there has been certain actions taken by the Republican 
Caucus which I think were unfortunate and said so at the time. 
I think the same thing has happened with the Democrats. The 
Chairman and I have engaged in a very extensive discussion on 
statistics, which I will not do here today. We have also 
engaged in discussions about the application of the so-called 
Thurmond rule, and I would just put in the record a CRS study 
which raises questions about the Thurmond rule, citing examples 
where confirmations were held. Perhaps the most notable was now 
Supreme Court Justice Breyer confirmed to the First Circuit 
after the 1980 election when President Reagan was elected and 
the Committee acted and the Senate confirmed First Circuit 
Court Judge Breyer at that time.
    But I think that it is fair to say that the Judiciary 
Committee of late has acted in a bipartisan, collegial manner, 
and I think that has been to the benefit of the country. And 
that is illustrated today by the Chairman setting these 
hearings, and even though it is September. So I hope we can 
proceed, and I hope we will one day reach a point where the 
ideology will be put behind us and we will try to move ahead on 
qualification only.
    Thank you, Mr. Chairman.
    Chairman Leahy. I thank you.
    Of course, as Senator Specter knows, we try to work 
together of every one of these things and try to have them 
together. So I will go by seniority in calling on the Senators: 
first, from Utah, Senator Hatch, one of the most senior members 
of the Senate.


    Senator Hatch. Well, thank you, Mr. Chairman.
    Chairman Leahy. I knew him when he had dark hair. He knew 
me when I had hair.
    Senator Hatch. And I like you better without hair. As long 
as your wife likes you, I am going to love you, I tell you 
    Well, thank you, Mr. Chairman, for scheduling this hearing. 
It is very important to us in Utah, as well as the other States 
involved here today. Let me just take a few moments to 
introduce to the Committee Clark Waddoups, who is nominated to 
the U.S. District Court for the District of Utah. And I will 
just take a few minutes because my colleague Senator Bennett is 
also here to speak about this exceptional nominee.
    When Judge Paul Cassell stepped down from the U.S. District 
Court last year, Senator Bennett and I set out to find a 
replacement with legal experience that is both wide and deep. 
Clark Waddoups truly stood out. It became obvious to us why the 
Utah Chapter of the Federal Bar Association recognized Clark in 
1999 as Utah's Outstanding Lawyer, because that is exactly what 
he is. Clark has been practicing law for nearly 35 years, the 
last 27 years as head of his own firm in Salt Lake City. Before 
that, he was a partner in the law firm of O'Melveny & Myers, 
but he did come home to Utah.
    He has been involved in virtually every aspect of law in 
our State, including serving on the Board of Visitors of the 
Law School of Brigham Young University, and for 17 years on the 
Advisory Committee to the Utah Supreme Court on the Rules of 
Evidence. He has been involved in legal practice at the Federal 
as well as State level, having clerked for the distinguished 
Ninth Circuit Judge Jay Clifford Wallace and twice chairing the 
Merit Selection Panel for the U.S. Magistrate Judges.
    I might mention Judge Wallace was always in contention to 
be placed on the Supreme Court. That is how well thought of he 
was by both parties. And Clark Waddoups is the type of person 
any appellate judge would love to have work.
    The majority of Clark's extensive litigation experience has 
been in Federal court, and I am confident that his confirmation 
will be a smooth transition from before to behind the Federal 
    Mr. Chairman, I know this is a somewhat chaotic time of the 
year in Congress, and we have just a few weeks to get a lot 
done. Utah has only five U.S. district court seats, and our 
population has increased by more than 50 percent since the last 
one was created in 1990. That kind of population growth, among 
the fastest in America, means more cases and more pressures on 
the court.
    Since Judge Cassell resigned to go back to teaching, he is 
not available to pitch in the way senior judges do. So it is 
very important that this seat be filled, and I am so pleased 
with the excellent nominee the President has sent to the 
    Mr. Chairman, I know Clark Waddoups very well. We looked at 
the whole Utah Bar, and there are a number of very, very fine 
judges and lawyers there from whom we could have picked this 
seat. And I have to say that none is finer than Clark Waddoups. 
Clark Waddoups is truly a lawyer's lawyer. He is somebody that 
I think everybody on this Committee would respect and will 
respect. He is a person who I expect to be nonpartisan in every 
way. He is a person I expect to be one of the pillars of the 
district court bench in not only Utah but throughout the 
country. And I believe that he will add a great deal to our 
Federal courts.
    He is here with his wife and son, and I hope that you will 
get him to introduce them to you. I am very proud of this 
family, very proud of the services given, very proud of the 
legal capacity that he has. He is one of the great lawyers in 
this country, and I know that.
    So once again, Mr. Chairman, I appreciate your scheduling 
this hearing and hope that each of these nominees will be 
confirmed before our work is finished this year, and I am 
grateful to you.
    Chairman Leahy. Well, thank you very much, and he should 
know that the nice things you have said about him here you said 
to me privately several times, and you have been a very active 
backer of his and talked to me quite a bit. And, of course, 
with your support and Senator Bennett's support, two Senators I 
respect greatly, this has helped a lot.
    Senator Specter. Thank you.
    Chairman Leahy. Senator Bennett.


    Senator Bennett. Thank you very much, Mr. Chairman. I am 
very pleased to join with Orrin in recommending Clark Waddoups, 
and we did conduct a search together. I had some names, Orrin 
had some names. We sat down and went through them. And Clark 
Waddoups' name rather quickly rose to the top of the list, and 
he became ultimately our only choice as the one to recommend to 
the President. And I am honored, as is Orrin, that the 
President has chosen to respect our recommendation and make the 
nomination to the Senate.
    He is a named partner at one of Utah's leading law firms. I 
am not a lawyer, but I have paid a lot of legal bills in my 
    Senator Bennett. And this is a law firm that the company 
with which I was associated used in its legal activities, and 
they were searching for the best, and this is where they went.
    He is ranked 26th in this year's list of Best Lawyers in 
America. Orrin talked about best lawyers in Utah, but he has a 
reputation that is national. He is an active member of the Utah 
Supreme Court Advisory Committee on Rules of Evidence, and his 
educational background shows how ecumenical he is in the 
primary collegiate competition within Utah. He graduated cum 
laude from Brigham Young University in 1970 and then graduated 
Order of the Coif from the University of Utah Law School in 
1973. So he has covered both of those bases that demonstrates, 
I think, a very wise kind of political balance for this man. 
While in law school, he served as President of the Utah Law 
Review, and Orrin has mentioned that he clerked for Judge 
Wallace on the Court of Appeals in the Ninth Circuit.
    He has earned the praise of a lot of his colleagues. Let me 
dip into a few publications and share with you some of the 
comments that have been made.
    In the ABA Journal, it says in an article that he possesses 
``that rare ability to teach and inspire.''
    Another colleague said, ``He is intellectually strong and 
doesn't allow himself to be pushed around or walked over. But 
at the same time, I have never seen him be belligerent with 
opposing counsel or an opponent or belittle them.''
    And finally, this quote: His style of legal practice 
reflects ``an unflinching commitment to honesty and 
    These are the comments of those who have worked with him, 
and I am proud to support his nomination and hope that the 
Committee will report it out in a judicious and rapid fashion.
    Thank you.
    Chairman Leahy. Well, thank you very much, and I know, 
Senator Bennett, both you and Senator Hatch have other 
committees that are meeting and going on. You are welcome to 
stay, of course, but also with the understanding if you have to 
leave at this point.
    Chairman Leahy. Senator Allard and Senator Salazar, first I 
might say that my wife and I spent several days in Denver, 
Colorado, this past month. Senator Allard, understandably you 
were not there, but--
    Senator Allard. I was fishing, Mr. Chairman.
    Chairman Leahy. Well, there was part of the time I wish I 
could have been there fishing, and part of the time I wish I 
was there fishing with you. But I must say that anytime I have 
ever been in Colorado, I feel so much at home--the friendliness 
of the people. I live on the side of a mountain in Vermont, 
nowhere near the height of the Rockies, of course, but just 
being there I feel very much at home. So I thank all 
Coloradans, Republican and Democratic alike, for the 
hospitality they showed us at our convention.
    Senator Allard, please go ahead, sir.


    Senator Allard. Well, Mr. Chairman, thank you for your very 
gracious remarks on Colorado, and I am glad that you had a good 
time while you were there. I thought it was a well-run 
convention and was proud to have you in the State of Colorado.
    Also, Ranking Member Specter, thank you for being willing 
to move forward with these two nominees. Distinguished members 
of the Committee, I am joined today by my colleague and friend 
Senator Salazar to speak on behalf of Christine Arguello and 
Philip Brimmer, two individuals nominated by President Bush to 
fill judicial vacancies in the United States District Court for 
the District of Colorado. Again, I just want to state how 
profoundly thankful I am for both of you being willing to move 
with both of these nominees.
    Christine Arguello, rated as qualified by the American Bar 
Association, and Phil Brimmer, rated as well qualified by the 
ABA, would capably and honorably serve the citizens of Colorado 
and the United States if confirmed.
    I would like to begin by thanking Chairman Leahy for 
holding this hearing. I look forward to the Committee 
continuing the tone of expediency set by the Chairman by 
swiftly reporting the nomination to the floor for an up-or-down 
vote. It is critical to the administration of justice that the 
vacancies on Colorado's Federal district bench, with a total of 
three vacancies--two have existed since last year--be filled 
immediately. And then one was added this spring with the 
untimely death of Phil Figa on the Colorado district court.
    I am pleased that we are joined today by Senator Salazar in 
what I hope is an early indicator of broad bipartisan support 
for these nominees.
    I would like to welcome to the United States Senate Mr. 
Brimmer's and Ms. Arguello's family who are here today. All of 
you no doubt played an important role in Christine's and Phil's 
being here today. Speaking from my own experience in public 
service, you are all embarking on this journey together, and 
your love and support will continue to be instrumental to your 
spouse's ability to perform his or her public duties.
    Mr. Chairman, Mr. Brimmer is an outstanding attorney. He is 
a graduate of Harvard and Yale Law School, institutions that 
provided him with tremendous analytical tools and an arsenal of 
knowledge which has served him well in his career. Upon 
graduation from law school, Mr. Brimmer spent 2 years clerking 
with the U.S. District Court for the District of Colorado. 
Thereafter, he joined a Denver law firm where he spent 7 years 
in private practice before making a decision to devote his 
career to public service. This decision led Mr. Brimmer to the 
Denver District Attorney's Office, serving first as Deputy 
District Attorney and later promoted to Chief Deputy District 
    Former District Attorney and current Governor of Colorado, 
Governor Bill Ritter, wrote, ``Throughout Mr. Brimmer's service 
at the Denver District Attorney's Office, he upheld the highest 
standards of integrity, fairness, honesty, hard work, and a 
dedication to public service.'' Governor Ritter felt he could 
trust Phil Brimmer with the most challenging cases that came 
before the office, and Phil Brimmer did not disappoint.
    Current Denver District Attorney Mitch Morrissey recently 
wrote about his former colleague in a similar fashion: ``Phil 
Brimmer never failed to impress me both with his work ethic and 
his knowledge of the law. He was one of our most valued 
    The sentiments of Governor Ritter and District Attorney 
Morrissey are reflected in numerous other letters sent to my 
office from people who worked with Mr. Brimmer throughout the 
    Similar to his experience as Deputy District Attorney, Mr. 
Brimmer has been exceptionally successful as a Federal 
prosecutor. Almost 7 years ago, he joined the U.S. Attorney's 
Office as Assistant U.S. Attorney and has worked on an 
assortment of criminal cases as chief of the Major Crimes 
Section and now as chief of the Special Prosecutions Section. 
As chief of Special Prosecutions in the U.S. Attorney's Office, 
Mr. Brimmer handled very challenging and procedurally complex 
cases, dealing with an assortment of crimes including child 
exploitation, cyber crimes, capital crimes, and prison crimes. 
Attorney General of Colorado John Suthers hired Phil Brimmer in 
the fall of 2001, recognizing his excellent work ethic and his 
tremendous intellectual capability. It seems Mr. Brimmer 
continues to impress everyone he works beside as he continues 
to serve Colorado's legal community with great distinction.
    Anyone familiar with Phil Brimmer's professional 
credentials can attest to his intelligence and his talent. 
Anyone familiar with Phil Brimmer as an individual would 
certainly observe that he is respectful, loyal, and good 
humored. His integrity, honesty, and professional dedication to 
public service also contribute to making Phil Brimmer a rare 
    From my conversations with Mr. Brimmer, it is clear that he 
recognizes the proper role of the judiciary. His personal 
qualities and character, coupled with his professional 
experience and an ABA rating of well qualified and outstanding 
bipartisan recommendations from within Colorado's legal, make 
Phil Brimmer ideally suited to service on the Federal district 
    I would also like to welcome Ms. Christine Arguello to the 
United States Senate. This is not my first endorsement of Ms. 
Arguello. In 1999, I made a recommendation to then-President 
Clinton to nominate Ms. Arguello for a seat on the U.S. 
District Court for the District of Colorado. This past January, 
I again offered her name to President Bush and urged he 
consider nominating Christine Arguello to fill a vacant 
judgeship on Colorado's Federal district court.
    I speak before this Committee today in support of the 
nomination of this fine lawyer for service on the Federal 
bench. In her more than 25 years of legal experience, she has 
worn many different hats. She is experienced as a trial lawyer, 
in-house counsel, law professor, and public servant. She is a 
skilled attorney with impressive credentials and a diverse 
professional background.
    Ms. Arguello earned her undergraduate degree from the 
University of Colorado and her law degree from Harvard. She 
began her distinguished professional career working as an 
associate for a law firm. She moved to a public service career 
after 19 years of private practice when she joined the Colorado 
Attorney General's Office, where she served as Chief Deputy 
Attorney General under former Attorney General and now my 
current Senate colleague Ken Salazar. In 2003, she returned to 
private practice as a civil litigation attorney. In 2006, she 
assumed her current job as managing senior associate counsel 
for the University of Colorado at Boulder.
    Described by many as a trailblazer, Ms. Arguello and the 
wide-ranging experiences and accomplishments she brings with 
her would make her a great asset to the Federal bench. In 
addition to being the first Hispanic from Colorado to be 
admitted to Harvard Law School and the first Hispanic to be 
promoted to partner at one of the ``Big Four'' law firms in 
Colorado, Ms. Arguello has added law professor to a long list 
of accomplishments. She became a tenured professor at the 
University of Kansas Law School and joined the faculty at the 
University of Colorado School of Law and the University of 
Denver College of Law as an adjunct professor and a visiting 
professor, respectively.
    Christine Arguello is a top-flight nominee whom I am proud 
to introduce to the distinguished members of the Committee.
    I look forward to a fair and dignified confirmation 
process, the outcome of which I am confident will reveal two 
highly qualified nominees deserving of confirmation.
    I would like to congratulate Phil and Christine, and on 
behalf of the citizens of Colorado, thank each of you for your 
willingness to serve this great country.
    Thank you, Mr. Chairman, and thank you, Senator Specter.
    Chairman Leahy. Thank you, Senator Allard.
    Senator Salazar.


    Senator Salazar. Thank you very much, Chairman Leahy, for 
holding this hearing this morning, and thank you for your 
leadership and your example as a statesman in your position as 
Chairman of this Committee. Thank you for the numerous 
telephone conversations that we engaged in over the weekend, 
and I appreciate Marcelle's patience in always answering the 
telephone. Thank you for your example.
    Senator Specter, you as well, as Ranking Member of this 
Committee, I very much have enjoyed my 3\1/2\ years here in the 
U.S. Senate, in part because I have had the honor of working 
with Senator Leahy and you, Senator Specter.
    Senator Hatch, thank you for your service on this 
Committee, and, Senator Whitehouse, thank you as well. I 
appreciate working with all of you, my colleagues.
    To Senator Allard, I want to thank you for what has been a 
journey that has taken us to where we are today. Some people 
said that it could not be done, but at the end of the day, I 
think our working together and recognizing the inherent 
qualities of the two nominees from Colorado resulted in both of 
us being able to stand before this Committee this morning 
saying that we both unequivocally endorse both of these 
    Let me make a comment very briefly about each of the 
nominees, and I will submit the formal statement that I have 
written for the record.
    First, with respect to Christine Arguello, her life story 
really is the personification of the American dream. She was 
born in southern Colorado in a place called Thatcher, far away 
from where anybody ever expected her to graduate from high 
school. Her father worked on the railroad, and for a part of 
her life, she actually grew up in a boxcar on the railroad as 
they moved from town to town. She became the first Latina, 
first Hispanic, ever admitted to Harvard Law School, went on to 
graduate from Harvard Law School and work with some of the most 
prestigious law firms in the Rocky Mountain West, including 
Holland & Hart, and later on becoming a partner at Davis, 
Graham & Stubbs.
    But that was not enough in terms of achievement for her 
because she also wanted to do some other things in terms of 
teaching and public service. She went on to the University of 
Kansas, where she became a tenured law professor, and while 
there also wrote one of the books that is most often used now 
in courses on evidence in law schools around the country.
    When I became Attorney General for Colorado, I looked for 
the best and the brightest to come to work for me in that 
Office of Attorney General. Christine Arguello joined me and 
served as the Chief Deputy Attorney General for the State of 
Colorado, working on cases that involved both Federal courts as 
well as the Colorado courts, arguing a number of cases before 
the Colorado Supreme Court, and the district court and the 
Tenth Circuit as well. She is a lawyer's lawyer and always 
tries to make sure that it is the rule of law which she upholds 
as she does her work in all the various capacities that she has 
    She has most recently been serving as senior counsel for 
the University of Colorado in Boulder and has done a tremendous 
job. She also happens to be a wonderful mother of four, 
including the two youngest of her children which she adopted 
about 6 or 7 years ago, and I am very proud of what she does 
within the community beyond her work as a great lawyer.
    The story of Phil Brimmer likewise is a remarkable story. 
Coming from a place in Wyoming named Rawlins, Wyoming, this 
young man found his way to Harvard and then Yale Law School, 
and from Yale Law School moving to work for a great judge known 
to all of us who practiced law in Denver, Zita Weinshienk, and 
clerked for her for a period of 2 years. She told me just last 
week she thought Philip Brimmer was one of the very best law 
clerks who had ever worked with her while she served in that 
position of U.S. district court judge.
    He went on to work with a national law firm, Kirkland & 
Ellis, and then left Kirkland & Ellis because he reached a 
point in his own life where he decided that the road that he 
wanted to take was one of public service. He went on to 
distinguish himself in the positions in the Denver District 
Attorney's Office that Senator Allard has mentioned. His bosses 
there, both current Democratic Governor Ritter for the State of 
Colorado as well as the Democratic District Attorney for Denver 
Mitch Morrissey, have given him their absolutely highest 
ratings. He is a star in the work that he did on behalf of the 
people that he represented in the Denver District Attorney's 
    Then moving to the United States Attorney's Office, he 
worked on a number of very important and different cases, but 
it led to the point where he became the chief of the Special 
Prosecutions Unit and distinguished himself there as well. He 
is joined today by his wife and his brother in the audience.
    I would say in conclusion, Mr. Chairman, two things.
    First, I think the common theme among both Phil Brimmer and 
Christine Arguello is they are the kinds of people that we 
should be supporting for positions in our Federal judiciary 
system. They are lawyer's lawyers. They understand the 
importance of fairness and judicial temperament and the rest of 
the qualities that make great judges. I appreciate their 
willingness to sacrifice the other route that they could have 
taken, which is to make a lot more money in the private sector, 
to come and be servants of the public.
    Second, Mr. Chairman, once again to you especially for 
holding this hearing at this point in time in our political 
season to address what is a judicial emergency in the State of 
Colorado, I am very, very personally appreciative of your 
efforts in doing so, and I appreciate the cooperation of 
Senator Specter in getting this done.
    Thank you very much, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Specter.
    Senator Specter. I have the pleasure of introducing 
    Chairman Leahy. Just before we do this, I also know that 
both Senator Allard and Senator Salazar have other committees 
meeting, and if you want to leave, I am sure it will not be 
seen as any snub of the two fine nominees, who I suspect are 
not going to have that difficult a time before the Committee 
    Senator Allard. Thank you, Mr. Chairman.
    Chairman Leahy. I thank you both very much for being here.
    Senator Salazar. Thank you, Mr. Chairman.
    Chairman Leahy. Go ahead.


    Senator Specter. Thank you, Mr. Chairman. I have the 
pleasure to introduce Gregory G. Garre to the position of 
Solicitor General of the United States Department of Justice. 
Mr. Garre comes to this position with a very distinguished 
academic record, distinguished professional record, and very 
extensive service already in the Solicitor General's Office.
    Academically, he graduated cum laude from Dartmouth in 
1987; his law degree with high honors from George Washington 
University Law School; Order of the Coif; editor-in-chief of 
the Law Review there. After graduation, he clerked for the 
chief judge of the Third Circuit, Anthony Scirica, and then for 
Chief Justice Rehnquist. He has worked with the prestigious law 
firm of Hogan & Hartson where he became a partner and served 
there for 5 years in that capacity. He has been with the 
Solicitor General's Office as Principal Deputy Solicitor 
General, and most recently Acting Solicitor General. He has had 
23 cases before the United States Supreme Court, which is quite 
a record and background for coming to this position.
    So I am pleased to introduce him, also to note that he has 
Pennsylvania connections, was born in Bryn Mawr, Pennsylvania, 
and his grandparents live there.
    Chairman Leahy. Where is that? Where is Bryn Mawr--oh, Bryn 
Mawr. I know where Bryn Mawr is. Sorry.
    Senator Specter. It is a little hard to understand Bryn 
Mawr with either a Kansas or a Vermont accent.
    When I first came to Philadelphia years ago and met 
somebody from Bryn Mawr, I spelled it B-r-i-n-m-a-r, and I soon 
found out how to spell Eastern style.
    Senator Specter. Mr. Chairman, before excusing myself, I 
want to ask consent to enter into the record a statement by 
Senator Martinez for the nomination of Mary Scriven.
    Chairman Leahy. Without objection. Senator Martinez had 
asked me, too, on that, and that will be part of the record. 
Thank you.
    Well, then, if nobody else has anything to say, I would ask 
Mr. Waddoups, Mr. Anello, Ms. Scriven, Ms. Arguello, Mr. 
Brimmer, and Mr. Garre to come forward. Before we start, if you 
would all stand and raise your right hand and repeat after me. 
Do you solemnly swear that the testimony you will give in the 
matter before us will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Waddoups. I do.
    Judge Anello. I do.
    Judge Scriven. I do.
    Ms. Arguello. I do.
    Mr. Brimmer. I do.
    Mr. Garre. I do.
    Chairman Leahy. Let the record show that all responded in 
the affirmative. Please sit down.
    As has been noted, Mr. Waddoups is a partner at the Salt 
Lake City, Utah, law firm of Parr, Waddoups, Brown, Gee & 
Loveless; prior to that at O'Melveny & Myers. We have had over 
the years a number of judicial nominees who worked at O'Melveny 
& Myers who have come before us.
    I also had the pleasure a few years ago at the opening of 
the new Air and Space Museum meeting General Myers, who was the 
original partner, just recently passed away. He was at that 
time about 90 years old. He had flown his own airplane in for 
the event, and he was ramrod straight. That has absolutely 
nothing to do with your hearing, but an interesting bit of 
    Mr. Waddoups., please go ahead.

                      THE DISTRICT OF UTAH

    Mr. Waddoups. Thank you, Mr. Chairman. It is an honor to be 
here, and I look forward, if confirmed, to serving in this 
    I would like to introduce my wife, Vickie Waddoups, and my 
son, Doug Waddoups, who are here with me.
    Thank you, Senator.
    Chairman Leahy. Thank you, and I should have asked you to 
do that to begin with. I will, when each one comes, I will ask 
for their names, because someday when somebody goes to the 
Waddoups archives, they will note in our official record that 
you were there.
    Incidentally, on introducing everybody, you will be given a 
chance to see the transcript and to add names or correct 
spellings or anything else, because it is not a bad thing to 
have in the record.
    Please go ahead, Mr. Waddoups. Did you want to add anything 
    Mr. Waddoups. No; just that I am honored to be here, am 
thankful for the Committee to consider this hearing at this 
time, and I look forward to being able to respond to any 
questions you may have.
    [The biographical information follows.]

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    2Chairman Leahy. Let me ask you this: The courts, the 
Federal courts, is the only undemocratic branch in our system, 
and it was intended to be that way. They are not elected. They 
are appointed, given lifetime appointments--entirely different 
from the other two branches of our Federal system. If you go 
all the way back to reading the Federalist Papers on there, it 
is to give them the independence without fear or favor of 
either political party.
    I have always looked, when I am going to vote on a judge--I 
spent a number of years in a courtroom, as many of us did. I 
ask myself, this person, if they are Federal judge, would I 
feel comfortable coming into their court, whether I was 
plaintiff or defendant, whether I represented somebody rich or 
poor, no matter what my political background or my race or my 
gender or my religion, would I feel that that judge will hear 
the case without any preconceived notion about either the 
attorney or the litigant? Could you give those assurances, that 
you would look at a case and say whether this person is a 
plaintiff or defendant, criminal, government, or whatever, you 
would look at that case and say, ``You are going to get the 
fairest trial you could ever have before me'' ?
    Mr. Waddoups. Without any qualification at all, I can give 
you that representation. I can tell you that as a litigant, 
when I appear in courts with clients, that is what they are 
looking for. They want a court that will hear their case 
without bias and without prejudice. That is a principle on 
which I am firmly committed and would assure you that that is 
exactly what I would attempt to do to the best of my ability.
    Chairman Leahy. And do you have any background that can 
show that kind of equal respect to people no matter what their 
gender, no matter what their background?
    Mr. Waddoups. I would hope--I think Senator Hatch referred 
to the work I have done with my colleagues. I believe I enjoy a 
reputation among the lawyers in our community as having treated 
everyone with respect. Part of my service has been to serve on 
the Board of the Family Support Center in Salt Lake City, in 
which our principal mission was to look out for mothers who are 
in abusive situations or who are abusive with their children. I 
found that to be meaningful and important service. I think that 
kind of service needs to continue over and be carried on the 
    Chairman Leahy. Also, the courts serve as a check on either 
a runaway executive or a runaway legislature. We had a memo for 
a while, a secret memo, that once it came to light, it was 
withdrawn by the White House, which said basically the 
President could put people outside the law on questions of 
torture. He could say that the law would not apply to him or 
anybody he said it does not apply to.
    Do I have your assurances that you feel the laws of this 
country apply to everybody, whether it is a Federal judge, a 
U.S. Senator, or a President or anybody else?
    Mr. Waddoups. Without any question at all.
    Chairman Leahy. And you know Federal judges have great 
abilities that they--on questions of conflicts of interest, 
basically they have to make this decision, whether they recuse 
themselves. What would be the kind of thing, do you believe, 
would require a recusal? What kind of case do you think that 
might come before you that would require you to just say, look, 
I should not sit on this case?
    Mr. Waddoups. I would be guided by the Rules of Judicial 
Conduct, but let me give you some illustrations that would seem 
clear to me.
    Any kind of case that came before me from members of my 
existing law firm, I would be required, at least for a number 
of years, to recuse myself. I would also feel that I would 
recuse myself if there were cases in which adversaries, lawyers 
who have been advocates of mine in the recent past--that would 
be a shorter period of time, but I would not want anyone to 
feel that because we had been opposite each other they somehow 
were mistreated. And the same with recent clients.
    Beyond those kinds of clear conflicts, as guided by the 
Rules of Judicial Conduct, I think a judge has a responsibility 
to hear the cases that come before him, whether they are hard 
or easy. And I do not think recusing yourself simply because of 
the nature of the case would be appropriate. But if there is an 
appearance that someone feels that they may not be treated 
fairly because of a past relationship, I would recuse myself.
    Chairman Leahy. Emphasize that last one just a little bit. 
You feel if the appearance would be that because of a Judge 
Waddoups, this plaintiff or this defendant might not be treated 
fairly, you feel that that is cause for recusal?
    Mr. Waddoups. If there was a factual basis in terms of 
facts, somebody that was an adversary, somebody that was on the 
opposite side of me in a case before, somebody whose client was 
opposed to a client of mine, those kinds of situations. Simply 
an unsupported factual assertion would not be sufficient.
    Chairman Leahy. I understand. But what you are saying--and 
I do not want to put words in your mouth, but what you are 
saying is that your use of recusal would be also to support the 
integrity, the impression of the Federal court as being 
independent and open-minded to the American public. Is that 
    Mr. Waddoups. Yes, sir.
    Chairman Leahy. I must say that I find this so important, 
because, I mean, a court cannot--a court does not have an army 
or anything else. It has to rely and the whole system breaks 
down if it cannot rely on the respect the American people have. 
I have tried an awful lot of cases. I am sure my colleagues 
here have. But sometimes you win and sometimes you lose, but 
you have to be able to say to your clients, you have to be able 
to say to the public, ``But it was a fair trial.'' And I think 
that is very important.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. I appreciate 
your courtesy and your kindness and your effort to bring these 
folks before the Committee, get them through the Committee, 
and, of course, to the floor. And I am going to help you every 
step of the way.
    This is an impressive group of nominees, and I want to 
commend each and every one of you for being here today. It 
means a lot to me to have good people on the bench, and, Mr. 
Garre, you are terrific. You have the support of Democrats and 
Republicans in this town and across the country who have 
watched you in action and know how good you are.
    Having said that, I just want to say that we are very proud 
to have Clark Waddoups here. We know he is one of the great 
lawyers in this country. We know that he has an impeccable 
reputation. He is a leader in one of the great law firms in 
Utah, and I personally have a great deal of fondness and 
admiration for him. And I expect him to become one of the great 
district court judges in this country.
    With regard to Mr. Garre, I hope we can confirm Mr. Garre 
to the position of Solicitor General by the time the Supreme 
Court begins its hearings when it comes in on October 6th. The 
4 months that would remain in this administration would 
actually be more than half of the time the Supreme Court 
devotes to oral arguments, which conclude in May. Mr. Garre is 
eminently qualified, highly respected, and I see no reason why 
he could not begin the Supreme Court's term with the public 
backing of the executive and legislative branches.
    I ask consent that a letter by a bipartisan group of former 
Solicitors General on behalf of Mr. Garre's nomination be 
entered into the record, Mr. Chairman.
    Chairman Leahy. Without objection.
    Senator Hatch. Let me quote small portion of that letter. 
``We have worked with Mr. Garre in the Office of Solicitor 
General or as co-counsel in cases before the Court. We have 
observed at close range his vast legal talents, and we are 
unanimous in our conclusion that by any measure he has been an 
extraordinarily effective advocate on
    behalf of the United States. Mr. Garre's nomination is in 
keeping with the finest traditions of the Office of Solicitor 
    I certainly agree with that assessment, and I commend you 
for the reputation that you have been able to develop over 
these years, and it is a well-earned reputation.
    Let me turn to the judicial nominees. By my count, the 
district court nominees before us today have more than 90 
combined years of private practice experience. That is pretty 
impressive. As somebody who has been on this Committee for 32 
years and has held an awful lot of these hearings, this is an 
impressive group of people. That does not count experience as 
prosecutors and judges, and that means that each of you has 
seen many State and Federal judges do what they do.
    Now, Mr. Chairman, I do not have any questions because I 
have looked at the resumes and the information about these 
terrific people who are before us today. I am going to support 
every one of you, and I hope that we can do this quickly and 
get you through and confirmed quickly. And, above all, Mr. 
Garre, I hope you can continue doing the excellent job you have 
been doing, only as Solicitor General, at least during the 4 
months that remain in this administration, and hopefully even 
after, regardless of who wins the election come this November.
    Mr. Chairman, I personally want to thank you. It is tough 
being Chairman of this Committee. It is a very partisan 
Committee in many respects. When I was Chairman, I had a very 
difficult time from time to time, and I understand how 
difficult it is, and I am very grateful that you would hold 
this hearing today and be willing to push these people.
    Chairman Leahy. Thank you very much.
    Senator Whitehouse, did you have anything?
    Senator Whitehouse. Yes, if I may. I have some questions 
that I would like to ask of Mr. Garre, and let me preface them 
by assuring my colleagues that I do not intend to object to Mr. 
Garre's nomination. But as the Chairman indicated earlier, we 
have had a very unfortunate episode in the history of this 
country and in the history of the Department of Justice that 
has largely come to its conclusion with the replacement of the 
entire leadership of the Department of Justice, to which the 
Chairman referred.
    My concern is that the cleanup is not complete. As I have 
indicated in many other forums, my concern is that the Office 
of Legal Counsel in particular remains what I have called the 
``George Bush Little Shop of Legal Horrors.'' And while I 
applaud Attorney General Mukasey for many of the steps that he 
has undertaken to set the Department of Justice right, I do 
believe--and I am not, of course, Mr. Garre, asking you to 
accept this belief. I am just stating it to you. I do believe 
that the OLC remains a very troubled part of the Department of 
Justice into which the broom that has cleaned up so much else 
of the Department of Justice still needs to sweep.
    You and I probably disagree on a great number of legal 
issues, and we would probably have a good academic and 
intellectual combat were we arguing cases against each other. 
But I think we also agree that there is a basic level of legal 
competence and scholarship that, irrespective of what the 
position you choose to take in a case is, is a baseline. And 
you should never go below that, and you should certainly never 
go below that if you are the Department of Justice of the 
United States of America. And I think that after the 
unfortunate episode that we have been through, you will 
probably also agree that every officer of the Department of 
Justice, no matter what their station, has an interest in 
seeing to the integrity of the entire Department of Justice. 
And it is off those two principles, to which I see you nodding, 
that my concern about OLC--it is on those two that the concern 
    I have recently had an exchange with a member of the 
Department in the Intelligence Committee on which I serve. 
Regrettably, that transcript is classified. My efforts to have 
it be declassified have been resisted by the administration, 
are unsuccessful. We are still asking for an explanation of 
what it is about this exchange that contains anything that 
would reveal any sources or methods of intelligence gathering. 
I think that the denial of it is, frankly, just a desire to 
keep the issue out of the public and stands on no legitimate 
national security footing. But, in any event, we are still 
engaged in that, and as a result, I cannot in this forum even 
tell you the name of the person who I had the exchange with. 
But if you ask within the Department, it will be easy--it is 
perhaps even obvious.
    I would like to ask you--I know how busy you are going to 
be. I know what it is like to be an appellate attorney with a 
vast amount of reading to do. I would ask you to take a look at 
that transcript--I am sure you can get clearance to do it--and 
to take a look at the torture memoranda that the OLC wrote, 
specifically focusing on its failure to treat with a case named 
United States v. Lee, which is a Fifth Circuit Court of Appeals 
decision in which the court, in a prosecution brought by the 
Department of Justice, on the conviction of a Texas sheriff and 
his deputies for waterboarding prisoners to get convictions, 
found over and over in the opinion that this technique was 
torture--referred to it as ``water torture.'' The word 
``torture'' I think appears eight times, sometimes quoting the 
Government's own indictment, sometimes using the court's own 
    For the life of me, I cannot understand how in the lengthy 
opinions that support the administration's position on torture 
which went so far afield legally as to quote standards out of 
health care reimbursement statutes, they were unable to find or 
unwilling to discuss a case bang on point, discussing the 
procedure at issue, calling it ``torture,'' by a circuit court 
of appeals of the United States of America, a court in which 
the Department of Justice itself was the prosecutor and the 
proponent of the theory that this was torture. To me, that 
shows that something went seriously, seriously awry.
    In the context of that, I would like you to also take a 
look at the treatment of a decision called United States v. 
Hilldow, which involved a course of abuse at the hands of the 
Marcos regime of an American citizen. The course of treatment 
included waterboarding. The course of treatment was referred to 
as torture, and the distinction that was drawn was that it was 
a course of treatment that included other forms of abuse than 
waterboarding. And, therefore, the case could not stand for the 
proposition that waterboarding alone was torture.
    Well, there stands Lee. I do not see how from a pure point 
of craftsmanship you could ever write an opinion on that 
subject without addressing Lee. I submit to you that if you 
wrote that opinion to the United States Supreme Court as a 
brief and left out a case that on point, it would make the 
recent episode with respect to the omission of the statute on 
the death penalty look like child's play.
    I am not going to ask you any more than that. Have a look 
at it. Don't tell me--don't talk publicly, but let ye Deputy 
Attorney General, let your Attorney General know what your 
opinion on that subject is. If you agree with me that there is 
no legitimate standard of advocacy and scholarship that would 
allow that case to be omitted, then I think that is a sign we 
need to take a second look at OLC. And I frankly do not see how 
reasonable lawyers who are well trained and professional 
frankly could see this any other way. So that is my request to 

                      OF THE UNITED STATES

    Mr. Garre. Thank you, Senator, and thank you, Mr. Chairman, 
for including this in this hearing. I feel very privileged and 
honored to be here.
    Senator, I will absolutely look at the items that you asked 
me to look at and follow through in the manner that you 
    Senator Whitehouse. I appreciate that.
    Mr. Garre. I also agree with you wholeheartedly that the 
integrity of the Department of Justice and the integrity of the 
lawyers who work in the Department of Justice is critical for 
the American people and for the duty that we have for those of 
us privileged enough to work there.
    A former Solicitor General, Solicitor General Soboloff, 
said that the duty of the Solicitor General's Office and the 
lawyers in that office is not simply to advocate on behalf of a 
client but to do justice. And I certainly agree with that. And 
if I were privileged enough to be confirmed, that is something 
that I would have foremost in my mind in carrying out my 
responsibilities with respect to all matters, including the 
matters that you referred to.
    Senator Whitehouse. I appreciate and accept that. I thank 
    Mr. Garre. Thank you, Senator.
    Chairman Leahy. If I actually could follow up on that just 
a little bit, because the Solicitor General's Office is very 
unique. It has the capacity as friend of the court. It is 
sometimes referred to as the ``tenth Justice,'' and it has to 
speak and lay out what is best.
    Can you assure us that a Solicitor General, whether you had 
a Democrat or Republican in the White House, you would not 
serve a partisan interest but, rather, a judicial interest or a 
judicious interest in your work as Solicitor General?
    Mr. Garre. Absolutely, Senator. I have been privileged to 
work in the office under two different administrations, and in 
both administrations, it was made clear to the lawyers of that 
office that our duty is to represent the best interests of the 
United States, irrespective of the political administration of 
that time. And I think that is critical for the Solicitor 
General to perform his obligations to the Court and to the 
country to provide the best representation that he can, and to 
have the courts accept the candor and arguments of the 
Solicitor General as a representation of what is in the best 
interests of the United States as opposed to the political 
interests of any particular time.
    Chairman Leahy. I think we would all agree with that 
answer, but let us just go to a specific. As Principal Deputy 
Solicitor General, you signed the amicus brief in Ledbetter v. 
Goodyear. And for those who are not aware of that, that was a 
case where Lilly Ledbetter for nearly two decades was paid a 
lot less than her male counterparts. As a supervisor, she was 
paid less and did not realize it until after she had left 
employment. But in the brief you signed, you contended she was 
not eligible for Title VII protection against discriminatory 
pay because she did not file her claim within 180 days of their 
repeated discriminatory pay decisions, even though, of course, 
she was not aware of the pay decisions. And that view 
contradicted the position of the Equal Employment Opportunity 
Commission, the EEOC. And some have called your position even 
more draconian than the Eleventh Circuit.
    Did you decide to file an amicus brief as a result of a 
request of the EEOC, which obviously disagreed with that 
    Mr. Garre. Senator, the determination to file an amicus 
brief in that case was made in the same manner it is in any 
case, and it is a very collaborative process where we, the 
Solicitor General--
    Chairman Leahy. Was the EEOC involved in that collaborative 
    Mr. Garre. It was, Senator.
    Chairman Leahy. And did the EEOC agree with your brief?
    Mr. Garre. I believe, as was indicated in the brief, and 
certainly as made clear through the briefings, that the EEOC 
had by regulation or policy statement taken a contrary 
position. The position that we laid out in the brief we 
believed was consistent with prior positions that the Supreme 
Court had taken in a number of decisions.
    Chairman Leahy. Who made the final decision to file an 
amicus brief?
    Mr. Garre. The final--
    Chairman Leahy. I mean, this was Ledbetter v. Goodyear. It 
was not Ledbetter v. the United States. Why was the decision 
made to file an amicus brief?
    Mr. Garre. Senator, the Solicitor General makes that 
determination. He looks to the interests of the United States 
in a particular question pending before the Court if the United 
States is not a party, and he looks to whether or not 
reasonable arguments can be made in support of that position.
    The Federal Government has both the responsibility to 
enforce the civil rights laws, including Title VII, and is also 
an employer who is subject to suit under Title VII.
    Chairman Leahy. As you know, there has been some very 
strong criticism--in fact, we came, I think, within about one 
vote of overturning it, in fact, of overcoming a Republican 
filibuster to restore rights for subsequent people in a 
situation like this. But what I cannot seem to understand is 
you have a company that hides the fact that they are paying a 
woman less. The matter is up in litigation, and somebody in the 
U.S. Government steps in to say we have got to protect that 
company, not the woman who was being paid less all those years. 
You write the brief. I still do not fully understand why this 
administration, why your office, why it was so necessary to 
weigh in on behalf of Goodyear and not this woman who was given 
such a bum deal.
    Mr. Garre. Certainly, Senator, no one--and certainly no one 
in the Department of Justice--condoned discriminatory practices 
that were alleged in that case. The legal principle that we 
were focused on was when does the statute of limitations begin 
to run when someone has suffered a discrete act of 
    Chairman Leahy. But having taken the position the EEOC had 
taken, and you taking a contrary position, I mean, you could 
just as well have just stayed out of the case. Is that not 
    Mr. Garre. That is always an option, Senator, that the 
Solicitor General has. The Solicitor General of the United 
States had participated in a number of prior cases involving 
the same--
    Chairman Leahy. Who made the final decision?
    Mr. Garre. The Solicitor General did, Senator. The 
Solicitor General at that time was Paul Clement.
    Chairman Leahy. Was there any influence from the White 
House or from the Attorney General in making that final 
    Mr. Garre. Senator, in every case there is input from all 
interested components.
    Chairman Leahy. Was there in this case from the White House 
and the Attorney General?
    Mr. Garre. I am not personally aware of that. The Solicitor 
General would make a final determination in that case, 
listening to all interested parties, because we are interested 
in representing the views of the United States to the best we 
can, taking into account all different interests of the 
interested agencies and components.
    Chairman Leahy. Even though in this case the views were 
contrary to the views at EEOC, which is the part of the 
Government that would normally be involved in this.
    Mr. Garre. That is correct, Senator. And certainly it is 
not uncommon that different components within the Department of 
Justice or even different agencies may have different 
perspectives, regulatory perspectives or enforcement 
perspectives or policy perspectives.
    Chairman Leahy. Some of us were concerned that this may 
have been political, including to the point when Ms. Ledbetter 
came here to testify, and her testimony was cut off by a 
Republican objection. But I just throw that out for what it is 
    [The biographical information follows.]

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    2Chairman Leahy. Let us go to Mr. Anello. I want to mention 
to you that both Senator Feinstein and Senator Boxer told me of 
their strong support for you and that you have their support. I 
would ask you a similar question to what I asked Mr. Waddoups. 
You are already a superior court judge in San Diego, and you 
were a partner with the San Diego law firm of Wingert, Grebing, 
Anello & Brubaker and deputy city attorney. You were a captain 
on active duty in the United States Marine Corps, as the father 
of Lance Corporal Mark Patrick Leahy. That does not influence 
me a bit.
    Judge Anello. I hope we did not meet back then. Did we?
    Chairman Leahy. No. He is now a former Marine. As you know, 
there are no ex-Marines, only former Marines. Special Courts 
Martial Military Judge, graduated from Bowdoin, graduated from 
Georgetown University Law Center, where I did. Do you have 
members of your family here today?


    Judge Anello. I do, and thank you very much, Mr. Chairman, 
and I also would like to express my personal appreciation to 
you and the other members of the Committee for having this 
hearing, especially at this late date in the session. I know 
the Senate is busy, obviously, these days, to put it mildly, 
and I most appreciate the opportunity to be here and appear 
before you today.
    I do, with your permission, have folks here that I would 
like to introduce, if I might at this point.
    Chairman Leahy. Please do.
    Judge Anello. Perhaps they could each stand as I announce 
them. First of all, my wonderful wife, Pam, who has put up with 
me for 35 years, is here--thankfully, I should add. We have 
with us also, thankfully, our three sons, starting with the 
oldest: Andy is here with his friend, Jane McCormick; and No. 2 
son by age is Dan, he is here; and our youngest son, Chris, is 
    Also, I am pleased to have here today my sister, Diane 
Anello, who has also been a source of wonderful support to me 
over the years. And, in addition, we have her boss from the 
Aspen Institute, former Iowa Senator Dick Clark.
    And last, but not least, we have a very--
    Chairman Leahy. I served with Senator Clark, and I did not 
see him there. I should have recognized that shock of white 
hair back there. Dick, it is always, always good to have you 
back here.
    Judge Anello. And last, but not least, we have a very dear 
friend of ours, Liz Armstrong, from California, recently having 
moved to the area, and it is a pleasure to have her here today 
    Thank you.
    [The biographical information follows.]

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    6Chairman Leahy. Well, if I might ask the same question I 
asked before--and it is the sort of thing that I think all of 
us have in mind when we vote on a lifetime judgeship. This is 
an area where you are outside of politics. It is the 
undemocratic part, and rightly so, the undemocratic branch of 
our three branches of Government.
    If you walk into a courtroom, if you have any respect for 
our Federal courts around the Nation, you have to walk in and 
think, okay, I am going to be treated the same as the person on 
the other side; my race, my color, my creed, plaintiff, 
defendant, wealth, non-wealth, it is not going to make a 
    Can you give that assurance that when somebody comes in and 
sees you sitting there as the judge, they are not going to say, 
``We are in trouble,'' but, rather, ``We are going to get a 
fair hearing'' ?
    Judge Anello. I can certainly give you that assurance 
without qualification, Senator. I have endeavored to do that 
through the 10 years plus that I have been sitting on the State 
court, and should I be fortunate enough to be appointed to this 
position, I would hope to continue that. So I certainly agree 
with that and those sentiments 100 percent.
    Chairman Leahy. Have you had occasion to do things where 
you would show your commitment to equal treatment of people?
    Judge Anello. Well, I have. Like, I would say, most 
lawyers, I have volunteered to perform legal services for 
indigent people as a public service. In my many years in the 
military--I remained in the Marine Corps Reserve after getting 
off active duty--one of our missions was to provide legal 
assistance to the young semi-indigent, unfortunately, men and 
women of the Marine Corps. And we would go to the local bases 
on Saturdays. With some notice they would show up. We would do 
the best we could to help them deal with their personal and 
legal problems. So that is one thing that we did often over the 
years throughout my entire military reserve career.
    Chairman Leahy. I like to think the country has reached a 
point where people are treated the same. I think of the stories 
I remember from my maternal grandparents when they emigrated to 
this country from Italy, and having difficulty first with the 
language and treated differently. And some of the things they 
had to put up with even as they established a business and then 
helped many others who were not able to get the kind of--or who 
were being treated much the same. I like to think in our State 
that is no longer the case. But I think that immigrants' rights 
are extremely important. You do not think of Vermont so much as 
being a State with that, although we share a border with 
Canada. My parents-in-law emigrated from Canada, had to learn a 
new language, as did my grandparents and my mother.
    You are in San Diego. One only needs to look at the map. 
Can you assure people who come into your court, the Federal 
district court, that they are going to be treated fairly, 
whether it is an immigration or a civil case?
    Judge Anello. I can certainly give you that assurance, 
Senator. You are correct. Obviously, we are a border State. We 
have immigration issues. We have not dealt with them so much in 
the State court. Certainly, if I were fortunate enough to be 
confirmed to the Southern District Court, we would deal with 
those issues on a more daily basis. But certainly you have my 
assurance that, if confirmed, I would agree 100 percent with 
those sentiments and act accordingly.
    Chairman Leahy. And you heard Mr. Waddoups' comments before 
about the need to recuse oneself to preserve the integrity of 
the court. Now, you might have a case that would come to 
Federal court for post-conviction relief or something like from 
the court you now sit on. That should be fairly easy, I would 
assume. But do you agree with what Mr. Waddoups said about 
protecting the integrity of the court and the appearance of 
    Judge Anello. I do absolutely, and the appearance aspect of 
that, of course, is most important for the citizenry to retain 
their respect for the courts. Obviously, the appearance is 
important. Again, I have faced those issues over the past 10 
years, and I have not found it difficult. But as Mr. Waddoups 
says, if someone appears before me who is a former client, that 
is pretty easy; a former law partner, that is pretty easy. 
Where it gets a little dicey is someone who perhaps is a 
friend, a casual friend. So we try to draw lines there, make 
whatever disclosures are necessary. But as he also indicates, 
and as I agree, we also are duty-bound and required to try 
cases that come before us unless there is a real reason to 
    Chairman Leahy. Well, disclosure is always a very good 
thing. I mean, you can--certainly in my own years of practice, 
we would have the kind of friends or associations, a neighbor 
or whatever, and matters that would come up. And when the court 
has made the disclosure, it is not unusual to have the lawyers 
on both sides say we have discussed this with our clients and 
we have no problem. And it certainly takes care of the problem 
later on when somebody says, ``Well, wait a minute. I lost.''
    Senator Hatch, did you want to--
    Senator Hatch. No. Thank you, Mr. Chairman.
    Chairman Leahy. And I would assume you would say the same 
to the earlier question that no one is above the law, not the 
President, not a judge, not a U.S. Senator.
    Judge Anello. Absolutely. We have a rule of law, not a rule 
of man. Absolutely, I agree 100 percent.
    Chairman Leahy. Thank you very, very much.
    Ms. Scriven, we have already put the letter of support in 
from Senator Martinez for you. You spent 11 years serving as a 
magistrate judge in the U.S. District Court for the Middle 
District of Florida, taught contracts, banking law, associate 
professor at Stetson University College of Law; partner at the 
Tampa, Florida, law firm of Carlton Fields; graduate of Duke, 
Florida State.
    Do you have members of your family here with you?


    Judge Scriven. Thank you, Senator Leahy. Yes, I do. 
Chairman, I have with me almost my entire family. I have my 
parents, who are here from Georgia: Reverend Marshell Stenson 
and Dr. Mary Stenson, if they would stand.
    I have my younger brother, Joel Stenson and his wife, 
Kartika Stenson.
    I have my dear friend, Jaye Ann Terry; a friend of the 
family and a colleague, Fred McClure; and a young guy that my 
husband has mentored, Romeo Domdii Cliff, who is also here. He 
lives here in D.C.
    And last, but not least, I have my immediate family. I have 
my daughter, 15-year-old Sarah; and Charles, who is enjoying a 
day out of school but getting an education nonetheless.
    Chairman Leahy. I bet you he hated to miss school today.
    Judge Scriven. And I have my husband of 20 years and my 
best friend, Lansing Scriven, who is an attorney in Tampa, 
    Chairman Leahy. Thank you very much. I appreciate that. Did 
you want to give any opening statement?
    Judge Scriven. I just want to say, as my colleagues have 
already said, that I am honored and humbled by the opportunity 
to be here. I thank the Chairman and the Committee for 
convening this hearing. I thank the home-State Senators, 
Senator Martinez and Senator Nelson, for working together 
across lines to bring this nomination forward. And I thank the 
President for nominating me for what I hope will be a 
confirmation to serve as United States District Judge for the 
Middle District of Florida.
    [The biographical information follows.]

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    3Chairman Leahy. Well, I appreciate that, and both Bill 
Nelson and Mel Martinez have talked to me privately in support, 
doing, as I said, what Senator Hatch and Senator Bennett have 
for Mr. Waddoups, and the Senators from California with Judge 
    Let me ask you the same thing. I walk into your court as a 
litigant. Can I look at a Judge Scriven--and you have your 
reputation as a magistrate judge, and I have gone through those 
cases. Can I look at you and say, ``I am going to be treated 
the same no matter who I am, rich, poor, Democrat or 
Republican, white, black, Hispanic, whatever, male, female, 
plaintiff, defendant, am I going to be treated the same'' ?
    Judge Scriven. There is no question, Senator, that you are 
going to be treated the same without respect of who you are, 
and I think there is a great deal of assurance in the context 
of my consideration here, because I have come to you as a 
candidate from a nonpartisan, bipartisan judicial nominating 
committee that has presented my name forward for consideration.
    In addition to that, I have 11 years on the bench, and as a 
magistrate judge, you do not serve a lifetime term. You get 
terms. And I served one term, and then I had to be questioned 
and evaluated by the people who had come in front of me, and I 
had unanimous approval from the Retention Committee after an 
extenuous review in the community for the service that I had 
provided to the court. And I was humbled and challenged by the 
respect that people had shown as part of the process.
    And so, yes, I think anyone coming before me could feel 
confident that they would be given fair and just treatment 
under the law.
    Chairman Leahy. Judge, I looked at that retention, and I 
must admit I was impressed with it. Do you have any question on 
being able to recuse yourself? It would be an obvious case if 
your husband's law firm--
    Judge Scriven. He would be grateful that I would recuse 
    Chairman Leahy. You do not want somebody coming forward in 
the court and instead of calling you ``Judge,'' and they call 
you ``Honey,'' or something like that.
    Judge Scriven. He calls me ``Your Honor'' at home, too.
    Chairman Leahy. I do not even want to get into that. I do 
not get called ``Senator'' at home, let me tell you right now.
    Judge Scriven. No, seriously, Senator, I have faced the 
question of recusal throughout my tenure as a magistrate judge. 
I recused from my law firm of Carlton Fields that I had 
practiced for years, for the first 5 years of my tenure as a 
magistrate judge. And if my husband has cases before me, or his 
firm does, or if any--he serves, for example, on the board of 
the Tampa General Hospital. I do not handle cases that the 
hospital handles. And, more importantly, as I think you have 
indicated, it is not just the impropriety of serving on cases, 
but the appearance of impropriety that courts must observe, 
because lay people, more than lawyers, look to what is 
happening in the court and how judges comport themselves. And 
if we do not avoid the appearance of impropriety, it sort of 
falls on deaf ears when we occasionally recuse ourselves.
    Chairman Leahy. And I think the appearance--the public has 
to--we went through this, and I do not mean to be picking on 
either Justice Scalia or Vice President Cheney. But I remember 
the dispute. Senator Lieberman had made the original complaint 
where Vice President Cheney and Justice Scalia were going 
hunting together at a time when a case involving Vice President 
Cheney was before the Supreme Court. And I think you have to--
and courts get attacked, ofttimes unfairly, just because 
somebody disagrees with an opinion. To overcome those attacks, 
we have to be able to say these courts are impartial. We have 
had Members of Congress who have said we should impeach these 
judges because we disagreed with this decision. Of course, 
maybe somebody on the other side disagreed with other judges. 
And the reason that law is somebody sent out a press release 
but goes no further is that people respect our Federal judges 
and respect the impartiality of it. And I think that everybody 
who comes on the Federal bench has an enormous responsibility 
for that.
    I have had the honor of being able to recommend both 
Democrats and Republicans to various Presidents to go on the 
Federal bench from our State. But the point I have made in my 
reviews of every one of them: Can you be, will you be 
    Now, we are a very small State, and if you are anything but 
impartial, it becomes pretty obvious very quickly. You are 
probably the fastest-growing State or one of the two fastest-
growing States in the country, but it is still important 
because many people, the only time they will ever know about 
the Federal courts is when they come before you. And, 
obviously, this is directed at all of you because--and I am 
sure you all feel that way.
    Did you have anything, Orrin?
    Senator Hatch. No. I am just grateful to all these folks 
for being willing to serve, and I think we ought to introduce 
Mr. Garre's family as well, if you would.
    Chairman Leahy. Mr. Garre, we questioned you, and you did 
not get a chance to mention your family, as Senator Hatch just 
pointed out. Would you, please, for the Garre archives?
    Mr. Garre. Thank you, Mr. Chairman. I would be thrilled to 
do that.
    I am very proud to say that my wife, Lorane Hebert, is here 
today, and--
    Chairman Leahy. They put you way in the back out there.
    Mr. Garre. Our two children: our little daughter, Natalie, 
who is going to be 3 in October; and our newest member, Sawyer, 
who is going to be 3 months later this week, who I think just 
wheeled in. They are really the reason I am here today, and my 
    I am proud to say that my parents, Sam and Maryjo Garre, 
are not only here today, but celebrating their 47th wedding 
anniversary today.
    Chairman Leahy. Congratulations. My wife and I celebrated 
our 46th when we were in Denver at the convention. It was not 
quite the way we normally would, but youngest son, whom I 
mentioned earlier is a Marine--a former Marine--is now a pilot 
for a large corporation, their jets--he flew a number of their 
executives out and joined us for dinner on our 46th. I am 
always delighted to see people with long marriages like that. I 
will not even give Senator Hatch a point to point out that he 
has been married longer than all the rest of us--of course I 
    Senator Hatch. Well, let me just say that I really believe 
Marcelle deserves a medal for bearing this heavy cross all 
these years.
    Senator Hatch. She is a wonderful person. Elaine and I 
celebrated our 51st wedding anniversary on August 28th, so this 
is a crusty old judiciary with a lot of us being married for a 
long time.
    Chairman Leahy. Our wives are bearing the brunt.
    Do you have anybody else?
    Mr. Garre. I am very happy to say my sister flew here from 
Minneapolis to be here today, and I am grateful that many 
friends and mentors and colleagues in the Office of Solicitor 
General made time to be here today. And I am particularly 
grateful that you included me in this hearing and feel very 
privileged to be here.
    Chairman Leahy. Thank you.
    Chairman Leahy. Ms. Arguello, do you have family members 


    Ms. Arguello. Unfortunately, I did not get the news with 
enough time to--I was lucky to bring myself out. But I would 
like to--
    Chairman Leahy. But you did not object to coming out.
    Ms. Arguello. I did not object at all.
    Chairman Leahy. Would you like to put their names in the 
record just so it can be--
    Ms. Arguello. I would love to recognize them: my husband, 
Ron Arguello, husband of 34 years; my older son, Ronnie; my 
older daughter, Tiffany; my younger daughter, Jennifer; and my 
son, Kenny. And I would just like to thank them for their love, 
their support, and their patience with me.
    Chairman Leahy. Good. And you should know that we talked 
about it here, but Senator Salazar was--as I said, I think he 
has my farmhouse in Vermont on speed dial. He was calling me 
from home. He was calling me from the road. He was calling me 
elsewhere to make sure you would be here, and I committed to 
him that we definitely would.
    Ms. Arguello. Well, I definitely appreciate the fact that 
you and this Committee have taken the time in what I know is a 
very busy schedule.
    I would also like to thank Senator Allard and Senator 
Salazar and President Bush for having confidence in my ability 
to serve them well.
    [The biographical information follows.]

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    4Chairman Leahy. Well, thank you. You are one of those rare 
people that has the distinction of having been nominated by 
both a Democratic President and a Republican President. I am 
glad you are here.
    Let me ask you the same questions. You are in a State, a 
beautiful, wonderful State, but a State of great diversity in 
income, races, creed, everything else. Can somebody come before 
a court where you preside and look at you, no matter who they 
are, no matter their background or religion, gender, or 
anything else, can they look at you and say, ``Okay, if I have 
got a winning case, I win; if I do not, I lose; but it will be 
solely on what the case I have is'' ?
    Ms. Arguello. Absolutely. I believe that my reputation in 
the community for fairness and objectivity is very strong. I 
have lived my life or I have attempted to live my life by the 
Golden Rule, to do unto others as I would have them do unto me. 
And so I treat everyone with respect. And the No. 1 lesson I 
taught my trial lab students was treat everyone as if they were 
a very important person. It does not matter at what level they 
interact with them.
    Chairman Leahy. I mentioned my grandparents, and I still 
remember the details of them coming here from Italy, speaking a 
different language and having to overcome that, and eventually 
becoming one of the most respected members of the community for 
what they had overcome. Is it fair to say that nobody is going 
to have to overcome those kind of hurdles if they come before 
your court?
    Ms. Arguello. Absolutely not, and that would be very fair 
to say. I recall--although I was not an immigrant, my family 
has been in the United States for four or five hundred years. I 
was bilingual, but I remember being told not to speak Spanish 
on the playground at school and being punished for having done 
so. So I am very sensitive to those issues.
    Chairman Leahy. My wife's first language is not English, 
even though she was born here in the United States. She 
remembers that. Now, of course, it is a great advantage to be 
bilingual. I had to learn the same language when we started 
dating as teenagers because I wanted to know what her parents 
were saying about me.
    Chairman Leahy. And they still let her marry me.
    On the recusal issue, do you have any different answer than 
what has already been given on recusal?
    Ms. Arguello. I would say my answer would be exactly as 
Judge Anello had stated.
    Chairman Leahy. You could possibly have in your career at 
times when a court has to step in because everything else has 
failed--the political process and everything else has failed. 
Do you have any problem with that? I am thinking back to U.S. 
v. Carolane Products. It is now a 60-, 70-year-old case, but 
the Supreme Court held that legislation which restricts those 
political processes which can ordinarily be expected to bring 
about repeal of undesirable legislation is to be subjected to 
more exact judicial scrutiny under the general prohibitions of 
the 14th Amendment than are most other types of legislation. In 
other words, if an unfair result is coming about in 
legislation, do you believe that the court has a duty for 
stronger scrutiny of such legislation?
    Ms. Arguello. I believe if a case were to come before me 
and I were fortunate enough to have been confirmed by the 
Senate, my job would be to review the controlling precedent and 
attempt to come to a decision that would be within the rule of 
    Chairman Leahy. Senator Hatch
    Senator Hatch. I have to say that I am pleased with this 
whole set of nominees, and, frankly, I think you have covered 
the basic questions that need to be covered.
    Chairman Leahy. Thank you.
    . Now, Mr. Brimmer, you have not had a chance to introduce 
your family. I mentioned that he was chief of the Special 
Prosecutions Section in the U.S. Attorney's Office in the 
District of Colorado, and I mentioned Chief Deputy District 
Attorney in the Denver District Attorney's Office. Those of us 
who had the opportunity to be district attorneys, or as we call 
them in Vermont ``State's Attorneys,'' appreciate that; Harvard 
and Yale, obviously a great background. But we have not heard 
whether you have family members here, and I realize you are 
here on short notice, but do you have family members here?


    Mr. Brimmer. I do, Mr. Chairman, and I would like to take 
this opportunity to introduce them to the Committee.
    Chairman Leahy. Please.
    Mr. Brimmer. My wonderful wife, Dana Brimmer, is here. My 
brother Andy Brimmer is here. And my cousin Rob Wallace is also 
    Chairman Leahy. Thank you all for being here.
    Mr. Brimmer, you have been in private practice. You have 
also been a prosecutor. You could have litigants before you on 
criminal matters as well as private matters. Let us go first 
with the criminal matters. Would you be able to fairly look at 
a criminal case, even though you have been a prosecutor, would 
you be able to fairly judge it on the merits without a bias 
toward either side?
    Mr. Brimmer. Yes, I absolutely could do that. As you know 
from being a prosecutor, prosecutors wear different hats. One 
of the hats is being not just an advocate but being a minister 
of justice. And so in a role as a prosecutor, you need to look 
at fairness to the defendants in deciding whether to charge 
them, whether to offer them a plea bargain, or whether you have 
sufficient evidence to proceed. So I am confident that I can do 
that and not simply be in the role of an advocate on behalf the 
    Chairman Leahy. And you have been in private practice, and 
you have been in the prosecutor's office. Do you have any 
doubts of being able to recuse yourself if a case came up that 
might have involved directly matters that you had handled 
    Mr. Brimmer. No. In fact, if I were lucky enough to be 
confirmed, I would set up a procedure with the clerk's office 
so that I could be informed if there were any matter that my 
name is associated with from the U.S. Attorney's Office, and 
also given the fact that I am the chief of the Special 
Prosecutions Unit, if any case came from one of those 
attorneys, I would in all likelihood recuse if it seemed to be 
one that arose during the time that I was there.
    Chairman Leahy. And do you agree that no one is above the 
law? And I am thinking back to the infamous torture memo that 
we can immunize--Presidents can immunize people from legal 
action itself. Would you agree with me that no one is above the 
law? You would not be as a Federal judge. Senator Hatch and I 
would not be as U.S. Senators. And the President would not be 
and nobody else would be.
    Mr. Brimmer. I strongly agree with that, Mr. Chairman.
    Chairman Leahy. That it keeps our system of Government 
    Mr. Brimmer. Absolutely. If it were something else, then 
the system would not be fair.
    Chairman Leahy. Thank you.
    Senator Hatch.
    Senator Hatch. Again, very happy to welcome you to the 
Committee. I frankly support you very strongly, and I look 
forward to seeing you be confirmed.
    Mr. Brimmer. Thank you.
    [The biographical information follows.]
    Chairman Leahy. With this grueling part to have somebody 
show up here on short notice, especially Ms. Arguello and Mr. 
Brimmer, I appreciate you all being here. I appreciate your 
family coming. Sorry we had to take you out of school, young 
man, but--
    Chairman Leahy. If you are like my grandchildren, you 
probably did not mind that.
    We will stand in recess subject to the call of the Chair, 
and we will keep the record open, and I would hope that we 
could get cooperation on both sides of the aisle to move 
quickly. I appreciate Senator Hatch, who is sitting here, I 
appreciate his efforts in helping move this forward, and I 
appreciate Senator Specter's willingness to waive the notice on 
the two nominees from Colorado. I realize that meant you have 
to move very quickly in getting out here, but you were probably 
willing to do that under the circumstances.
    We stand in recess.
    [Whereupon, at 11:42 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 



















































































                      TUESDAY, SEPTEMBER 23, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, Pursuant to notice, at 3:09 p.m., in 
room SD-562, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Brownback and Specter.
    Also present: Senators Warner, Webb, Casey, and Roberts.

                      THE STATE OF VERMONT

    Chairman Leahy. There are rather extraordinary things going 
on on the Hill and we get one request after another to vote for 
a blank check on a ``just trust us'' basis involving Wall 
Street. Unfortunately, the form of the blank check tends to 
change all the time, so there's been some skepticism raised, I 
think as much on the Republican side of the aisle as the 
Democratic side. But I'm holding this exceptional hearing this 
late in a Presidential election year as an accommodation to 
Senator Specter, who is the Ranking Republican member of our 
Committee and a former Chairman.
    The Thurman rule, which was certainly established and 
followed by Republicans when there's a Democratic President in 
the White House, calls for Senate consideration of judicial 
nominations to stop in the last several months before a 
Presidential election until we see the outcome of the election.
    Senator Hatch followed that practice in both 1996 and 2000 
when he chaired the Judiciary Committee. In fact, in the 1996 
Presidential year, no one nominated after June 6th was 
considered and there were no judicial confirmations after the 
August recess. In 2000, there were none after July 25th.
    I have said throughout my chairmanship I would treat 
President Bush's nominees better than Republicans treated 
President Clinton's, and I've done so. This hearing is another 
example of that. This is the second hearing I've held for 
judicial nominees in September of this Presidential election 
    I've included the five judicial nominees from Utah, 
California, Florida, and Colorado, who participated in our 
September 9 hearing on the Committee's agenda for consideration 
in our business meeting later this week.
    Today we are going to hear from five additional nominees 
for lifetime appointments to the Federal bench in Pennsylvania, 
Virginia, and Kansas. I have consistently said this time of the 
year I will work with the Majority Leader and the Republican 
Leader in order to be able to proceed on consensus nominees.
    Progress on judicial nominees requires consensus and the 
cooperation of all Senators, I think something that is one of 
those things that both Republicans and Democrats would agree 
on. I want to thank Majority Leader Reid, with whom I've 
consulted, for his willingness to have us proceed with this.
    Now, three of the nominees are included at Senator 
Specter's request: C. Darnell Jones, Mitchell Goldberg, and 
Joel H. Slomsky, and they all have the support of the other 
distinguished Senator from Pennsylvania, Senator Casey.
    President Bush did not nominate these men until just before 
the August recess. At the time I set this hearing last week we 
still had not received ABA ratings, but based on peer reviews 
of all of them. We are expediting these proceedings as a 
courtesy to Senator Specter, and he's agreed with me to waive 
the 1-week notice required by our Senate rules.
    I am also happy to accommodate the request of the senior 
Senator from Virginia that we include the nomination of Anthony 
J. Tringa to a judicial vacancy in Virginia. Senator Warner is 
one of our most distinguished members, and he's retiring at the 
end of this Congress. In this case he's been helped by Senator 
Webb, who has worked with him on the nomination and supports 
this nomination as well with his bipartisan support of the 
nominee. I compliment Senator Webb, who's sitting right here, 
for that, for making it possible to go forward.
    The final nominee is Eric Melgren of Kansas. I am 
accommodating the requeste of Senator Brownback by including 
this nomination. I must say to my friend Senator Brownback, I 
did so notwithstanding his rather constant criticism of my 
efforts in expediting other nominees, including when I worked 
to provide consideration of long-delayed judicial nominations 
for Michigan earlier this year.
    I talked to him about having his delaying of Senate 
consideration of first one, and then as a result a dozen other, 
of President Bush's nominees at the end of the last Congress. 
He's explained his reasons for doing that, and of course he was 
within his rights to, whether I agree with him or not.
    There's more that I could say, but I understand we're going 
to have to go back on the floor very soon. I would note, we've 
cut the judicial vacancies that I encountered in the summer of 
2001 by more than half. A lot of those vacancies occurred 
because of the pocket filibuster by Republicans of President 
Clinton's nominees. Right now, we are proceeding with this 
hearing when we're facing what the White House describes as the 
worst financial crisis since the Great Depression, and many of 
us have to get back to that.
    We'll go for opening statements by seniority of those who 
are here. I think the only person senior to Senator Specter is 
Senator Warner, and he's not here at the moment. So I will 
yield to you.

                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman. Senator Warner is 
not here because he is still at the Republican conference. When 
I exited just a few moments ago, he asked me to explain his 
absence and his assurance that he will be along shortly.
    Today is a very complicated day on Capitol Hill because of 
the economic crisis. I did not use the word ``tumultuous'', 
which I used earlier today, commented on by the Chairman.
    We have a Republican luncheon, as the Democrats do. It 
starts at about 12:30 and usually goes to 2:15. When I left a 
few moments before 3, it was still in process. Secretary 
Paulson was supposed to be there early and didn't finish up the 
hearing until past 2. I left a few minutes before 3, even 
though I didn't have a chance to ask a question, or questions, 
that I wanted to. Senator Warner remained.
    I had planned to meet with three of the Pennsylvania 
nominees earlier today and just arrived a few moments ago here. 
But the schedule is very involved. We were scheduled to have a 
series of votes starting at 2:15, 2:30 and the photograph of 
the Appropriations Committee, and all of that has been 
deferred. The Senators may be interrupted at any time to go to 
the floor for votes, depending upon what happens there.
    I thank Chairman Leahy especially for scheduling this 
hearing. It is very unusual to have judicial hearings on the 
week when the Senate is scheduled for termination. The reasons 
are very complicated and we don't have time to discuss them 
now. But suffice it to say that Chairman Leahy has gone the 
extra mile, the extra two miles, the extra 25,000 miles around 
the globe to accommodate this proceeding.
    I also thank Senator Reid, the Majority Leader, for his 
acquiesence, for his support of this proceeding. It is my 
hope--really, my expectation--that we will be able to complete 
these nominations. That, of course, in the final analysis rests 
with the Majority Leader who sets the agenda for confirmation. 
But we do have a very distinguished panel of lawyers who are 
    If I may, Mr. Chairman, I will just proceed with very brief 
introductions of the three Pennsylvania nominees.
    Chairman Leahy. I see Senator Warner is here.
    Senator Specter. Senator Warner.
    Chairman Leahy. I'd like to hear from Senator Casey before 
we introduce people from Pennsylvania.
    Senator Warner, we've already given you glowing accolades 
as one of the most senior members of the Senate, and praised 
your work, your bipartisan work, with Senator Webb. That's why 
we're here.
    With that, I'll go to you because apparently we're going to 
have votes fairly soon. I doubt if we'll come back to this 
hearing once those votes start, so we're going to see how many 
judges we get done before the votes start. I'm not suggesting 
that anybody--put speeches in the record.


    Senator Warner. Mr. Chairman, you and I have been here 
together 30 years, and the man on your right, 28 of those years 
he's been with us.
    Chairman Leahy. That's right.
    Senator Warner. I think it's just important to say that I 
have had the privilege of introducing many, many, many 
individuals before the U.S. Senate, particuarly this Committee. 
In the first place, I thank the courtesy that the Chairman and 
the Ranking Member extend to all members of the Senate as they 
deal with these situations, because each of us has nominations 
coming up for the judiciary.
    I was a former lawyer and prosecutor myself, so I've had 
some modest experience. I can cut to it right away. This 
gentleman that I have the privilege of introducing, Anthony 
Trenga, is a lawyer's lawyer. He has tried and proven his 
skills. He has the highest ratings of our State Bar Association 
and of the American Bar Association. His career is what every 
young lawyer I think dreams about when they finally make their 
way through law school and pass the Bar. So I will simply put 
in my statement, but first I would ask that he introduce his 
    Chairman Leahy. I was thinking, because we have not heard 
    Senator Warner. Senator Webb joins me in this nomination. 
Whatever the pleasure of the Chair might be.
    Chairman Leahy. Well, I'll tell you what. Because of the 
time--normally I would, but because of the time thing, why 
don't I go to Senator Brownback, Senator Casey, and Senator 
Webb for any comments they want. Then we'll introduce all the 
    Senator Brownback.


    Senator Brownback. Thank you very much, Mr. Chairman.
    Chairman Leahy. I'm just afraid, if we run out of time, 
some of these people will have to wait till next year and take 
their chances with a new president.
    Senator Brownback. Thank you very much, Mr. Chairman. I 
appreciate that. I appreciate your accommodating this on the 
schedule and the nominee. I visited with you about policy 
concerns on prior nominees, but more than anything I want to 
thank you for holding this hearing and putting up Eric Melgren 
in this. I think it is an extraordinary act on your part and I 
deeply appreciate it, and I want you to know that.
    If I could--and I will cut to the chase on this as well. 
Eric Melgren is somebody I've known for a number of years. He 
was born in Minneola, Kansas, which probably the only other 
person that would even know about that in this room would be 
the Ranking Member of where that is. It's a very small 
community near Dodge City, not far from Russell, Kansas. He's 
been married for 30 years. He's got four kids.
    But he's also a lawyer's lawyer as well: graduated Washburn 
University. He was student body president first at Wichita 
State, magna cum laude at his law school, top 5 percent. Then 
he went out and clerked for the very judge and on the bench on 
which he seeks to go now, on the Federal court bench in 
Wichita, where we have three senior judges that are helping us 
carrying our cases--I mentioned last week in the hearing, the 
oldest of which is 100 years old, who is still hearing cases. 
We're just a little concerned about his work ethic at this 
point in time at that age.
    He joined a major law firm in Kansas, did a great job 
there. He's been U.S. Attorney for the last 6 years, very 
publicly involved. I think he's earned the highest ranking from 
the Bar Association of Unanimously Well Qualified. I urge his 
    Chairman Leahy. Thank you. We'll put the full statements in 
the record. I apologize for rushing, but we would not have this 
hearing if we couldn't do it otherwise.
    [The prepared statement of Senator Brownback appears as a 
submission for the record.]
    Chairman Leahy. Senator Casey.


    Senator Casey. Mr. Chairman, thank you very much. I 
appreciate the time you're putting into holding this hearing 
and scheduling it so late in the legislative year. I want to 
thank Senator Specter for his work that went into today's 
    I'm going to be very brief but I wanted to say, in summary 
fashion--I know that Senator Specter and the record will 
reflect more detail about the records of all of these 
individuals. I want to say, first of all, by way of support for 
all three individuals, Judge C. Darnell Jones, Mitchell 
Goldberg, and Joel Slomsky, all of them in one way or another 
have the requisite legal experience, in some cases--in two 
cases they are judges.
    Each of them has some other kinds of experience, including 
experience as prosecutors. I think they're all ready to assume 
the important responsibilities of being not just a judge, but a 
judge on the Federal District Court in the Eastern District of 
Pennsylvania. I am honored to stand here--to sit here, I should 
say--in this hearing and to be able to support them. It is an 
honor to work with Senator Specter to bring them forward, and 
we look forward to their confirmation.
    Chairman Leahy. You and Senator Specter, like Senator 
Warner and Senator Webb, have shown the way a bipartisan effort 
can be done to bring about judges, and I commend both of you.
    Senator Webb.


    Senator Webb. Thank you, Mr. Chairman and Ranking Member 
Specter. I have a longer statement I would ask be inserted in 
the record at this point.
    Chairman Leahy. All statements will be.
    [The prepared statement of Senator Webb appears as a 
submission for the record.]
    Senator Webb. I appreciate very much the unusual step of 
having this hearing. Senator Warner and I, as you know, have 
worked hard, jointly, in a bipartisan way to come up with 
highly qualified candidates. I think a lot of that work would 
have been for naught if you had not given us the courtesy of 
this hearing.
    Mr. Trenga enjoyed a long career. He's earned the respect 
of colleagues and clients. He received a rating of Highly 
Qualified by the Virginia Bar. His nomination was, as I said, 
the result of a very rigorous process that Senator Warner and I 
jointly participated in. I am very proud to be supporting him, 
along with Senator Warner. He has a number of family members 
who are with him today; this is a big day for their family. We 
wish him the best as a judge.
    Chairman Leahy. Thank you very much. We will put the full 
statements of everybody in the record.
    Senator Roberts, did you wish to speak? I noted before, 
anybody who doesn't get heard by the time we have our roll call 
votes probably will not get heard this year.
    Go ahead.

                    FROM THE STATE OF KANSAS

    Senator Roberts. Mr. Chairman, I used to, when I was 
chairman of the Intelligence Committee, say that people would 
have 1 minute and if they exceeded that they would be taken to 
Dodge City and hung by the neck until they're dead.
    Chairman Leahy. You've used up about half of that 1 minute. 
Go ahead.
    Senator Roberts. I've got it. I support the President's 
nomination of Eric Melgren as Federal District Judge for the 
District of Kansas. I associate myself with the remarks of my 
distinguished colleague and the senior Senator from Kansas, 
Senator Brownback.
    Simply put, Eric Melgren is qualified for this important 
responsibility. On the other side of it, we are in desperate 
need of active judges as opposed to senior judges and he would 
do a great job. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Specter, do you and Senator Casey wish to note who 
is here? Maybe their families may want to stand up and be 
    Senator Specter. Thank you, Mr. Chairman. That's a good 
idea. If the families of the three nominees from Pennsylvania 
would stand, you'd be recognized.
    Chairman Leahy. It would be Mr. Jones, Mr. Goldberg, and 
Mr. Slomsky. Thank you. And when the individual nominee 
testifies, we'll make sure we put in the names of all the 
families so that someday in the Jones, Goldberg, and Slomsky 
family archives, we'll know exactly who was here.
    Senator Warner and Senator Webb.
    Senator Warner. Thank you. As Senator Webb said so 
eloquently, we both worked on this and it was a pleasure to 
have interviewed this nominee who is right here with his 
family. If he'd stand with the family, and then we'll get all 
the names in due course. Wonderful.
    Chairman Leahy. Thank you.
    Senator Warner. And could I add one note? Throughout this 
process and others, I just want to compliment the dignity of 
the staff. They were always responsive, both Majority and 
Minority, in working on this and other nominations this year.
    Chairman Leahy. You instill that in everybody, Senator 
Warner, and I mean that very seriously.
    Senator Brownback, Senator Roberts.
    Senator Brownback. Eric Melgren's family is not here, but 
obviously he is here and will be testifying.
    Chairman Leahy. Thank you. Well, I know that all Senators 
have about four other hearings they have to go to. If you want 
you're welcome to stay, but if you want to leave, feel free 
also. The statements are all going to be put in the record.
    All the nominees, Trenga, Judge Jones, Judges Goldberg, 
Slomsky, and Melgren, please come.
    Would you please stand, raise your right hand, and repeat 
after me.
    [Whereupon, the witnesses were duly sworn.]
    Chairman Leahy. The record can show they all were sworn in.


    Mr. Trenga, would you please just put in, for the record, 
those of your family and friends who are here? Later we'll make 
sure we get all the spelling right for the Trenga archives.
    Mr. Trenga. Yes. Thank you, Mr. Chairman. I'm very 
fortunate to have here today with me my family and some very 
close friends and colleagues. First and foremost is my wife, 
Rita. We have been married 25 years and we have two children. 
My daughter Elizabeth is here with me. Unfortunately, my son 
Anthony was unable to be here. Also with me are my two 
siblings: my sister, Marilyn McClain and her husband Charles; 
and my brother, Larry Trenga, who came in from Philadelphia 
    I also am very fortunate to have with me my brother-in-law, 
Colonel Ken Dahl, who is currently here in this area.
    I am also very fortunate to have with me a number of my 
very good colleagues and friends from my law firm: Mr. Charles 
McAleer, Elizabeth O'Keefe, Megan Ellis, Pat Hackman, and also 
very good friends, Agnes Dover and Mary Hanigan have joined us. 
Also, very good friends, Tom Hylden and Shelley Davis.
    [The biographical information follows.] 

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    7Chairman Leahy. Which indicates he is--being from Virginia 
and nearby. I appreciate that. I'd note that we'll put in the 
record your background and the fact that you're a partner at 
the DC law firm of Miller & Chevalier, and so on.


    Then if I could have Judge Jones, who is a judge on the 
Philadelphia Court of Common Pleas, the highest trial court in 
the Commonwealth of Pennsylvania. He's been there 21 years. He 
was elected president judge by the judges of the Court of 
Common Pleas in 2006. Prior to becoming a judge, he was an 
Office Assistant in the Citizens Crime Commission and practiced 
law at the Defender Association of Philadelphia. And down 
through--and I will put, again, in the record his whole 
background, which is significant.
    I would note that Judge Srika, Tony Srika, took me aside at 
the Supreme Court the other day and praised you--not very 
much--Judge Jones.
    Could you please introduce any members of your family who 
are here?
    Mr. Jones. Yes, sir. Good afternoon, Mr. Chairman. Thank 
you again for the honor of being here, Senator Specter. My 
wife, Evelyn Jones, my daughter, Sheinelle Jones, my daughter, 
Dr. Keesha Elliott, my daughter, Antonia Jones, and my son-in-
law, Uche Ojeh. And my close friend from law school, Judge 
Reggie Walton and his daughter Dannin.
    [The biographical information follows.] 

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    6Chairman Leahy. Thank you all for being here.
    Judge Goldberg, who's next, is a judge in the Bucks County 
Court of Common Pleas. He was appointed in February 2003, 
elected into office for a 10-year term in November of 2003. He 
was a former Assistant U.S. Attorney for the Eastern District 
of Pennsylvania, a senior partner at the Philadelphia law firm 
of Cousin O'Connor, Assistant D.A. for the Philadelphia 
District Attorney's Office, one office that I first knew about 
when the distinguished senior Senator from Pennsylvania was the 
District Attorney there.
    Would you like to indicate, Judge Goldberg, do you have 
family members here?


    Mr. Goldberg. I do. Thank you, Chairman Leahy and Senator 
Specter. My wife, Helene Goldberg, is here. My children are 
not. My daughter is attending Boston University, her first 
year. My son Sam, hopefully is in school right now.
    My sister-in-law, Sandi--
    Chairman Leahy. When he reads this record he's going to 
pray he was.
    Mr. Goldberg. I'm going to show it to him. My sister-in-
law, Sandi Widlitz, who--really, sister-in-law is just a term. 
Sandi Widlitz is like a sister to me. She is here. And my 
sister, who lives in Bethesda, Maryland, Aileen Kantor, is also 
here. I hope I haven't missed anybody.
    I did have a brief opening statement. The lawyer in me 
wanted to give it, but you've emphasized brevity so I'll waive 
my opening statement, Senator.
    Chairman Leahy. That shows you're a very good lawyer.
    [The biographical information follows.]
    [The prepared statement of Judge Goldberg appears as a 
submission for the record.]




























    3[The prepared statement of Judge Goldberg appears as 
submission for the record.]
    Chairman Leahy. Joel Slomsky, for the past 38 years, has 
been a Federal prosecutor, a partner in a law firm, a sole 
practitioner, a Federal prosecutor with the Criminal Division 
of the Organized Crime section with the U.S. Department of 
Justice in Washington, and down through. Again, your whole 
background, Mr. Slomsky, will be in the record. Of course, you 
know that having two former prosecutors up here, we both read 
that part of your background.
    Do you have members of your family here?


    Mr. Slomsky. I do. I just want to thank you also for 
holding the hearing and giving us this opportunity, and also 
thank Senator Specter, and certainly Senator Casey.
    I have here today my wife, Paula. Next March, we celebrate 
our 40th anniversary, and I've been truly blessed. Also, my 
daughter Mona, who is here, who we both love dearly.
    [The biographical information follows.] 

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    0Chairman Leahy. Thank you very much.
    The last one will be Eric Melgren, who's currently the U.S. 
Attorney for the District of Kansas, a position he's held since 
2002. He graduated magna cum laude from Wichita State 
University, was student body president, has a law degree from 
Washburn, graduating cum laude.

                     THE DISTRICT OF KANSAS

    Mr. Melgren, I understand that with the short notice, you 
do not have family here with you. Is that correct?
    Mr. Melgren. That's correct, Mr. Chairman.
    Chairman Leahy. Thank you.
    Mr. Melgren. They're very supportive, but in absence.
    Chairman Leahy. No, I understand. We could have waited a 
couple of weeks to give them a chance, but I don't think you 
wanted to do that.
    Mr. Melgren. We're much happier with the way it is. I would 
join the remarks. I'm very grateful to you for scheduling this 
hearing, Mr. Chairman.
    [The biographical information follows.] 

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    2Chairman Leahy. Let me ask sort of a basic question of all 
of you. Again, both Senator Specter and I have been trial 
lawyers. Those who have, when you come into a courtroom, you 
look at the judge and you say, whether on plaintiff, defendant, 
government, or non-government, no matter who I'm representing, 
I kind of look at that judge and say, okay, I'm going to get a 
fair trial. Win, lose or draw, it's going to be a fair trial.
    What assurances--and I'm going to ask the same question of 
each of you--that everybody coming into your courtroom--because 
we ask this question because you're the only undemocratic 
branch of our government. You're not elected and it's a 
lifetime appointment. What assurances that they'll be treated 
fairly regardless of race, gender, religion, political beliefs, 
or anything else? Can you point to anything specific in your 
background that would demonstrate that commitment? I'll start 
with you, Mr. Trenga.
    Mr. Trenga. Thank you, Mr. Chairman. I can certainly give 
you that assurance without any reservation or qualification. 
I've worked with people and have lived in a variety of 
circumstances that have allowed me to work with a wide 
diversity of people. Within the community, I have attempted to 
participate in activities that were dedicated to the 
proposition of treating people fairly and to address 
    Within my own practice, I have attempted to represent all 
people of whatever means they may have. My practice has been 
broad. I've represented plaintiffs, I've represented 
defendants, I've represented indigent defendants, I've 
represented defendants of means, plaintiffs of means.
    I've represented large corporations, small corporations, 
employees, managers, and I've not restricted my practice in any 
way to either plaintiffs or defendants, whether it be 
securities fraud cases, or employment cases, or personnal 
injury cases. I think it is an enormous--of utmost importance 
that the process be perceived as credible, and in order to be 
credible the process has to be--the person involved in the 
process has to do precisely what you say, and that is treat all 
people fairly and without regard to station or office.
    Chairman Leahy. I wish to underscore that, because if 
courts--Federal courts especially--give the impression that 
they won't treat you fairly, the whole system breaks down. When 
people lose respect for the courts, it totally breaks down in 
this country. We are a country of the rule of law. If we can't 
trust our courts, they get their reputation, then we've all 
lost. It makes no difference what our political parties are or 
our position in the country.
    Judge Jones, the same question to you. Can you give that 
assurance? Can you point to things in your own background that 
would demonstrate commitment to that assurance?
    Mr. Jones. Without any equivocation whatsoever, I can make 
that commitment, Chairman Leahy. Thank you again for the 
opportunity to be here and participate in this process.
    Two things. First, my reputation. I trusted my reputation 
through all of the reports that have been returned from the 
endorsements by the various Bar Associations, the 
questionnaires, the American Bar Association. All of those 
things combined would demonstrate my reputation for being an 
individual who has always been fair and equitable in treatment 
of all persons who appeared before me, and all entities which 
appeared before me.
    I also know that by reason of my experience many, many 
years ago as an Assistant Public Defender, I always promised 
myself, if I was ever able to achieve the level of being a 
judge, I would treat lawyers and litigants the same way I would 
want to be treated as a lawyer, and if I ever was a litigant, 
the same way. I am duty-bound to do that, sir.
    Chairman Leahy. That is important. I remember one thing 
that Senator Thurmond would say to everybody, and it didn't 
care who was President. He said, remember your power as a 
judge. A lot of litigants will only be in a Federal courthouse 
once. They're not like those of us who may practice law. 
They're only going to be there once, and their whole view of 
the criminal justice or the civil justice system of our country 
is going to be based on that one time. That's an awesome 
responsibility a judge has, an awesome responsibility of the 
lawyers as litigants, too, but also for the judge to 
demonstrate clearly that he's not favoring one side or the 
    Judge Goldberg, how would you answer that question?
    Mr. Goldberg. First, Senator, you have my word that I will 
be fair and impartial, and I'll give you an example that I'm 
very proud of. When I first came to the Court of Common Pleas 
of Buck's County in the Commonwealth of Pennsylvania, I had 
previously been an Assistant United States Attorney, a Federal 
prosecutor for some time, and further back in my career, a 
State prosecutor. So when I came to the Buck's County 
Courthouse, as you can imagine, the Public Defender's Office, 
they were a little bit wary of, what kind of sentencer was I 
going to be, was I going to be pro-prosecution, pro-defense.
    We have proceedings in our courthouse, trials go to certain 
judges, and then those persons who want to plead guilty go to 
other judges. Initially, there was a reluctance--I think 
rightly, because the lawyers and the public defenders didn't 
know much about me. They were reluctant to plead in front of 
    But shortly after I took the bench, the head of the Public 
Defender's Office came to our president and judge and said, we 
have a great comfort level with Judge Goldberg. We know that he 
is going to--has put aside his prior background as a 
prosecutor. He's been fair. He's exhibited that fairness and 
we're comfortable bringing our clients in front of him for plea 
proceedings. Even as a former State and Federal prosecutor, 
that was a very high compliment to me.
    The other--the second way I'd answer that question, 
Senator, is I've represented a wide range of litigants, not 
only as a State and Federal prosecutor, but I've also, in 
private practice, represented criminal defendants, and in civil 
practice, small business owners up to large corporations. So, I 
have the perspective of all kinds of litigants that would come 
into my courtroom.
    Chairman Leahy. Thank you very, very much, Judge Goldberg.
    Mr. Slomsky.
    Mr. Slomsky. Thank you, Mr. Chairman. I can assure you also 
that I will be very fair and very courteous to all litigants 
and lawyers that come into my courtroom. I have practiced law 
for 37 years in our Federal courts. I was a prosecutor, I've 
been a defense attorney. I have represented people from 
practically every socioeconomic level in this country, 
different ethnic backgrounds. I've interacted with so many 
people and I've learned the necessity of treating everyone 
fairly, and not only my clients, but also prosecutors I've 
interacted with, and fellow lawyers. I can assure you that, 
based upon my experience, everyone will be treated fairly in my 
    Chairman Leahy. Thank you.
    Mr. Melgren, I might put extra emphasis on the question 
that Judge Goldberg responded to. You're going to be going, if 
you're confirmed, from a U.S. Attorney to a judge who will, the 
way our dockets go today, have to be handling a lot of cases 
from a U.S. Attorney.
    Now, I assume it's easy enough to answer the obvious 
questions about recusal in cases that you may have been 
involved with. But how do you demonstrate your impartiality, 
and what is there in your background that would give 
credibility to that?
    Mr. Melgren. Well, thank you, Mr. Chairman. And thank you 
for the question, because I do think the issue of both judicial 
impartiality and a comfort with the litigants before the jurist 
that he or she is impartial goes to the heart of the integrity 
of our process.
    It has been my honor to represent the U.S. Government for 
the last 6 years as a U.S. Attorney, but prior to that in my 
days of private practice, my practice was characterized 
principally as a tax litigant. As was noted when I was sworn 
into this office, in that role I typically was adverse to the 
U.S. Government, so I actually have probably had more years of 
suing them than of defending them.
    I've been pleased, as this process has progressed along, to 
have been stopped several times in our courthouse, even by our 
Federal public defenders, to wish me well and to tell me that 
they believed and had every confidence that I would be a good 
judge and they wished me well in the process.
    I was pleased to discover in the American Bar Review that 
several people had made comments, and I was told one that 
included a longstanding, well-regarded senior attorney in our 
community, a member of the American College, who I have on many 
occasions debated various issues with in public forums, Rotary 
Clubs and such. He told the Bar Review that he and I may be on 
opposite ends of an ideological spectrum, but he would have no 
hesitation at all in entrusting a matter to me as a judge and 
believing he'd be treated fairly.
    Chairman Leahy. I read the Bar Association--you had the 
highest rating they can give.
    Senator Specter.
    Senator Specter. The critical questions which are 
customarily asked are whether you will interpret the law as 
opposed to making the law, and whether you will follow the 
statutory requirements, or if the matter is governed by 
appellate decisions, will you follow those without regard to 
your own personal opinions?
    Mr. Melgren.
    Mr. Melgren. Thank you, Senator Specter. Certainly you and 
this Committee have my commitment that, if I am confirmed in 
this as a judge, my commitment is to follow the law. I have 
great pride in the fact that we are a Nation of laws and that 
we are governed by laws, and that as a trial judge it would be 
our duty to interpret the law as this Congress has passed it 
and has been signed into law as it is written. It's my 
commitment that that would be my highest goal and obligation, 
if I were confirmed.
    Senator Specter. Mr. Slomsky.
    Mr. Slomsky. Senator Specter, I certainly concur. I think a 
judge's job is to apply the law and put aside any personal 
feelings and to follow the language of the law, and to make 
sure that it's followed. I will do that. I assure you it will 
be done, and I will respect the process of the law.
    Senator Specter. Judge Goldberg.
    Mr. Goldberg. Senator Specter, I have the greatest respect 
for the separation of powers. I understand and respect that a 
judge's role is not to be a policymaker or to legislate. That 
is the role of the legislature. You have my commitment that I 
will strictly apply the statutes and the precedent.
    Senator Specter. Judge Jones.
    Mr. Jones. Senator Specter, I concur again with my 
colleagues here. I also commit that I have demonstrated that 
same kind of commitment for the last 21 years as a member of 
the bench in Philadelphia.
    Senator Specter. Mr. Trenga.
    Mr. Trenga. Senator Specter, you also have my commitment. 
It is the role of the court to decide cases based on the law in 
a transparent, principled way. The statutes that we're called 
upon to interpret reflect the legislative judgments that are 
entitled to respect and deference, and I give you my commitment 
that I'll do precisely that.
    Senator Specter. Judge Goldberg, there was a removal of a 
polling place in Buck's County where you sat on a three-judge 
panel to decide the matter. There were some concerns expressed 
that there was an effort to deprive people of the right to vote 
by moving it from what I believe was a housing project to a 
more affluent neighborhood because of concerns that there had 
been a high incidence of crime at the housing project.
    Would you explain what happened there, what your role was 
and why your decision was made as it was?
    Mr. Goldberg. Sure. The Board of Elections in Buck's County 
made a recommendation to move a polling place. I believe the 
distance was less than one-half a mile. Their recommendation, 
as I understood it, was based on the fact that there had been 
high incidence of crime in the one polling place. That decision 
has to be affirmed by the Commissioners of Buck's County. But 
it was during an election year, so for obvious reasons they 
could not stand in and affirm that recommendation.
    I believe what occurred then, is the president judge of our 
court asked myself and two other judges, Judge Lawlor and Judge 
Mellon, to hear the evidence and decide whether the Board of 
Elections was acting properly. We heard the evidence. I won't 
go into great detail here, but it was, as I said, that there 
had been high incidence of crime, and also that the move was 
only a half-mile and that would not cause a huge inconvenience 
to the voters who had to move from one polling place to 
    Given that evidence, I deferred to--and I don't believe 
technically I was sitting as a judge. I was sitting as a member 
of the Board of Elections. Given that evidence, I did what I do 
in all the cases that I sit: I weighed the evidence, I listened 
carefully, and decided that the Board of Elections was acting 
properly. That was my vote, and that was the vote of Judge 
Lawlor and Judge Mellon as well.
    Senator Specter. I think we have time for one question on 
the substance.
    Chairman Leahy. Ask all the questions you want.
    Senator Specter. Well, when they ring the bells and you 
have 15 minutes to get to vote, there's 5 minutes of grace 
period. But they haven't rung the bell yet, so I will ask a 
question which we customarily reserve for Supreme Court 
nominees. Chairman Leahy and this Committee and I have been 
engaged in very heavy lifting on the question of the 
warrantless wire tap program which the President has instituted 
on his Article 2 powers as Commander in Chief, which is in 
violation of the Foreign Intelligence Surveillance Act which 
requires judicial approval.
    When the matter came before the District Court Judge in 
Detroit who declared it unconstitutional, that's a pretty big 
decision for a District Court judge, when the Congress and the 
President are battling over expansion of executive authority.
    How would you tackle an issue like that, Judge Goldberg?
    Mr. Goldberg. It's a very complicated issue, obviously, 
Senator. I would approach it, I think, like I approached all 
cases, which is to study the statute first, know it backwards 
and forwards, and then study all of the precedent around that 
and try to give the truest meaning to the statute.
    Senator Specter. I've already told you it's a violation of 
the statute. Now you have to decide whether the President's 
Article 2 powers are sufficient. That's a judgment call on Al 
Qaeda, the atmosphere, and all the surrounding circumstances. 
You don't have a whole lot to go on here. Will you have any 
hesitancy in declaring it unconstitutional because you're only 
a District Court judge and you're bucking the President of the 
United States?
    Mr. Goldberg. I'd have to read and study the statute, 
Senator. But after doing that, if I concluded that the statute 
was unconstitutional, even though the ramifications would be 
significant, I would do my job.
    Senator Specter. How about it, Mr. Trenga?
    Mr. Trenga. If I were confirmed as a District Court judge, 
I, of course, would look for comfort in the case law as best I 
could find it in the Supreme Court cases, and in the cases of 
the Fourth Circuit.
    Senator Specter. You might not find any comfort in the case 
law, in the Sixth Circuit, or in the Tenth Circuit. Let's see. 
You're in the Fourth Circuit?
    Mr. Trenga. Fourth Circuit. If there were an absence of 
guidance, I would, of course, examine what the precise 
constitutional challenge was. I don't think it's ever an easy 
matter to invalidate a legislative judgment based on a 
constitutional challenge. Likewise, I would examine the actions 
that were being challenged as a violation of the Constitution. 
If, in fact, I was convinced under the law that there was in 
fact a constitutional violation, I would--I would so declare.
    Senator Specter. A first cousin, Judge Jones, has been the 
controversy over habeus corpus and the Combat Status Review 
Board which has been set up by Congress, which involved the 
abrogation of habeus corpus. When the case came to the Supreme 
Court, the Miller case--we don't have time to go into great 
detail on it, but how would you approach an issue like that as 
to whether the congressional decision to have a review board 
was sufficient to guarantee the rights of someone in detention 
to have a reason stated as to why they were held in detention, 
contrasted with the customary habeus corpus where the Federal 
judge makes a determination as opposed to a review board?
    Mr. Jones. Mr. Senator, I, if confirmed, would first 
recognize the very, very high bar of congressional legislation, 
that it is not something that would be taken lightly, 
recognizing the status of this great body. It would be, as has 
been discussed, something that would be taken into 
consideration based upon all of the requisite applications of 
constitutional dimension as espoused by the U.S. Supreme Court, 
and certainly thereafter entertaining all the arguments of all 
sides. Then I would address the issue.
    Senator Specter. Mr. Slomsky, which one of those two 
questions would you prefer to answer?
    Chairman Leahy. Because you've got to answer one or the 
    Mr. Slomsky. Senator Specter, I believe in an independent 
judiciary. I have been before many independent judges in my 
career. I think when you have a constitutional question, a 
judge has to act with restraint, has to study the law very 
carefully. I agree with Judge Jones, there is a high bar set. I 
would want to read the precedent, study the Supreme Court 
decisions on that area and listen to the arguments of counsel 
and read the submissions, and then make a decision on what I 
think is the right thing to do. It's never easy for a District 
Judge, I believe, to declare a statute unconstitutional, or 
something the President did unconstitutional. I think that 
power has to be used very judiciously.
    Senator Specter. Mr. Melgren, do you look forward to being 
a Federal judge to have an opportunity to weigh these lofty 
    Mr. Melgren. Well, certainly, Senator Specter, both of your 
scenarios raise questions of greatest weight that are vested in 
a judiciary. I think I would join many of the comments of my 
colleagues, that I believe when we're reviewing, if I'm 
confirmed, when a judge--any judge--is reviewing an act of 
Congress, acting under the broad powers that Article 1 of the 
Constitution gives the Congress, great respect and deference is 
due to those actions.
    Likewise, I think the President, under Article 2, is given 
broad powers and respect and deference is due to those as well. 
But the courts, under Article 3, do have both the authority and 
the responsibility to uphold and enforce the Constitution. And 
although those would not be easy decisions nor ones taken 
lightly, if I were confirmed as a judge and a matter came 
before me either from a--from either a congressional enactment 
or a Presidential action, that my study of the law and 
listening to arguments of counsel convinced me was 
unconstitutional, I believe it would be my responsibility to so 
    Senator Specter. Mr. Melgren, which is your town in Kansas, 
your residence?
    Mr. Melgren. Minneola, Senator. It's probably 100, 120 
miles south of Russell, population 700. My father farmed there 
and my mother was a nurse in our little 18-bed hospital.
    Senator Specter. Well, I knew it was small because I didn't 
know about it.
    And where do you have your office?
    Mr. Melgren. As U.S. Attorney?
    Senator Specter. As U.S. Attorney.
    Mr. Melgren. The District of Kansas is all one district, 
but there are three Federal courthouses: Wichita, Topeka, and 
Kansas City. My principal office is in Wichita--hat's the 
headquarters office of U.S. Attorneys--but we have Assistant 
U.S. Attorneys at all three courthouse locations.
    Senator Specter. I will conclude by a short Senator 
Thurmond story. Senator Thurmond left the Senate 1 month after 
his 100th birthday. He still casts a long shadow over our 
proceedings. The Chairman has quoted him, and I will quote him 
as well.
    On one of the early hearings that I attended on this 
Committee, Senator Thurmond, in his inimitable voice, said, 
``Do you promise to be courteous'', which is interpreted to be 
``do you promise to be courteous? ''
    And then he said, ``The more power a person has, the more 
courteous a person should be.'' The more power a person has, 
the more courteous the person should be.
    In Senator Thurmond's absence, I always--or whenever I 
can--repeat that admonition, because it's like Chairman Leahy's 
point about impartiality. Judges wear black robes. Fortunately, 
as Mr. Slomsky talked about, judicial independence is the 
hallmark of the system. Those of us who have to run for elected 
office are envious of those of you who enjoy lifetime 
appointments. Not sufficiently envious so we'd give up the 
Senate to become a judge.
    Chairman Leahy. I was going to say, I have, three times, 
turned down the possibility of being a judge.
    Senator Specter. But nonetheless, envious. But when you put 
on that black robe and you get up in the morning and things 
haven't gone exactly your way, there's a real temptation to not 
be courteous, a real temptation not to be courteous. Nominees 
have come to me years after these hearings and have said, I 
remember what Senator Thurmond said. Keep it in mind.
    Thank you, Mr. Chairman.
    Chairman Leahy. And I appreciate you doing that. I'm going 
to turn to Senator Brownback in just a moment, but I feel very 
much the same way, the courteous--the treating everybody alike. 
I can't emphasize enough the fact that the people who come in 
there--there's some lawyers in there all the time. That's fine 
for them. Most litigants will be in there once in their 
lifetime, and their whole view of the third branch of 
government is going to be based on that.
    When the Soviet Union broke up, a group from Duma in Russia 
came to visit with me. They were trying to study something 
about the independence of our judiciary. I remember very well, 
one of them said, is it true that people in your country 
sometimes sue the government? I said, happens all the time. 
They said, is it also true that sometimes the government loses? 
I said, yes, it happens often. And do you then replace the 
    I'm serious. It was almost like a lightbulb went on in the 
room when I explained, no, we don't. I think what Senator 
Specter--the questions on the Constitution are very, very 
important because, in these particular things--and I'm not 
being partisan in saying it.
    I have a great deal of concern. Both Senator Specter and I 
have made comments about this, on habeus corpus, on wire 
tapping, and everything else. Without going into all the cases, 
the fact is, in many of them the changes came about only when 
the judge had the willingness to stand up and say, no matter 
how much pressure--political pressure or anything else--is 
being brought, as I read this statute, as I read what is 
happening, what is happening is unconstitutional and it must 
    As a practical matter, once those positions were taken, 
then changes came about. It's because the Federal judiciary 
stepped in and showed that kind of courage. Among those who 
have shown the courage are people who have been both Republican 
and Democratic judges.
    Senator Brownback, did you wish to add something? Then I 
had one other question.
    Senator Brownback. Yes, if I could, just briefly. More, 
it's just a statement following up. First, congratulations to 
each of you making it this far. This is something that a number 
of people aspire to and dream about in law school or other 
iterations, so it's really quite a compliment to you and to 
your families as well if this moves on through.
    Then just, finally, really is a comment along the lines of 
what Senator Specter said, just a kind of a mentality approach. 
When you go on to the bench, that's one of the highest 
positions that the government--the highest positions in the 
land, and just to maintain a humility about that, that while 
you are in one of those vaulted positions and it's a position 
for life, if you're able to make it all the way through the 
process, just that humility of what that power brings to it. I 
would hope you would think about it.
    I think about that often in a great Nation and where we are 
one of 100 in this body, which is a fabulous honor. It's a 
great blessing, but it's a trusteeship more than anything else. 
I'm entrusted with a certain level of power and authority that 
is far beyond me as an individual, and after I'm gone will 
continue to be there. I need to be as good a trustee as I 
possibly can with that so that it maintains the dignity of the 
system, maintains the dignity of the human individual that's in 
front of me, and it maintains the wisdom of the founders of 
this country.
    You are possibly going to be in one of those vaulted 
positions, and I just would urge you all to contemplate on that 
on a fairly regular basis. If you don't, I would hope your 
family that's here would remind you about that. Mine regularly 
does, and it's a nice help that they do.
    Thanks, Chairman.
    Chairman Leahy. Thank you.
    Judge Goldberg, when your name came up here we had a lot of 
people raise the Buck's County voting booth place. One thing 
that occurred to me, would it not have worked just to keep it 
where it was, but just say we've got to have more law 
enforcement in there, more law enforcement presence? Was that 
an option?
    Mr. Goldberg. I probably, Senator, shouldn't speculate, so 
I preface this answer with, I'm not sure that this is 100 
percent correct. But I believe, under the Pennsylvania Voting 
Act laws, the Board of Elections cannot order law enforcement 
to be at the polling places. And because it was such a short 
distance, I again defer to the wisdom of the Board of 
    Chairman Leahy. Now, every judge has to make a decision 
when there's a conflict of interest. Some conflicts of interest 
are very easy and you have to recuse yourself. Chief Justice 
Rehnquist said many times that the standard for recusal was not 
subjective, but rather objective. Your brother brings a case 
before your court, a member of your family is a litigant, 
that's very easy. You can do that. It's in the gray areas.
    I know that in 2004, I remember Senator Lieberman was very 
critical of Justice Skalia, as was I, for not recusing himself 
from a case about Vice President Cheney, even though, after he 
refused to recuse himself, he went on a duck hunting trip with 
the vice president and rode in his airplane, and everything 
else, and then wrote a harshly worded opinion in which he said 
that there's no way ``his impartiality might reasonably be 
questioned.'' People are still scratching their heads over 
    Without going into the Scalia case, you'll be coming from 
either private practice or a different judgeship. Do I have the 
assurance of all of you that you will bend over backward, 
especially when you first get on the bench, to be prepared to 
recuse yourself if there is the appearance of conflicts of 
    Mr. Trenga.
    Mr. Trenga. Thank you, Mr. Chairman. This is an issue that 
goes to the integrity of the process. You do have my assurance 
that I would--I would seriously consider any suggestion of 
conflict and recuse myself in those circumstances.
    Chairman Leahy. Thank you very much.
    Judge Jones.
    Mr. Jones. Absolutely, I would, Mr. Chairman. In fact, I 
did just that in a case in Philadelphia involving a Democratic 
chairman who was also a candidate for mayor not too long ago. I 
recused my entire bench.
    Chairman Leahy. That's a big recusal.
    Judge Goldberg.
    Mr. Goldberg. You have my assurances, Senator. I think 
you--you honed in on the most important words: the appearance 
of impropriety. I'm well aware that if I am lucky enough to be 
confirmed, it's not only do you have a direct conflict, but is 
there an appearance of a conflict; how the public views the 
court and the trust in the court is very important.
    Chairman Leahy. Mr. Slomsky.
    Mr. Slomsky. You have my assurance, Mr. Chairman. My 
reverence for institutions is such that any appearance will be 
completely avoided, and I would recuse myself whenever 
    Chairman Leahy. Thank you.
    Mr. Melgren.
    Mr. Melgren. Certainly, Mr. Chairman. Your opening question 
to this panel went to the trust of the litigants before it, and 
I believe these issues address not only whether a judge is 
impartial, but whether he may be reasonably viewed to be 
impartial by those before him. I take that very seriously. 
Certainly you and this Committee have my word that, if I am 
confirmed, I will take those issues seriously and do so to 
further the trust and integrity of the process of those who 
appear before us.
    Chairman Leahy. Thank you very much.
    Senator Specter.
    Senator Specter. Again, Mr. Chairman, thank you for 
scheduling and conducting these hearings, and so efficiently as 
to have concluded them before the vote bell has rung.
    Chairman Leahy. And I want to thank you, of course, and 
Senators Warner, Brownback, Roberts, Casey and Webb. I know 
they all had long statements praising all of you, and I 
normally never cut off any Senator who wants to give a 
statement. But I did urge them to do that because I was afraid 
we might not complete these hearings. Obviously the record will 
stay open for any statement they want to add, or any further 
statement you want to add, because we also rushed you, too.
    With that, we'll stand in recess subject--
    Senator Specter. Mr. Chairman, I'd just like unanimous 
consent to put in resumes from each of the nominees.
    Chairman Leahy. Oh, sure. Of course. They will be put in. 
And if there's anything further that the staff sees has been 
left out, resumes or anything else, those will be added to the 
    With that, we'll stand in recess, subject to the call of 
the Chair. Thank you all.
    [Whereupon, at 4:11 p.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record