[Senate Hearing 111-695, Part 3]
[From the U.S. Government Publishing Office]
S. Hrg. 111-695, Pt. 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
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JULY 29, SEPTEMBER 9, and SEPTEMBER 23, 2009
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Serial No. J-111-4
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PART 3
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Printed for the use of the Committee on the Judiciary
S. Hrg. 111-695, Pt. 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 29, SEPTEMBER 9, and SEPTEMBER 23, 2009
__________
Serial No. J-111-4
__________
PART 3
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
62-345 WASHINGTON : 2010
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
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WEDNESDAY, JULY 29, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin, a U.S. Senator from the State of Utah......... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 707
PRESENTERS
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia
presenting Beverly Baldwin Martin, Nominee to be U.S. Circuit
Judge for the Eleventh Circuit................................. 5
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia
presenting Beverly Baldwin Martin, Nominee to be U.S. Circuit
Judge for the Eleventh Circuit................................. 6
Johnson, Hon. Tim, a U.S. Senator from the State of South Dakota
presenting Jeffrey L. Viken, Nominee to be U.S. District Judge
for the District of South Dakota............................... 4
NOMINEES
Kappos, David J., Nominee to be Under Secretary of Commerce for
Intellectual Property and Director of the U.S. Patent and
Trademark Office............................................... 77
Questionnaire................................................ 79
Martin, Beverly Baldwin, Nominee to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 8
Questionnaire................................................ 9
Viken, Jeffrey L., Nominee to be United States District Judge for
the District of South Dakota................................... 53
Questionnaire................................................ 54
QUESTIONS AND ANSWERS
Responses of David J. Kappos to questions submitted by Senators
Hatch, Schumer and Specter..................................... 678
Responses of Beverly Baldwin Martin to questions submitted by
Senator Coburn................................................. 686
Responses of Jeffrey L. Viken to questions submitted by Senator
Coburn......................................................... 690
SUBMISSIONS FOR THE RECORD
American Intellectual Property Law Association, Teresa Stanek
Rea, President, Arlington, Virginia, letter.................... 696
Former Law Clerks, July 27, 2009, letter......................... 698
Kappos, David J., Nominee to be Under Secretary of Commerce for
Intellectual Property and Director of U.S. Patent and Trademark
Office, statement.............................................. 702
Intellectual Property Owners Association, Steven W. Miller,
President, Washington, DC, letter.............................. 709
Nothhaft, Henry R., President and Chief Executive Officer,
Tessera, San Jose, California, letter.......................... 710
----------
WEDNESDAY, SEPTEMBER 9, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 944
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 719
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 713
PRESENTERS
Johnson, Hon. Tim, a U.S. Senator from the State of South Dakota
Presenting Roberto A. Lange, Nominee to be U.S. District Judge
for the District of South Dakota............................... 715
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New
Jersey Presenting Joseph A. Greenaway, Nominee to be U.S.
Circuit Court Judge for the Third Circuit...................... 717
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey Presenting Joseph A. Greenaway, Nominee to be U.S.
Circuit Court Judge for the Third Circuit...................... 718
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
Presenting Charlene Edwards Honeywell, Nominee to be U.S.
District Judge for the Middle District of Florida.............. 716
Rockefeller, John D. IV., a U.S. Senator from the State of West
Virginia Presenting Irene Cornelia Berger, Nominee to be U.S.
District Judge for the Southern District of West Virginia...... 714
NOMINEES
Berger, Irene Cornelia, Nominee to be U.S. District Judge for the
Southern District of West Virginia............................. 772
Questionnaire................................................ 773
Greenaway, Joseph A., Nominee to be U.S. Circuit Court Judge for
the Third Circuit.............................................. 720
Questionnaire................................................ 725
Honeywell, Charlene Edwards, Nominee to be U.S. District Judge
for the Middle District of Florida............................. 827
Questionnaire................................................ 828
Lange, Roberto A., Nominee to be U.S. District Judge for the
District of South Dakota....................................... 806
Questionnaire................................................ 807
Moreno, Ignacia S., Nominee to be Assistant Attorney General
Environmental and Natural Resources Division, Department of
Justice........................................................ 861
Questionnaire................................................ 862
QUESTIONS AND ANSWERS
Responses of Irene Cornelia Berger, to questions submitted by
Senator Sessions............................................... 907
Responses of Joseph A. Greenaway, Jr., to questions submitted by
Senator Sessions............................................... 911
Responses of Charlene Edwards Honeywell to questions submitted by
Senator Sessions............................................... 915
Responses of Roberto A. Lange to questions submitted by Senator
Sessions....................................................... 920
Responses of Ignacia S. Moreno to questions submitted by Senators
Feingold and Sessions.......................................... 923
SUBMISSIONS FOR THE RECORD
American Bar Association, Lauren J. Caster, former Chair, Kenneth
J. Warren, former Chair, Claudia Rast, former Chair, Eugene E.
Smary, former Chair, Sheila Clocume Hollis, former Chair, Lynn
L. Bergeson, former Chair, Chicago, Illinois, joint letter..... 930
Boggs, Roderic V.O., Executive Director, Washington Lawyers'
Committee, Washington, DC, letter.............................. 931
Cave, Robert B., Counsel, Hogan & Hartson LLP, Washington, DC,
letter......................................................... 932
Center for International Environmental Law (CIEL), Daniel Barstow
Magraw, President, Washington, DC, letter...................... 933
Department of Justice, former Assistant Attorneys General,
Environment Natural Resources Division, Washington, DC, joint
letter......................................................... 935
Futrell, J. William, President, Environmental Law Institute,
Washington, DC, letter......................................... 937
Gracer, Jeffrey B., Sive, Paget & Riesel, P.C., New York, New
York, letter................................................... 939
Herman, Steven A., Assistant Administrator, Enforcement and
Compliance Assurance, Environmental Protection Agency,
Washington, DC, letter......................................... 940
Hispanic National Bar Association, Ramona E. Romero, National
President, Washington, DC, letter.............................. 941
Kissinger, William D., Bingham, San Francisco, California, letter 943
Moreno, Ignacia S., Nominee to be Assistant Attorney General
Environmental and Natural Resources Division, Department of
Justice........................................................ 946
National Council of La Raza, Janet Murguia, President and CEO,
Washington, DC, letter......................................... 949
National Hispanic Leadership Agenda, Lillian Rodriguez-Lopez,
Chair, on Behalf of Cuban American National Council; Hispanic
Federation; Hispanic National Bar Association; Labor Council
for Latin American Advancement; League of United Latin American
Citizens; MANA, A National Latina Organization; National
Association of Hispanic Federal Executives; National
Association of Hispanic Publications; National Conference of
Puerto Rican Woman; National Council of La Raza; National
Hispana Leadership Institute; National Hispanic Caucus of State
Legislators; National Hispanic Environmental Council; National
Puerto Rican Coalition; Self-Reliance Foundation; SER-Jobs for
Progress; Southwest Voter Registration and Education Project,
joint letter................................................... 951
National Native American Bar Association, Heather Dawn Thompson,
President, letter.............................................. 953
Norton, Edward M., Chairman, National Conservation System
Foundation Founding, Durango, Colorado, letter................. 955
Revesz, Richard L., Dean and Lawrence King Professor of Law, New
York University, New York, New York, letter.................... 957
Schiffer, Lois J., fomer Assistant Attorney General, Environment
and Natural Resources Division, Department of Justice,
Washington, DC, letter......................................... 959
Sheehan, Charles J., Judge, Environmental Protection Agency,
Washington, DC, letter......................................... 961
Simon, James F., Acting Chief Executive Officer, Oceana,
Washington, DC, letter......................................... 962
Solow, Steven P., Washington, DC,................................ 964
Torres, Gerald, Austin, Texas, letter............................ 966
Zaelke, Durwood, President, IGSD, Director, INECE Secretarist,
Washington, DC, letter......................................... 968
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WEDNESDAY, SEPTEMBER 23, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 973
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 971
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1265
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 972
PRESENTERS
Boxer, Hon. Barbara, a U.S. Senator from the State of California
presenting Dolly M. Gee, Nominee to be District Judge for the
Central District of California................................. 974
STATEMENT OF THE NOMINEES
Chen, Edward Milton, Nominee to be District Judge for the
Northern District of California................................ 1012
Questionnaire................................................ 1013
Gee, Dolly M., Nominee to be District Judge for the Central
District of California......................................... 1080
Questionnaire................................................ 1081
Nguyen, Jacqueline H., Nominee to be District Judge for the
Central District of California................................. 977
Questionnaire................................................ 979
Seeborg, Richard, Nominee to be District Judge for the Northern
District of California......................................... 1109
Questionnaire................................................ 1110
QUESTIONS AND ANSWERS
Responses of Edward Milton Chen to questions submitted by
Senators Coburn and Sessions................................... 1159
Responses of Dolly M. Gee to questions submitted by Senator
Sessions....................................................... 1176
Responses of Jacqueline H. Nguyen to questions submitted by
Senator Sessions............................................... 1181
Responses of Richard Seeborg to questions submitted by Senator
Sessions....................................................... 1184
SUBMISSIONS FOR THE RECORD
Asian American Bar Associations, Various, San Francisco Bay Area,
San Francisco, California, letter.............................. 1188
Asian American Justice Center, Karen K. Narasaki, President and
Executive Director, Washington, DC, letter..................... 1191
Asian/Pracific Bar of California, Edwin K. Prather, President,
San Francisco, letter.......................................... 1194
Asian American Judges, San Francisco Superior Court, Bruce E.
Chan, Andrew Cheng, Samuel Feng, Newton J. Lam, Cynthia M. Lee,
Ronald E. Quidachay, Lillian K. Sing, Julie Tang and Garrett L.
Wong, San Francisco, California, joint letter.................. 1198
Boat People SOS, Inc., Thang Dinh Nguyen, Executive Director,
Falls Church, Virginia, letter................................. 1199
Bratton, William J., Chief of Police, Los Angeles Police
Department, Los Angeles, California, letter.................... 1202
Catterson, Cathy A., Clerk of Court, United States Court of
Appeals for the Ninth Circuit, San Francisco, California,
letter and attachments......................................... 1204
Japanese American Citizens League, S. Floyd Mori, National
Director, Washington, DC, letter............................... 1260
Kardon, Nancy, Kardon Law, Inc., Torrance, California, letter.... 1263
Low, Harry W., retired Justice, JAMS, San Francisco, California,
letter......................................................... 1267
Mexican American Legal Defense and Educational Fund, Andrew T.
Hahn, Sr., President, Tina R. Matsuoka, Executive Director,
John C. Yang, Co-Chair, Judiciary Committee and Wendy Wen Yun
Chang, Co-Chair, Judiciary Committee, Washington, DC, joint
letter......................................................... 1271
National Asian Pacific American Bar Association, Washington, DC,
letter......................................................... 1274
National Asian Pacific American Bar Association, Andrew T. Hahn,
Sr., President, and Asian American Justice Center, Karen
Narasaki, President & Executive Director, Washington, DC, joint
letter......................................................... 1278
National Asian Peace Officers Assocation, Regan O. Fong,
President, Oakland, California, letter......................... 1287
National Conference of Vietnamese American Attorneys, Dominique
N. Thieu, co-chair, and May Trinh Gibbs, co-chair, Fountain
Valley, California, joint letter............................... 1288
Renfrew, Charles B., San Francisco, California, letter........... 1290
San Francisco Deputy Sheriffs' Association, David Wong,
President, San Francisco, California, letter................... 1292
Thor, Doua, Executive Director, Southeast Asia Resource Action
Center (SEARAC), Washington, DC, letter........................ 1294
ALPHABETICAL LIST OF NOMINEES
Berger, Irene Cornelia, Nominee to be U.S. District Judge for the
Southern District of West Virginia............................. 772
Chen, Edward Milton, Nominee to be District Judge for the
Northern District of California................................ 1012
Gee, Dolly M., Nominee to be District Judge for the Central
District of California......................................... 1080
Greenaway, Joseph A., Nominee to be U.S. Circuit Court Judge for
the Third Circuit.............................................. 720
Honeywell, Charlene Edwards, Nominee to be U.S. District Judge
for the Middle District of Florida............................. 827
Kappos, David J., Nominee to be Under Seretary of Commerce for
Intellectual Property and Director of the U.S. Patent and
Trademark Office............................................... 77
Lange, Roberto A., Nominee to be U.S. District Judge for the
District of South Dakota....................................... 806
Martin, Beverly Baldwin, Nominee to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 8
Moreno, Ignacia S., Nominee to be Assistant Attorney General
Environmental and Natural Resources Division, Department of
Justice........................................................ 861
Nguyen, Jacqueline H., Nominee to be District Judge for the
Central District of California................................. 977
Seeborg, Richard, Nominee to be District Judge for the Northern
District of California......................................... 1109
Viken, Jeffrey L., Nominee to be United States District Judge for
the District of South Dakota................................... 53
NOMINATIONS OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; JEFFREY L. VIKEN, NOMINEE TO BE
UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA; AND,
DAVID J. KAPPOS, NOMINEE TO BE UNDER SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND TRADEMARK
OFFICE
----------
WEDNESDAY, JULY 29, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senators Klobuchar, Specter, Franken, Sessions and
Hatch.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning, everyone. Yesterday, the
Judiciary Committee reported the nomination of Judge Sonia
Sotomayor to be a justice on the United States Supreme Court.
And this morning, we are holding our first confirmation hearing
for lower court nominees since the Supreme Court vacancy arose
in May.
The vacancies throughout the Federal courts have already
risen to over 80. In addition, 27 upcoming vacancies have been
announced. That is going to push Federal judicial vacancies to
over 100. We worked very hard to fill the vacancies during the
last presidency.
Back when I chaired this Committee and we had a President
of the other party in the White House, we were able to reduce
overall vacancies by two-thirds, from over 100 down to 34, and
reduce circuit court vacancies to single digits.
Despite having received Federal judicial nominees since
March from President Obama and despite having held hearings and
reported those nominees in June, not a single Federal judge has
been confirmed by the Senate all year. I believe the Senate has
to do better.
I mention that because when I was Chairman of this
Committee with a Republican President, I moved President Bush's
nominees through faster than either of the Republican chairmen
did for President Bush, because I did not want to go back to
what had been, during President Clinton's time, when 61 of
President Clinton's nominees were pocket filibustered by the
other side.
I mention that because we tried very hard to have judges
looked at as judges and to get out of partisan politics, and I
hope we can get back to that. There is absolutely no excuse for
not having moved yet. In fact, I notice even the U.S. Attorney
recommended by Senator Sessions, the Ranking Member of this
Committee, has been blocked. This is despite the fact that we
cleared his nomination on the Democratic side of the aisle.
This nominee of a Republican has been blocked by the Republican
side. We have got to do better than that.
Now, both judicial nominations we consider today come to us
with bipartisan support. President Obama's nomination of Judge
Beverly Martin to be elevated from the U.S. District Court for
the Northern District of Georgia to the Eleventh Circuit has
the support of Georgia Senators, Senator Chambliss and Senator
Isakson. Senator Isakson and I had a good chat about this
yesterday on the floor. Senator Chambliss and I talked with
Judge Martin this morning.
Jeffrey Viken has been nominated to serve on the U.S.
District Court for the District of South Dakota and he has the
support of South Dakota senior Senator, Senator Johnson, and
Senator Thune.
Judge Martin is the fourth of President Obama's circuit
court nominees to come before the Committee and the fourth with
extensive experience as a well respected Federal district court
judge.
When her nomination came to the Senate in 2000, it had the
support of Senator Max Cleland, Democrat, and Senator Paul
Coverdell, a Republican, also a friend of all of ours who died
much too early.
Since her confirmation, she has managed a docket of 3,100
cases. Her nomination to the circuit court is rated unanimously
well qualified by the ABA Standing Committee on the Federal
Judiciary. I should note that is the highest rating they can
give.
Before becoming a Federal judge, she served as the U.S.
Attorney for the Middle District of Georgia; as an Assistant
U.S. Attorney in that office; and as an Assistant Attorney
General in the Office of the Attorney General of Georgia. It is
no secret on this Committee that, as a former prosecutor, I
love seeing people who have had prosecutorial experience.
Jeffrey Viken's wide-ranging experience makes him
particularly qualified to serve as a judge on the U.S. District
Court for the District of South Dakota. He is currently the
Federal defender for the combined districts of North Dakota and
South Dakota. I kind of gulp when I think of the land area that
covers. I do not even want to think of how many times the size
of Vermont that is.
He spent more than two decades at a South Dakota law firm.
Before that, he served as the District of South Dakota's Acting
U.S. Attorney and as an Assistant U.S. Attorney, again, a
former prosecutor.
We will also include in today's hearing the nomination of
David Kappos to be Director of the U.S. Patent and Trademark
Office and Under Secretary of Commerce for Intellectual
Property. He is well respected on both sides of the aisle, all
parts of the intellectual property community, someone I have
known for years.
He is no stranger to the members of the Committee. He has
worked with Senator Hatch and I and others on patent reform
legislation. Coalitions on all sides of that debate applauded
his nomination. We know the PTO needs strong and accountable
leadership. It has a significant backlog of applications and
faces serious challenges and we need somebody who can work with
us on patent reform legislation and also can run the
department, because, ultimately, patent quality begins at the
PTO and that requires effective leadership.
I am pleased that the President has nominated someone for
this position with strong qualifications and abilities. I said
to him earlier I do not know whether to give him
congratulations or condolences, because it is going to be one
of the toughest jobs in the government.
So I hope the hearing today can mark a new start in
cooperating to fill vacancies. Republican objections have
prevented the Senate from confirming nominees reported by the
Judiciary Committee for over 2 months, since May 12, including,
as I said, somebody sponsored by the Ranking Republican on this
Committee, Senator Sessions.
There are currently 17 nominees reported by the Judiciary
Committee pending on the executive calendar. A dozen have been
installed on the Senate executive calendar since before the
Fourth of July recess, five U.S. Attorneys, four Assistant
Attorneys General, Chairman of the United States Sentencing
Commission and others, as well as a number of judges. So I hope
we can move forth.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Hatch, former Chairman of this Committee, former
Ranking Member of this Committee, experienced person who, at
least once or twice a year, will agree with me on something. I
am delighted to have you here.
[Laughter.]
STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF
UTAH
Senator Hatch. Long-term listener to Senator Leahy.
[Laughter.]
Senator Hatch. It is a privilege to be with you, Mr.
Chairman, and I appreciate your leadership of this Committee.
Judge Martin, welcome back to the Judiciary Committee. I
was chairing the Committee when you first arrived. We have been
proud of your service. And, Mr. Viken, we look forward to
helping to confirm you.
Mr. Kappos, I agree with the distinguished Chairman. This
is one of the toughest jobs in all of the Federal Government
and I think you are not only up to the job, I think you can do
a great job there, and I look forward to supporting you.
There is no question that America's ingenuity fuels our
economy and we have to ensure that our patent system is as
strong and vibrant as possible; not only to protect our
country's premier position as the world leader in innovation,
but, also, to secure our economic future.
So I support you. I will announce that in advance. I may
not be able to stay for the whole hearing, but just know that I
am very proud of you for being willing to leave the private
sector and come to the government and work in this very
difficult position.
You two nominees for judge, we are very grateful you are
willing to serve and willing to participate in our government.
We know that there are nice things that come from being a
Federal judge, but there are a lot of difficulties, too, and we
appreciate your willingness to serve.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. I would note for the record that
Senator Hatch and I have been good friends for decades.
Senator Hatch. That is true.
Chairman Leahy. And we do enjoy teasing each other, but we
have worked together and there has been an awful lot of Hatch-
Leahy and Leahy-Hatch legislation that has passed this body.
We are going to go, as we normally do, by seniority of the
Senators who are here. I appreciate you taking the time. I
would note that, to the nominees, if the Senators, after they
have introduced you, leave, that is not an indication how they
feel about your qualifications. It is just that each one of
these three Senators have several other committee meetings
going on at this time.
We will begin with Senator Johnson.
PRESENTATION OF JEFFREY L. VIKEN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH DAKOTA, BY HON. TIM JOHNSON, A
U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA
Senator Johnson. Good morning and thank you, Mr. Chairman
and members of the Committee. It is my great pleasure to be
here this morning to introduce my friend, Jeff Viken, to be a
Federal judge for our home State of South Dakota. I am also
glad to see Jeff's wife, Linda Lea, is here.
I have known Jeff since law school at the University of
South Dakota and know well of his qualifications to fill the
post of U.S. district judge. It is a great honor that President
Obama has placed on Jeff. We are very lucky in South Dakota to
have a great member of the legal community nominated to this
post.
Jeff has many years of public service and I look forward to
his continued work for the people of our home state in the
future.
Thank you for your consideration of this nominee.
Chairman Leahy. Thank you very, very much. Before I move on
to the others, you have introduced Jeffrey Viken. Mr. Viken, do
you have other members of your family here? I mention this
because at some point, this will be in the Viken archives and
you will want to know who was here.
Mr. Viken. Thank you, Mr. Chairman. My district is 124,000
square miles.
Chairman Leahy. That is bigger than Vermont.
[Laughter.]
Mr. Viken. [Off microphone.]
Chairman Leahy. Thank you. Thank you very much for having
them all here. Senator Chambliss.
PRESENTATION OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. SAXBY
CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Chambliss. Thank you very much, Mr. Chairman. It is
a privilege for me to be here before you and my dear friend,
Senator Hatch, Senator Franken to introduce to this Committee
Beverly Martin. Beverly is a long-time dear friend, but her
father and I go back even further than that, as a brand new
lawyer in the Middle District of Georgia about 40 years ago.
You always, as young lawyers, as you know, try to look to
the best lawyers around to emulate and to learn from. Beverly's
father, her grandfather and her great-grandfather were all
lawyers and her father was one of the outstanding lawyers in
our state and somebody that I looked to early on to learn from.
So it is, indeed, a privilege to be back here 9 years after
I came here to help introduce her before Chairman Hatch, at
that point in time, to this Committee, regarding her nomination
to the district court bench for the Northern District of
Georgia.
Beverly brings a great tradition, not just a family
tradition, to the bench. She served as a member of Attorney
General Mike Bowers' team at the state level for many years,
and, there, I had the opportunity to work with her from time to
time, because I did an awful lot of condemnation work and we
worked very closely with that group of lawyers at the state
level. I knew then what an outstanding person and outstanding
lawyer she is.
Beverly then went to become an Assistant U.S. Attorney in
the Middle District and, ultimately, the U.S. Attorney, as she
was named by President Clinton, and then was elevated to the
bench on the Northern District of Georgia thereafter and, as
the Chairman noted, she has handled over 3,100 cases during
that 9 years, and she is so well respected by not just the
judges who work with her every day, but by the lawyers that
practice before her, and that is a real credit to her.
She is one of those special individuals and I know Senator
Sessions, as a former U.S. Attorney, remembers the weed-and-
seed program that was so popular. Beverly was a strong advocate
of the weed-and-seed program during her U.S. Attorney days and
she started programs in different parts of the district, in
Valdosta, Columbus, Macon and Athens, and just did so many
great things outside of the courtroom, just like she did inside
the courtroom.
She is tough, but she is fair, and that is what I hear from
lawyers who practice before her on a regular basis. She
replaces another great Maconite, Lanier Anderson, who was
appointed by President Carter back in the 1970's. He has served
us well on the Eleventh Circuit and Beverly is going to bring
not just a great tradition to the Eleventh Circuit from a
family perspective, but she is an excellent lawyer. She is an
excellent judge, and she is going to make a fine member of the
Eleventh Circuit bench.
I look forward to supporting her as her nomination moves to
the floor. I thank you again for the opportunity to be here
today to introduce her.
Chairman Leahy. Thank you very much. As I said, I enjoyed
meeting her with you. Of course, Senator Chambliss and I have
served together on another committee for years, on the
Agriculture Committee, when he was chairman and since.
Senator Isakson.
PRESENTATION OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. JOHNNY ISAKSON,
A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Isakson. Thank you, Chairman Leahy, Ranking Member
Sessions. It is an honor for me to join with the senior Senator
from Georgia, Saxby Chambliss, in introducing Judge Beverly
Martin.
I suffer at an extreme disadvantage when it comes to
judicial appointments. I am not an attorney. So I have to set a
criteria that may be different in judging people, and there are
three things I look for when I consider the judicial
appointments. One is knowledge, second is integrity, and the
third is judicial activism.
I was called out of a dinner at the Marriott downtown the
day of the announcement by the President of Beverly Martin's
nomination to the Eleventh Circuit. I received an emergency
call, which I rarely get. It was from Mike Bowers, the former
Republican Attorney General of the State of Georgia, now a
practicing attorney, under whom Beverly Martin served in the
Georgia Attorney General's office many years ago.
He said, ``Johnny, I just want you to know I heard today
that Beverly Martin has been nominated for the Eleventh
Circuit. I want to tell you that I have never known a finer
practicing attorney, never known a finer prosecutor,'' which I
know the Chairman will identify with that remark, ``and I think
she will be an outstanding judge in the Northern District.''
The last call I received today was from south Georgia, from
an attorney by the name of Jimmy Franklin, just to tell me how
much he thought of Judge Beverly Martin. But for me, on the
case of judicial activism, I tried to look back at her record
to find some way to give me an indication of her position on
judicial activism and I came upon her testimony when she was
before this Committee on judicial activism in her appointment
to the Northern District.
If I can, I would like to quote her answer to this
Committee. ``Once a case is properly before a court, a judge is
obligated to follow the United States Constitution, statutory
law and the doctrine of stare decisis, to adhere to the legal
precedent. The precept is paramount, because it is necessary to
the stability of our system for individuals and commercial
concerns to find predictability in our judicial system and
anticipate what actions are legally permissible. United States
district courts have a limited jurisdiction and it is the
solemn obligation of a judge not to find jurisdiction where it
does not exist.''
That was all I needed to know that Judge Martin was the
type of judge that I am proud to be able to be before you today
and introduce to you as a Georgian, a great justice, and a fine
person.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Judge, this just elaborates on
the very nice things that Senator Isakson said to me on the
floor of the Senate. Judge, you have family members here, do
you?
Ms. Martin. [Off microphone.]
Chairman Leahy. I suspect two very proud gentlemen. Thank
you. I thank all three of you for being here. I appreciate you
being here. I know you have to be out--you are welcome to stay,
of course, but I know you have all got committee meetings. So
thank you very much.
I should note, while they are moving things around, that on
David Kappos, he has been nominated by President Obama to be
the Under Secretary of Commerce for Intellectual Property and
Director of the U.S. Patent and Trademark Office.
In March, he had testified before the Committee on patent
reforms. He has spent his entire professional career with IBM
Corporation; graduated with highest honors from University of
California-Davis in 1983 with a degree in electrical and
computer engineering; again, worked for IBM as an engineer;
went to the general counsel's office after receiving his law
degree from the University of California-Berkeley in 1990; has
held several positions within the general counsel's office, now
serving as vice president and assistant general counsel for
intellectual property.
He serves on the board of directors of the American
Intellectual Property Law Association, Intellectual Property
Owners Association, the International Intellectual Property
Association, as the vice president of the Intellectual Property
Owners Association. I will put the rest of that in the record.
[The information appears as a submission for the record.]
Chairman Leahy. Mr. Kappos, do you have family members
here?
Mr. Kappos. Yes, I do.
Chairman Leahy. For the Kappos archives, go ahead, please.
Mr. Kappos. [Off microphone.]
Chairman Leahy. Oh, boy, you know how to get it. Where in
Vermont?
Mr. Kappos. [Off microphone.]
Chairman Leahy. Manchester.
Mr. Kappos. [Off microphone.]
[Laughter.]
Mr. Kappos. [Off microphone.]
Chairman Leahy. No wonder the room is so full today.
[Laughter.]
Chairman Leahy. We will check after with the staff to make
sure we get all these names spelled correctly. Let us have the
three nominees come forward and let me administer the oath, and
we can begin.
[Nominees sworn.]
Chairman Leahy. Let the record show that each of the
nominees took the oath and agreed to it. We will start with
you, Judge Martin, if you have an opening statement that you
would like to give.
STATEMENT OF BEVERLY BALDWIN MARTIN, NOMINEE TO BE UNITED
STATES CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT
Ms. Martin. I do not have an opening statement, but I have
got some people I would like to thank. On my way walking up
here this morning, I remember that it was 35 years ago this
summer that I was a summer intern for Senator Sam Nunn. So to
be here this morning with both of my Senators from the State of
Georgia is a big deal for me and I am grateful to them for
being here.
I wanted to mention that in addition to my husband and my
father, there are six of my law clerks here today, former,
present and future; one that is going to start in 2 weeks.
Also, I noticed a couple of my colleagues from my time as
United States Attorney, and I appreciate them being here, as
well. But most of all, thank you all for having me here this
morning.
Chairman Leahy. You had the privilege of serving with Sam
Nunn. His wife, Colleen, was my wife's big sister when she came
here. Spouses will help spouses of incoming Senators, and they
often become friends forever. My wife has served in a similar
position with a number of people. She did it with a young
Senator from Illinois named Barack Obama, with Michelle Obama.
Mr. Viken.
[The biographical information of Beverly B. Martin
follows.]
STATEMENT OF JEFFREY L. VIKEN, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA
Mr. Viken. Good morning, Mr. Chairman. Just a word of
thanks, Mr. Chairman, to you and Senator Sessions, Senator
Hatch, Senator Franken, the members of the Committee, for your
investment of time and your deliberative energy in the process
of considering the confirmation of myself to serve on the
Federal bench.
I, of course, greatly appreciate Senator Tim Johnson being
present for the introduction and for President Obama's
confidence in the nomination, and I am sure Beverly shares that
thought with me, as well.
We are honored to be here and honored to have an
opportunity to be considered for this form of public service.
Thank you, sir.
Chairman Leahy. Thank you very much. Mr. Kappos.
STATEMENT OF DAVID J. KAPPOS, NOMINEE TO BE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S.
PATENT AND TRADEMARK OFFICE
Mr. Kappos. Good morning. If it is OK, I do have a short
statement that I would like to read, Chairman Leahy.
Chairman Leahy. Please go ahead.
Mr. Kappos. Thank you. Chairman Leahy, Senator Sessions,
distinguished members of the Senate Judiciary Committee, thank
you very much for the opportunity to appear before you here
today. I am very grateful to President Obama and to Secretary
Locke for the trust that they have placed in me, and to you for
considering my nomination as Under Secretary of Commerce for
Intellectual Property and Director of the U.S. Patent and
Trademark Office.
It is exceptional and humbling under any circumstance to
have the opportunity to serve one's country, but it is
particularly so for me as the son and grandson of emigrants. My
father, who you met just a moment ago, came to this country
from Greece and my mother's parents came to the U.S. from
Italy. So the opportunity to be here today is particularly
poignant for me and it is, also, for my family.
If recommended by this Committee and confirmed by the
Senate, I look forward to joining Secretary Locke, his team at
Commerce, in their mission as stewards of American economic
growth, job creation, and innovation. I have spent nearly my
entire professional career in the field of intellectual
property law and, indeed, my entire career around technology
and innovation, first, as an electrical and computer engineer;
then as a patent attorney handling matters before the U.S. PTO;
litigating patent disputes both as defendant and as plaintiff;
managing intellectual property matters in Asia; and, finally,
as vice president and assistant general counsel for
intellectual property law, managing IBM's IP interests
globally.
So I have seen the intellectual property system from all
sides. I care passionately about this field and the role
intellectual property plays in advancing American innovation.
So it is particularly exciting for me to be considered for the
position of Director of the U.S. PTO, an organization that
traces its roots to the Founding Fathers and to their
understanding that promoting and rewarding innovation is
critical to our country's success.
PTO faces many challenges, as we all know. Most immediate
are those resulting from the economic downturn, the need for a
stable and sustainable funding model, the need to address
pendency concerns while preserving and enhancing patent
quality, and the imperative to attract and retain skilled
personnel at a time of fiscal constraint.
Secretary Locke has personally asked me to refashion the
patent examination process to meet these challenges and in
carrying forward this direction, I will focus substantial
personal attention within the U.S. PTO as my top priority.
Additional challenges flow from rapid globalizing trade
environment, impacting trademark and patent interests, as well
as respect for intellectual property and the consequences where
intellectual property is not respected. Longer term, the U.S.
PTO is going to need to keep abreast of the astounding pace of
technological change across a broad range of scientific
disciplines.
It must constantly rethink how it carries out its
constitutional imperative to promote innovation and scientific
advancement for the public good, both in terms of the
technology confronting the office and in terms of leveraging
that technology and applying the law to that technology.
So as I consider these challenges, I am mindful of several
things. I am mindful that the U.S. PTO serves the interests of
all innovators in this country, small and large, corporate and
independent, academic and applied, and, most importantly, the
public interests. While I have spent my career to date at a
large corporate enterprise, I am familiar with the concerns of
all U.S. PTO constituents, including small and independent
investors, the venture and startup community, public interest
groups, the patent bar and many others, and I will reach out to
all of them.
I am mindful of the incredible dedication of the thousands
of U.S. PTO employees and the essential role they play in the
success of the U.S. innovation system. I will work every day
with the U.S. PTO employees and the unions that represent them
to establish strong, positive relationships grounded in
professional treatment for professional judgment.
I am acutely mindful that innovation today is global and
that IP policy is of paramount importance, not only in our
country, but also in the EU, in Japan, in China, Brazil, India
and many other developing countries.
I will use my international experience and my understanding
of global IP trends to help this administration represent the
interests of American innovators globally.
Finally, I am mindful that the office for which I am being
considered, working as part of Secretary Locke's team and
within the administration's agenda, must be intensely focused
on how to serve the American people at this time of economic
uncertainty.
I believe the U.S. PTO can play a significant role in
enhancing economic growth, creating jobs and advancing American
innovation, and I hope to play a part of this important
mission.
Again, I am grateful for the opportunity to address you
here today and I am pleased to answer any questions.
[The biographical information of David J. Kappos follows.]
Chairman Leahy. Thank you very much. My mother's parents
also emigrated to Vermont from Italy.
Judge Martin, the courts are--and they were set up this way
by the founders of the country--they are the one undemocratic
part of our government. So they have a special responsibility
to Americans who have the least power and greatest need for
protection.
Judges are protected in their own decisions by lifetime
appointments. You certainly understand that, after 9 years on
the Federal bench. But I also think there is a need to show
sensitivity to people of different backgrounds, to show equal
justice, whether you are coming before a court, whether you are
rich, poor or no matter what your political background, no
matter whether you are plaintiff or defendant, to show that
they are going to be treated the same.
Can you describe any situation, either as a lawyer or as a
judge, in which you have taken difficult positions on behalf of
comparatively poor or powerless individuals or members of
racial minorities against a large corporation or the
government?
Ms. Martin. The first thing that comes to mind is criminal
sentencing. That is probably the toughest day for any district
judge. It is the worst day in the criminal defendant's life,
but it is also the worst day in his or her family's life.
So that is a time when I think it is important really to
the rehabilitative process for me to treat the criminal
defendant, as well as his or her family, with respect.
In civil cases, a very large part of our docket in the
Eleventh Circuit are employment discrimination cases. So I have
had some exposure to providing trials to people claiming race
discrimination. Again, I think it is my role to treat the
parties and their counsel with respect and provide them with
access to the courts.
Chairman Leahy. Let me talk about a case, a recent Eleventh
Circuit case I was reading about in Legal Times, Williams v.
Mohawk Industries. That is a case where hourly wage employees
brought a racketeering class action against the employer,
Georgia Carpet, a flooring manufacturer.
They said that the manufacturer had violated Federal law
for years by hiring illegal aliens to keep wages low. The
district court denied class certification to the employees,
and, normally, the Eleventh Circuit, as in most circuits, the
circuit would accept what the district court had done in
denying class certification.
In this case, somewhat rare, they reversed it. They
remanded the decision to the lower court. Now, obviously, as a
district court judge, I know you accept what the circuit has
done, but how do you handle those kinds of decisions on class
certifications? Is there any rule of thumb or is each one
different? How do you handle those?
Ms. Martin. Each one is different, of course. I see a lot
of securities class action cases. In those instances, every
single member of the class really does have the same claim. So
the class certification process for those cases is a little bit
different than the one that Judge Murphy faced in the Mohawk
Industries case.
I have read the case and the primary impression it made on
me at the time was that great judges really do get reversed
sometimes, because Harold Murphy is probably the most beloved
judge in the Northern District of Georgia.
I think it went up three different times, maybe. So beyond
that, I am not familiar with the details of the case.
Chairman Leahy. But how do you handle the issue? You have
one come before you on a motion for class certification. Do you
treat each one differently or do you have a matrix that
applies?
Ms. Martin. Well, I have Rule 23. So I go through the Rule
23(a) factors and, as I said, with securities class action
cases, that is fairly straightforward; then the 23(b) factors,
which I think is where the Eleventh Circuit disagreed with what
Judge Murphy had done, if I understand the decision correctly.
But I approach each one differently, but follow Rule 23. Of
course, those decisions go up on an interlocutory appeal
whether you certify the class or not.
Chairman Leahy. But you certainly understand the precedent
that a court of appeals may overrule.
Ms. Martin. I understand it very well.
Chairman Leahy. Mr. Kappos--and I apologize to Senator
Sessions. I am going somewhat over time here--but we have been
working on a bipartisan basis in this Committee on
comprehensive patent reform legislation. We have done this the
past three Congresses.
If you are confirmed, as I fully expect you will be, will
you work with us members, both Republicans and Democrats, work
with us on trying to resolve the final issues in the patent
reform legislation?
Mr. Kappos. Yes, absolutely, Chairman Leahy. That would be,
I am tempted to say, the top priority, but there will be
several very top priorities.
Chairman Leahy. You also have a big backlog of patent
cases.
Mr. Kappos. That is right.
Chairman Leahy. I assume you are going to try to clear
those up, too.
Mr. Kappos. That is right. That would be the second one,
yes.
Chairman Leahy. Mr. Viken, I notice you currently supervise
32 employees. You find time to initiate an annual law day
program to teach local students about their constitutional
rights and obligations. You did not have to do that. Why did
you do that?
Mr. Viken. Mr. Chairman, in our districts, in North and
South Dakota, as you know, it is very rural. We serve people on
13 Indian reservations. Law day programs are a wonderful thing,
but they tend to focus on communities which are larger and
public school systems.
My effort was designed to go out into the reservation
communities, where kids just do not have access to lawyers to
the same extent; someone to come into the classroom and really
talk to them in a front line way about their constitutional
rights and their obligations as American citizens.
So that was the motivation, sir, and we have touched about
1,000 children a year with our law day programs on the
reservations in the Dakotas.
Chairman Leahy. Thank you very much. Senator Sessions, I
thank you for your forbearance. I went over time there.
Senator Sessions. That is fine.
Chairman Leahy. Please go ahead.
Senator Sessions. Thank you, Mr. Chairman. I was prepared
to yield to Senator Hatch or Senator Coburn. Both I know have
serious matters on their agenda. I am not sure who.
Senator Hatch. Maybe I could just ask one question of Judge
Martin and then just maybe a little bit of comment for Mr.
Kappos.
Senator Sessions. Please.
Senator Hatch. I want to congratulate all three of you.
These are important jobs. I take them very seriously. Judge
Martin, like I say, I was chairman when you first came up
before the Committee.
Ms. Martin. I remember it very well. My father and I speak
often of your kindness to both of us that day. It was a
highlight for both of us.
Senator Hatch. Thank you. I hope you do not think this
question is unkind.
Ms. Martin. All right.
Senator Hatch. But I have one question about one of your
cases. That was U.S. v. Farley, which you decided last year.
The reason I am concerned about this is I understand that this
decision is currently on appeal to the Eleventh Circuit. So I
just want to ask you about your decision and how you reached
it.
In that case, you found a man guilty of crossing state
lines with intent to engage in a sexual act with a child under
the age of 12. You found the mandatory minimum 30-year sentence
required by the Federal statute to be unconstitutional and a
violation of the Eighth Amendment.
Now, I am interested in this decision for a number of
reasons, one of which is that this mandatory sentence was
established by the Adam Walsh Child Protection and Safety Act,
which I introduced in the Senate. Now, you said that the
mandatory minimum was grossly disproportionate to the crime,
but I was surprised at your reasoning.
You said that no harm was suffered because the predator had
not actually had sex with the child. You even observed that,
quote, ``It was not possible for a child to be harmed because
the child was a creation of law enforcement and no real child
exists,'' unquote.
Now, I have some difficulty seeing how either of those
observations is relevant, since the crime for which the
predator was convicted is defined in terms of the intent to
have sex with a child.
Now, Congress made that a crime and imposed a hefty
mandatory minimum, as you know, precisely because the
consequences of a predator actually abusing a child are so
horrific.
Now, with respect, it sounds like you were saying no harm,
no foul. But that is certainly not what the Congress thought.
Now, your decision suggests that you would have viewed the case
differently if law enforcement had actually used real children
as bait rather than setting up a sting.
Now, I have to say I was disturbed by the decision, but I
have great confidence in you. I would just appreciate whatever
insight you can give me about it.
Ms. Martin. Well, 18 United States Code Section 3553(a)
requires that I look at the nature and the circumstances of the
crime committed, and there was a challenge made to the 30-year
mandatory minimum.
There is a presumption, as I well understand, that any act
of Congress is constitutional. The United States Supreme Court
has a test that judges are supposed to apply when there is a
challenge, Eighth Amendment challenge made to a statute, and I
set out to apply that test, which requires that I look at the
punishment for similar crimes or more serious crimes in the
same jurisdiction and how other jurisdictions punish similar
crimes.
It is a pretty onerous test and I looked at how each of the
50 states treat that crime and what I ran into was the laws
are--for example, the law for producing child pornography which
involves the molestation of an actual child and then the
continuing molestation of that child by the distribution of the
photographs of the molestation that can go on for the child's
whole life, and the sentence for that was a mandatory minimum
15 years, a cap of 30 years.
In my case, the defendant talked to an FBI agent who
pretended to be the mother of a child and he was arrested on
the plane. He never left the plane. He waived a jury trial. I
convicted him of the 30-year count, which is what I refer to it
as, and then there was the Federal statute that criminalizes
crossing state lines with intent to murder somebody, murder for
hire. There was a statutory cap on that of 10 years.
Senator Hatch. You basically thought the 30 years was
excessive.
Ms. Martin. It wasn't about what I thought. My effort was
to write an opinion applying the test and when I got to the
proportionality analysis, as I said, I could not find the words
to say that it was not disproportionate.
Senator Hatch. Mr. Chairman, let me just say, I am going to
support you, but I did want to hear what your reasoning was. So
I plan on supporting you. I plan on supporting you with
respect.
Mr. Kappos, there is no question we are going to support
you, as well. You have an eminent experience in this field and
I just challenge you. I know that Senator Leahy and I and
others on this Committee work very strongly together to try and
help bring about the effective changes that we need to make to
help you to do your job better and to help this country and to
keep us at the forefront of innovation.
I think you are the type of person who can help us to do
that and I am very proud of you for accepting this position, as
I am of these two judgeship nominations. I had some questions
for you, but I will submit those in writing and just know that
I am very impressed that you are willing to do this, very
impressed with you personally, and I am counting on you really
helping us do a better job up here on Capitol Hill for the
people, for innovators, for the Patent Office, and we will do
everything we can to assist you.
I know that Senator Leahy feels exactly the way I do. We
are together really on these issues. Thanks, Mr. Chairman.
Chairman Leahy. Senator Hatch, I thank you for what you
said, too, because one of the things we have found, all these
patents, every single patent bill has been a bipartisan patent
bill when it is passed and, actually, most of the good
legislation on here has been bipartisan and I would like to
keep it that way.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Thank you, Judge,
Mr. Viken, Mr. Kappos. Just a few quick questions. Mr. Kappos,
you talked about your experience in Asia and the importance of
intellectual property in innovation and in the American
economy.
I was wondering if you had any thoughts about intellectual
property in terms of the entertainment industry, in terms of
knock-offs of movies and those sorts of things, especially in
China.
Mr. Kappos. Thank you, Senator Franken, for that question.
There unquestionably is a significant problem with
counterfeiting and piracy, the two areas that affect the
entertainment industry, and that is movies we think of and that
is also, of course, entertainment content in the form of music
and, additionally, other content, software.
Senator Franken. Books.
Mr. Kappos. And the high tech industry. Significant
challenges. We have got some new capability in the
administration that I would like to see and hope that will lead
to more aggressive action in terms of working with our overseas
counterparts.
I hope, if confirmed for this job, to be able to work with
the new players in order to be able to engage with whatever
countries are needed, in Asia, in some cases, in Eastern
Europe, in some cases, in Africa, in order to be able to put a
new emphasis on piracy and counterfeiting.
The special 301 process that USTR undertakes is clearly an
important part of that equation, but there are other parts,
too, including education, including working with our
counterparts in these other countries to help them put in place
new laws and win-win enforcement scenarios that will encourage
them to take the aggressive enforcement actions we need.
Senator Franken. Thank you. Mr. Viken, I am the newest
member of the Indian Affairs Committee and I was particularly
happy to see and hear about your significant work with the
Native community.
Can you tell us a little bit about that? I understand you
and your wife were adopted by a Lakota family.
Mr. Viken. We were, Senator. About 15 years ago, full blood
families on Pine Ridge Indian Reservation in South Dakota gave
us the honor of going through a hunka lo'api ceremony, which is
a very ancient, traditional form of Lakota adoption, a making
of relatives ceremony.
So we have functioned with families, traditional families
on Pine Ridge for all of these years. It has been a wonderful
experience personally, and, professionally, I think it brings a
level of cultural competence that is very useful in the work
that we do.
Senator Franken. Judge Martin, I heard in your introduction
by Senator Chambliss that you were involved in the weed-and-
seed program.
Ms. Martin. You know the weed-and-seed program.
Senator Franken. Yes. We have that in Minnesota and I have
been to some weed-and-seed events, and they seem to be
diminishing, the number of them. Is that the case and do you
not think we should be encouraging those programs?
Ms. Martin. Well, of course, that is policy and judges do
not make policy. But I was thrilled with my involvement in the
program and the effect it had on some neighborhoods that needed
some help throughout my part of the state.
We had summer camps in our weed-and-seed program. Did you
know about those?
Senator Franken. They did all kinds of things in different
weed-and-seed programs. Basically, it was a way of reducing
crime in these neighborhoods and by doing various things like
camps, but other stuff, too.
Ms. Martin. We have so many military reservations in
Georgia that we could partner with the military reservations
and have the children come to the military reservations and
spend the night and so they were exposed to all sorts of things
they would have otherwise not known about. It was a real
highlight for me.
Senator Franken. I am glad you took the initiative to do
that. Thank you, Mr. Chairman.
Senator Sessions. Are you recognizing me?
Senator Franken. Yes. Mr. Ranking Member Sessions, Senator,
sir, from the great State of Alabama.
Senator Sessions. We are great.
Senator Franken. I am sorry.
Senator Sessions. Mr. Kappos, Senator Coburn is in the
middle of a markup he had to attend, but he wanted me to ask
you this. He had talked to you previously, I think.
Do you think you can effectively manage the PTO through
this difficult time, reduce the backlog, reduce patent
pendency, if you constantly have the threat of fee diversion
hanging over your head every year?
In other words, what Congress has done is we have allowed
these fees to be assessed on the private companies and then we
spent them on other things, looted the fund. So how do you
answer that?
Mr. Kappos. Thank you for that question, Senator Sessions.
I am already well on the record as being opposed to fee
diversion and, certainly, speaking as a citizen and as a member
of the intellectual property community, I know well that the
community is strongly supportive of the U.S. Patent and
Trademark Office and, in fact, will fully fund the Patent and
Trademark Office, including even paying more fees than are
currently paid.
So it is one of the few places where a user community will
readily step up and say, ``We do not mind paying whatever it
costs.'' However, the challenge of fee diversion has been very
costly in terms of user community confidence in the Patent and
Trademark Office and that comes in the sense that the community
is steadfast in that it does not want to pay additional fees
just to have them diverted to other government uses, as worthy
as those other government uses may be.
So one of the things that I would like to focus very
substantial attention on, in addition to the backlog and some
of the other things that we mentioned, S. 515, getting
legislation through, is working with the Congress, as well as
the administration to come up with a sustainable, long-term
funding model for the U.S. PTO that includes the director's
ability to set reasonable fees, and that provision is in S.
515; that includes some way to enable the PTO to have the fees
that it collects 1 year in order to be able to spend them in a
future year to conduct the work that the fees are paid for in
the first place; and then, finally, Senator Sessions, to your
question and to Dr. Coburn's question, to work with the
administration to put a sustainable system in place that makes
fee diversion something that the user community does not have
to worry about so that it will fund the patent.
Senator Sessions. Well, I would just say I think you are
right about that. I think there is a concern about delays. Some
of those delays are probably a lack of resources for you and
your team and if the fees had not been diverted, we would not
have a shortage of resources.
The same thing has happened with nuclear power, where we
were going to tax the nuclear companies to create a storage
place, and that money has been spent on other things and now
they are suing the government because the government cannot
take the nuclear waste that they have been paying billions of
dollars for. So it is bad government and bad management on our
side.
Ms. Martin, thank you. I hear great things about you. I
have talked to a number of people who have known you. So I am
very positively disposed about it. I have gotten a lot of calls
to that effect.
But to follow-up on Senator Hatch's question, to me, there
is a danger if a judge feels that a sentence is incorrect, and
I can respect that. That is a pretty strong, heavy sentence, 30
years, in this kind of case, even though the man thought, by
all bits of evidence, that he was going to have sex with a 12-
year-old child. So I think people can disagree on what the
right sentence there is.
I am a bit concerned about your leap to the fact that the
Eighth Amendment would cover this. I would just ask, first, has
there been any other case that you are aware of in which a
court has held that a heavy sentence, even a life sentence,
violates the Eighth Amendment, which prohibits the imposition
of cruel and unusual punishment?
Ms. Martin. The test that applied in the case was a United
States Supreme Court case, and I, frankly, cannot remember how
they came out in applying that test. It sounds so terrible when
we are sitting here. I want to be sure people understand.
Senator Sessions. Let me just say I know a lot of judges.
We have had a previous one this year that has got a little bit
of a problem, because he, I would say, was criticized, I will
just say it that way, because he did not want to follow one of
these sentences.
These child molestation cases have very heavy sentences and
I think good judges could think that some of them may be more
excessive. But Congress, we debated that at great length and we
passed that and we take that very seriously. We want to end
this problem. But go ahead.
Ms. Martin. And I do, as well. I bet, when you were a
United States attorney, you prosecuted these folks when the
Postal agent was the case agent in the case. I did, as well.
So I am delighted not to be the policymaker in this area,
because I think it is a terrible problem and I have no idea how
to solve it. As I said in the transcript, when I set out to
apply the test, I had no idea it would turn out that way. But I
think that is what judges have to do. You have to look at each
case fresh and apply the test that the Supreme Court has
provided and it comes out how it comes out, and I understand.
My father is probably having a heart attack back there
about what I did. This man, there was no evidence he ever
touched a child.
Senator Sessions. I understand that.
Ms. Martin. And I sentenced him to 20 years.
Senator Sessions. I just want to raise the question with
you, just basically--go ahead, if I am interrupting.
Ms. Martin. No. I just wanted to be sure my daddy knew I
sentenced him to 20 years. I did not just let him go home.
[Laughter.]
Senator Sessions. Well said.
Chairman Leahy. Before your father walked out of the room.
Ms. Martin. He is not going to vote for me now.
Senator Sessions. No, no. Twenty years without parole is a
very serious, heavy sentence.
Ms. Martin. I am under oath. So it was 235 months, 5 months
short of 20 years.
Senator Sessions. Very good. Well, I am just of the view
that this was a pretty significant or a fairly unusual thing
that former Chairman Sensenbrenner, ranking in the House
Judiciary Committee, has filed a brief in the case, being
concerned that it does violate the congressional authority in
that area.
My time is up. I would just say to you that there is a
siren call of temptation out there, always, ``Well, this is not
quite the way I would like it to come out and I would like to
do it differently.'' The majority of your record is not that
way. This is just one of the cases that jumps out at some
people, especially since the House has filed a brief, members
have filed a brief on it.
I would like your commitment that you understand that it
will be your responsibility to serve under the Constitution and
under the laws of the United States, as the oath says, and not
above it.
Ms. Martin. Absolutely. Absolutely. I do impose mandatory
minimums all the time, Senator Sessions. I wanted to be sure
you knew that.
Senator Sessions. Yes. I know that is true and your record
demonstrates that.
Ms. Martin. Thank you.
Chairman Leahy. Thank you very much. Senator Specter.
Senator Specter. Thank you, Mr. Chairman. Mr. Kappos, you
have been nominated for a very, very important job. This
Committee has labored arduously on the issue of patent reform
and we have heard many, many witnesses testify about the
importance of patents and intellectual property as our place
preeminent in the world and to stimulate inventions.
So it is a big responsibility. The Patent Act has allowed
for petitions to make special, which is an accelerated
procedure, and there had been a special opportunity for
environmental patents to expedite the process. That was changed
to put those applications in line very far back and there is
great emphasis, as we all know, on the effort to develop
environmentally safe approaches to the environment.
We are struggling mightily with cap-and-trade now. I would
be interested in your views and interested in your assurances
that you would do whatever is possible to expedite the patent
applications for environmental issues.
Mr. Kappos. Thanks for that question, Senator Specter. That
goes into the green tech area. I am very familiar with the
accelerated prosecution rider, petition to make special
process, that was formerly applicable in that area that has
been somewhat cut back.
One thing that I think is very straightforward to do and
very clearly positive for our country and our economy is to
reinvigorate the right for an applicant to make her or his
application special.
Senator Specter. You would put back the old system where
environmental applications had precedence.
Mr. Kappos. Exactly, on account of the invention relating
to the environment. I would like to do even more than that,
though, because I believe there is a strong nexus between the
patent system, the innovation capability behind the patent
system and fueling sustainable innovation, like innovation that
benefits the environment.
Senator Specter. Mr. Kappos, I have a couple of other
questions. So would you supplement your answer in writing as to
specifically what you would do?
Mr. Kappos. Sure, I would be happy to.
Senator Specter. That is a very weighty issue and I think
there would be a lot of interest in going beyond the old rules
which gave expedited attention to that issue.
You come to the position with an extensive background with
IBM and IBM will have a great many issues before the Patent
Office which you will be called upon to rule. Now, the
government welcomes people of competence who have experience
and there is inevitably an issue as to whether you may be faced
with some matters which would have special benefit for IBM.
It is a matter of some delicacy and there is not a whole
lot that you can do except to focus on it. But address that
issue and tell us what special precautions you would take to be
fair to IBM, but not to be biased to anybody one way or
another, because there are so many competing interests and
these rules are--some of them are favored by IBM and to the
disadvantage of others. How will you handle that?
Mr. Kappos. Thanks, Senator Specter. This, to me, is a very
clear situation involving conflicts, actual and apparent. To
me, it is extraordinarily important that I have absolutely
nothing to do with any particular decision that involves my
former employer, if I am confirmed for this job, IBM.
Therefore, I will have to recuse myself.
Senator Specter. But how do you avoid the issue beyond
that? The Federal circuit has granted a request for en banc
hearing in Tafas v. Dudas, and there has been a stay of
proceedings to see what attitude you might have, and IBM would
be benefited in one way and other companies would be benefited
another way.
If there is some specific issue which IBM is the sole party
to, that is one thing. But how do you handle a more subtle and
sophisticated issue like the one I just mentioned?
Mr. Kappos. In the Tafas v. Dudas case, my current
employer, IBM, has no stake in that case in the sense that it
is not a party on either side.
Senator Specter. But is it not true that one interpretation
of the rules or one application of the rules would benefit IBM
and another would benefit many other smaller companies?
Mr. Kappos. I do not know that I see it that way. I think
of my role, if I am confirmed for this job, is doing the right
thing for the American people and the United States of America.
Like other people who are in private industry and move to the
government, I will put my previous role behind me and focus
entirely on doing the right thing for the United States of
America, in the Tafas case, in the Bilski case, and in
everything else, on a policy level that faces the U.S.
Senator Specter. That is a very good answer and doing that
will satisfy everybody.
Mr. Kappos. Thank you, Senator.
Senator Specter. Let me make one additional comment, if I
may, Mr. Chairman, to the judicial nominees. When Senator
Thurmond was chairman in here, he--Judge Martin, you are
already a judge and, Mr. Viken, you are likely to become a
judge.
Senator Thurmond used to say, ``If you're confirmed, do you
promise to be courteous,'' which translates from South
Carolina-ese, ``If you are confirmed, do you promise to be
courteous.''
When I first heard him ask the question, I said, ``That is
not a very meaningful question. What is anybody going to say
but yes?'' The nominees dutifully answered ``yes'' and then he
said, ``Because the more power a person has, the more courteous
a person should be.'' Translated, ``More power a person has,
the more courteous the person should be.''
Sometimes there is a tendency, when you put on that black
robe and have all that power, especially lifetime tenure, which
Senators do not have, except for Senator Leahy----
[Laughter.]
Senator Specter. When you have all that power, bear Senator
Thurmond's admonition in mind. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much. I will resist the
response to that. I do recognize Senator Klobuchar, but before
the clock starts on her, having Senator Thurmond here was a
very interesting thing. I once made a comment on something
Senator Kennedy said and I said, ``The problem with you guys
from the southern states, meaning Massachusetts.''
Senator Thurmond sat bolt upright and for 20 minutes, he
said, ``I'll tell you boys,'' you boys, ``what southern is.''
And at the end of that 20-minute lecture, we realized
Massachusetts may be south of Vermont, but it is not southern.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Congratulations to all of you. I would tell you, Judge Martin,
that I have been watching your father back there and he is
doing fine.
Ms. Martin. Good, good, good.
Senator Klobuchar. He was laughing at the last jokes. He is
doing Okay.
Ms. Martin. As long as he is still here.
Senator Klobuchar. Yes, that is good. I will say I have
appreciated your honest explanation about that case and I think
Senator Sessions understands, as does everyone up here, that
people may not agree with every decision that you make, but it
is looking at your record as a whole, which is very strong.
Also, your explanation here was very good. I would add,
which I am sure was mentioned before, that you got the blue
slips, which means the go-ahead from the two Republican
Senators in Georgia, Senator Isakson and Senator Chambliss,
both of whom are well respected here. But thank you for your
answer.
Ms. Martin. It is a real honor.
Senator Klobuchar. Mr. Viken, neighboring state of South
Dakota, for Mr. Viken, congratulations on your nomination, as
well.
Mr. Viken. Thank you, Senator.
Senator Klobuchar. I am going to focus my questions on Mr.
Kappos. We believe that your nomination is a good thing for
this country. I appreciate your willingness to work with this
Committee. I know I saw you before in your previous role.
As you know, we have 5,600 IBM employees in Minnesota,
which I think you have pointed out to me, and we stand ready to
work with you in your new position. I am very interested in
this patent issue, because as you know, in my state, we have
companies that have a lot of patents, from Medtronic to 3M. We
gave the world everything from the Post-It Note to the
pacemaker.
So we care very much about this issue. So I wanted to focus
on the Patent and Trademark Office, how you think that we could
improve the efficiency. I hear a lot of concerns about that, as
well as improving the morale in the office.
Mr. Kappos. Thank you, Senator Klobuchar. Yes. The
efficiency challenge in the U.S. PTO is a considerable one.
There are so many things that need to be done, we will not be
able to go into all of them this morning, but I would list just
a few right off the top.
One of them that is critical and I believe is a major
morale issue and productivity issue to the examining corps
itself, especially on the patent side, is the so-called count
system. This is a system that has been in place for more than a
generation, since the 1970's, that governs how examiners are
encouraged to do their work.
As I understand it, the examining corps hates the count
system the way it is. The applicant community, the 3Ms and the
Medtronics of the world, hate the count system the way it is,
because it results in dysfunctional behavior.
One of the things that I commit to do, if confirmed for
this job, is to work immediately with the unions that represent
PTO employees, the examining corps, and completely remake the
count system.
Secretary Locke has personally asked me to do that. That is
going to be priority one, among a few other priority ones, like
S. 515. So the count system needs to be fixed. That will help
morale tremendously and it will help substantively to enable
examiners and applicants to get to the issues that count in
patent applications, that matter, and to get them to
appropriate disposal much more quickly.
Senator Klobuchar. Very good. When we had our hearing on
the patent reform bill, we talked a little bit about the
economy and the state of the economy and how that affects the
issues of innovation in America and really the issue of patent
reform.
Could you talk about your views, in general, on that and
why it is important that we not only get the PTO as functional
as possible, but also get something done with regard to patent
reform?
I actually believe that it helped to forge some consensus.
We know there is still some work to be done on the issue, but
that the economy was a major factor. Do you want to comment on,
in general, the effect of the economy on innovation and patents
and things like that?
Mr. Kappos. Yes, sure. Thanks for that question, Senator
Klobuchar. So I believe that at the top, first and foremost,
the intellectual property system truly is the facilitator of
innovation. It truly is the engine that encourages innovation
for our country.
In a world in which, the way I put it, the distance between
innovation and products is decreasing continuously, because of
how easy it is to move from an idea to a finished product, the
only thing that protects the innovation is intellectual
property. It is the patent system, in the case of inventions.
So there is nothing more important to returning our country
to economic health than getting the innovation system working
again, and the Patent Office is right at the center of that.
So I would say, yes, clearly, there is a tremendous nexus.
The Patent and Trademark Office can play an enormous role as
part of the Department of Commerce.
The second thing I would say is that in terms of just the
economics of managing and leading a large intellectual property
granting authority, the U.S. Patent and Trademark Office, as
you know from the legislation that recently had to be passed
just a few weeks ago, there are some significant challenges
with patent application filings being down, patent grants being
down, renewal fees or maintenance fees being down, all of which
is taking fee collections down in an era in which there is this
tremendous backlog of over a million applications to examine.
So we clearly need to, in addition to refashioning the
count system, we need to refashion the fee system of the U.S.
PTO in order to be able to more accurately assess fees against
the work that is being done. I believe that with that piece of
work, which is part of S. 515, director fee-granting authority,
plus fixing the issue of fee diversion that we spoke about
before, we can make a tremendous amount of progress and get
tremendous support from the intellectual property system.
Senator Klobuchar. Thank you very much, and thank you for
that practical answer.
Chairman Leahy. Thank you. Any further questions? If no
further questions, we will hold the record open for a week, as
we normally do, for Senators who wish to submit questions.
I thank all three of the nominees. I applaud you on being
nominated. I think it speaks well for the United States to have
three people of the quality of the three of you being
nominated, two for lifetime appointments on our Federal court.
For those of us who spent years practicing before Federal
courts at all levels, that means a lot.
Mr. Kappos, as I said, I have known you for years and, as
we face increasingly worldwide economic competition, we need to
have a strong Patent Office.
Senator Klobuchar, Senator Franken and I represent states
that have had a lot of patents. It is what is going to create
jobs, it is what is going to create the future in our country
and it is important that we have the best as the head of the
office.
So I thank you all. We stand in recess.
[Whereupon, at 11:15 a.m. the Committee was adjourned.]
[Questions and answers and submission for the record
follow.]
NOMINATIONS OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT COURT
JUDGE FOR THE THIRD CIRCUIT; ROBERTO A. LANGE, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA; IRENE CORNELIA BERGER,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST
VIRGINIA; CHARLENE EDWARDS HONEYWELL, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE MIDDLE DISTRICT OF FLORIDA; IGNACIA S. MORENO, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATIONAL RESOURCES
DIVISION, DEPARTMENT OF JUSTICE
----------
WEDNESDAY, SEPTEMBER 9, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 2:34 p.m., Room
226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse
presiding.
Present: Senators Klobuchar, Franken, and Sessions.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The hearing will come to order.
Today we will consider four nominations to the Federal
bench. Judge Joseph Greenaway has been nominated to the United
States Court of Appeals for the Third Circuit; Roberto Lange
has been nominated to the United States District Court for the
District of South Dakota; Judge Irene Berger has been nominated
to the United States District Court for the Southern District
of West Virginia; and Judge Charlene Honeywell has been
nominated to the United States District Court for the Middle
District of Florida. We also will consider the nomination of
Ignacia S. Moreno, to be Assistant Attorney General for the
Environment and Natural Resources Division at the Department of
Justice.
I understand that the Ranking Member, Senator Sessions, is
on his way here and will be joining us shortly, but I would
like to take this moment to welcome each of the nominees, and
their families, and their friends to the U.S. Senate.
I also, of course, would like to welcome those of my
colleagues who are here to introduce the nominees. This
Committee is graced by the presence of such a distinguished
array of my colleagues.
In the interest of efficiency, let me outline how this
hearing will proceed. If the Ranking Member arrives and wishes
to make remarks, we will accommodate him at this point. At the
conclusion of my remarks, if he is not here, I will allow the
introductions by the home State Senators to begin. Their
introductions will proceed in order of seniority, and each will
have the chance to introduce the nominees for their States.
We then will have two panels. The first panel will be Judge
Greenaway, and the second will be all the remaining nominees.
Senators on the Committee will have 5-minute rounds in which to
question each panel.
Without the Ranking Member here, I ask unanimous consent
that the remainder of my opening statement be put into the
record so that I do not delay my colleagues any longer, and we
will begin with the introduction of Judge Berger by the
distinguished Senator from the State of West Virginia, the
Honorable Jay Rockefeller.
Senator Rockefeller.
[The prepared statement of Senator Whitehouse appears as a
submission for the record.]
PRESENTATION OF IRENE CORNELIA BERGER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, BY
HON. JOHN D. ROCKEFELLER, IV, A U.S. SENATOR FROM THE STATE OF
WEST VIRGINIA
Senator Rockefeller. Thank you, Mr. Chairman, very much. I
would point out to Judge Berger, who I am about to talk about,
that Senator Sheldon Whitehouse is one of the people that you
need to know. He's brilliant. He's a wonderful lawyer, he's a
wonderful person. He gives great advice on what books to read,
and he's somebody you can trust.
And that, I would say to the distinguished Chairman, is
what Judge Irene Berger is all about. Yes, she is being
nominated to the--has been nominated to serve in the U.S.
District Court of Southern West Virginia, but you can't leave
that statement alone. She comes from a very large family, and
her husband David and a lot of her relatives are here,
scattered behind me. David is right here. She comes from a
family, a large family, in one of the four poorest counties in
the United States of America.
Rather than coming up, going through law school, serving
for 30 years for the people of West Virginia in a calm,
deliberate, marvelous way and being kind of proud about just
everything she is and talking about a lot, no. She is the
ultimately quiet, fair, dispassionate, rational judge.
I have to say that I had the honor to present Judge Pierre
Lavalle, and that was one of the happiest days of my life. This
is also one of the happiest days of my life because I think
Judge Irene Berger is unmatched in her professionalism, in her
experience.
And above all, in this question of temperament, I've never
heard her--I've seen her--over many years I've known her, I've
seen her in all kinds of situations. She's always the same.
She's always smart. She has--all the Circuit Court judges from
West Virginia who are on the Fourth Circuit and elsewhere, et
cetera, rave about her. And she's been waiting, but she's not
been promoting herself. She simply does her job in a classic,
stoic, strong, heartfelt, and ultimately brilliant Southern
West Virginia way.
It's not easy, always, to be from West Virginia. It's not
always easy to be a judge from Southern West Virginia, or other
parts of West Virginia. It's a very active, aggressive,
sometimes angry State. But nothing seems to affect Judge Irene
Berger except superb judgment, confidence in herself, pride in
what she's done, but all quiet, all measured. She is a superb
person.
Go to her for counsel on anything. She doesn't play like,
I'm a judge, or I'm about to be a judge at a higher level. She
doesn't play that at all. She's just who she is and who she's
always been. And you don't run into that often. People in this
business, when it comes to judgeships, often want them, grasp
for them, work for them, plot for them, and often get them.
That's not her way. She is thrilled to have this opportunity,
and I just want her to know how happy I am to be able to be a
part in helping her to become the judgeship that she seeks.
I thank the Chairman.
Senator Whitehouse. Thank you, Mr. Chairman. We are honored
to have you here. We very much appreciate your remarks on
behalf of Judge Berger.
Senator Rockefeller. Oh. Also, I want--Senator Byrd
couldn't be here today and he has a very strong statement about
Judge Berger, and I ask----
Senator Whitehouse. It will be accepted into the record
without objection. I thank the Senator.
[The prepared statement of Senator Byrd appears as a
submission for the record.]
Senator Whitehouse. Next in order of seniority is Senator
Tim Johnson, who is here to speak on behalf of Roberto Lange.
Senator Johnson.
PRESENTATION OF ROBERTO A. LANGE, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH DAKOTA, BY HON. TIM JOHNSON, A
U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA
Senator Johnson. Good afternoon. Thank you, Mr. Chairman
and members of the Committee. It is my good pleasure to be here
this afternoon to introduce Roberto Lange to the Committee.
President Obama has nominated Bob to be a Federal judge for our
home State of South Dakota.
Bob attended the University of South Dakota, my alma mater,
and attended Northwestern University School of Law in Chicago.
He was an editor of the Law Review and graduated Order of the
Coif.
We are very fortunate to have such a distinguished member
of the South Dakota legal community nominated to this post.
After more than 20 years of practicing law, Bob is well-
qualified for the position of U.S. District Judge for South
Dakota.
Ironically, Bob has clerked for the very same judgeship
that he is now the nominee for. While there are many rewards
for public service, there are also many challenges. Thus, I
would like to thank Bob for his past and future service for the
people of South Dakota. Thank you for your consideration of
this nominee.
Senator Whitehouse. Thank you, Senator Johnson. I
appreciate very much that you have been here to speak on behalf
of Mr. Lange.
Our next speaker is Senator Bill Nelson of Florida,
speaking on behalf of Judge Honeywell.
Senator Nelson.
PRESENTATION OF CHARLENE EDWARDS HONEYWELL, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTICT OF FLORIDA, BY HON. BILL
NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. You know, Mr. Chairman, this seniority
thing is quite interesting because Senator Lautenberg retired
for a little over a year and a half, and he gets bumped to the
bottom. Now Senator Menendez is the senior Senator from New
Jersey.
Senator Whitehouse. The other way around.
Senator Nelson. I see.
Well, I'm here on behalf of Judge Charlene Honeywell of
Tampa, and it's for a judgeship in the Middle District of
Florida.
She graduated from Howard University and then from the
University of Florida College of Law. Mr. Chairman, that's the
University of Florida. They happen to be the national champion,
Florida Gators.
Judge Honeywell has had a distinguished record. And it's
obvious that we select our judges by going through a panel that
Senator Martinez and I nominate, called a Judicial Nominating
Commission, made up of very prominent people throughout
Florida. They do all of the hard work, the investigation,
receiving the applications and the interviews. For as many
qualified candidates as we get, they boil it down to three and
send those three to Senator Martinez and me, and we do our
interviews in the process then. We consult with the White
House. All of that process of winnowing, vetting, narrowing has
produced the cream to the top, and that's Judge Honeywell.
After she had graduated from law school, she was first a
public defender in two different judicial circuits in Florida.
She's been an assistant city attorney. She's been in private
practice with one of Tampa's most distinguished law firms and
then she has kept all of that career with being one of our
State court judges in what we call our Circuit Court in
Florida.
So it is Senator Martinez and my privilege to be here, and
I speak on his behalf. I don't know if he has actually
officially resigned. He just gave his farewell speech. I think,
as of this moment, he is still Senator. So I can tell you, he
certainly speaks through me today and the two of us encourage
the Committee to approve Judge Honeywell.
Thank you, Mr. Chairman.
Senator Whitehouse. Thank you very much, Senator Nelson.
And our last speakers, in order of seniority: Senator
Lautenberg, and then Senator Menendez of New Jersey, speaking
on behalf of Judge Greenaway.
Senator Lautenberg.
PRESENTATION OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT
COURT JUDGE FOR THE THIRD CIRCUIT, BY HON. FRANK R. LAUTENBERG,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you very much, Mr. Chairman and
the Ranking Member of the Committee, Senator Sessions, members
of the Committee, for the opportunity to be here today to
present a fellow Columbia University graduate--obviously not in
the same class year.
[Laughter.]
Senator Lautenberg. Why is there such a snicker going
through?
[Laughter.]
Senator Lautenberg. One of New Jersey's most distinguished
public servants, Judge Joseph Greenaway.
On the District Court in Newark, Judge Greenaway has
demonstrated his core values of integrity and fairness, the
same values that will make him a success on the Third Circuit
Court of Appeals. Through his impressive career, I've been
fortunate enough to watch Judge Greenaway at work for our State
and our people.
Judge Greenaway became an Assistant U.S. Attorney in Newark
in 1985. He first served in the Criminal Division, where he
worked on bank fraud and white collar crime investigations. In
1989, he was promoted to head the division dedicated to
prosecuting narcotics cases. From 1990 to 1996, Judge Greenaway
served as an in-house counsel for Johnson & Johnson, a
prominent pharmaceutical company in New Brunswick, one of New
Jersey's great companies. Then in 1996, Judge Greenaway was
appointed by President Clinton to the United States District
Court for the District of New Jersey, where he has since
served.
Now, I introduced him to this Committee at that time, as I
am today, and I do it with great enthusiasm. The best thing
about Judge Greenaway is that, despite his critical and time-
consuming responsibilities in the court, he still finds time to
give back to the community. He teaches criminal law, criminal
trial practice classes at Cardozo Law School, where I sit now
as an honorary board member, as I was on that board for some
time. He helps train the next generation of legal thinkers and
leaders.
Judge Greenaway also teaches a course about Supreme Court
at both Cardozo Law School and Columbia University. He spent
his career protecting New Jerseyans and their rights, and I
know that we can depend on him to do the same for our Nation as
an Appeals Court judge.
I am pleased that President Obama has selected Judge
Greenaway for this post and I urge my colleagues to support his
confirmation.
Before introducing his family, I want to say that I was
honored to have a courthouse carry my name during my absence
from the Senate, and I authored something to be posted on the
plaque that carries the name. I said on that plaque, ``The full
measure of a democracy is its dispensation of justice'', and I
can't think of anyone who fills that obligation better than
Judge Joe Greenaway.
Now I want to recognize Judge Greenaway's wife, Veronica
Blake Greenaway, his son Joseph, his daughter Samantha, and his
parents as well. We all know that he would not be here today
without your love and support.
Mr. Chairman, I thank you for the opportunity to testify at
this time.
Senator Whitehouse. Thank you, Senator Lautenberg.
Senator Menendez.
PRESENTATION OF JOSEPH A. GREENAWAY, NOMINEE TO BE U.S. CIRCUIT
COURT JUDGE FOR THE THIRD CIRCUIT, BY HON. ROBERT MENENDEZ, A
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you, Mr. Chairman, to the
distinguished Ranking Member, to all the distinguished members
of the Committee. I am pleased to join my colleague in the
Senate, Senator Lautenberg, and to have the pleasure and honor
to come before the Committee today to introduce a man from New
Jersey who fully embodies the qualities of respect for justice
and the rule of law we demand of all of our judges.
At the age of 40, Judge Joseph Greenaway, Jr. was appointed
by President Clinton to the Federal bench and he has served for
over a dozen years with distinction. He earned a bachelor of
arts from Columbia University, where he was honored in 1997
with the Columbia University Medal of Excellence and with the
John Jay. Award in 2003.
He was an Earl Warren Legal Scholar at Harvard University,
where he received his J.D. and served as a member of the
Harvard Civil Rights and Civil Liberties Law Review. He clerked
for the late Honorable Vincent L. Broderick in the U.S.
District Court for the Southern District of New York before he
became an Assistant U.S. Attorney in Newark and received a
promotion to become chief of the Narcotics Bureau.
In the private sector, he was an associate with the firm of
Kramer, Levin, Nessen, Kamin & Frankel, and served at Johnson &
Johnson, as Senator Lautenberg said, as their in-house counsel.
He is chair emeritus of the Columbia College Black Alumni
Council. He has been an adjunct professor at my alma mater,
Rutgers Law School. He is an adjunct professor at the Cardozo
School of Law, where he teaches a course on trial practice and
a seminar on the Supreme Court. He is also an adjunct at
Columbia College, where he teaches a seminar on the Supreme
Court.
But that is Judge Greenaway's resume. It is a distinguished
resume, to say the least. It also is one that I'm sure, through
your questions, you will find a judge who has the demeanor, the
intellect, the integrity, the deference to the rule of law as
well as to precedent, and you'll get those from your questions.
But it does not do justice to Judge Greenaway the man.
There is an inscription, Mr. Chairman, over the Tenth
Street entrance to the U.S. Department of Justice, just a few
blocks from here. That inscription says, ``Justice in the life
and conduct of the state is possible only as first it resides
in the hearts and souls of men.''
So, Mr. Chairman, I can tell you, those true qualities of
justice do indeed reside in the heart and soul of Judge
Greenaway. He was born in London, grew up in Harlem, in the
northeast Bronx, not far from where Justice Sotomayor grew up,
and just across the river from where I grew up.
He is accomplished and successful, but he's given a lot
back. In 2006, when he spoke at the Benjamin Cardozo School of
Law Yeshiva, Dean David Rudenstein said then, ``Judge Greenaway
has been a generous teacher and mentor to Cardozo students
throughout the years and has touched many of their lives in
meaningful ways. I'm delighted that our graduates will have the
opportunity to hear his insights, witness his humaneness, and
be inspired by his example.''
Judge Greenaway, who long taught master classes at Yeshiva,
has always been instrumental in mentoring students and
graduates, often taking them under his wing as law clerks or
fellows.
He has said, ``I tell my students to work hard and work
smart. Our profession requires a drive to search for
perfection. Without that goal, mediocrity becomes the norm.''
Well, mediocrity has never, and never will be, the norm for
Judge Greenaway. He has always strived for excellence and he's
always taught young lawyers to do the same.
So in conclusion, Mr. Chairman, members of the Committee,
when we look to our courts to dispense justice fairly,
honorably, equally under the law, we look to those among us who
have worked hard not only for themselves, but for the
betterment of the community as a whole. We look to those who
have achieved much, but whose humility allows them to take the
long view, to see the whole board, and act accordingly. Judge
Joseph Greenaway is that kind of judge, the kind of person we
look to when we think of the notion of equal dispensation of
justice under law.
It is my pleasure to join Senator Lautenberg in introducing
him to the Committee and thank him for his service to New
Jersey. I know that I join with all of you in wishing him and
his wife Veronica, his son Joseph, and his daughter Samantha
good luck and godspeed on this next journey in life.
Mr. Chairman, I appreciate your opportunity to make this
presentation. I urge the Committee to recommend favorable
action and a speedy confirmation to the Third Circuit Court of
Appeals.
Senator Whitehouse. I thank you, Senator Menendez. I thank
all of my colleagues who have taken the trouble, from extremely
busy schedules, to come here today and speak on behalf of these
candidates. The constitutional prerogative of advice and
consent and the Senate tradition requiring the approval of the
home State Senators for judicial appointments, I think, lead to
wonderful consequences for America in the caliber of the
appointees who are brought forward and the requirement that
they meet the confidence of their home State Senators in order
to achieve these lifetime appointments. So in coming before us
as you have, you are, I believe, acting in the finest
traditions of the U.S. Senate, and I appreciate that you took
the trouble to do so. The panel is excused.
If the distinguished Ranking Member would like to make an
opening statement, I would invite him to do so when the
situation settles down in a moment. After that, we will call up
Judge Greenaway first.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Mr. Chairman, I thank you for this
opportunity. It is a part of our congressional responsibility,
a senatorial constitutional requirement that we examine
nominees for the bench. We hope and look forward to a good
group of nominations from this administration.
I think the Senators that just testified being strong in
their support for these nominees is always most meaningful to
me, and I think the other Senators--to the nominees, I think
that will stand you in good stead to have their firm and
vigorous support. I think it will definitely make a difference
in how those confirmation hearings go.
We do have some disagreements, I think, about the role of
courts and how they should conduct themselves in America today,
sort of a national discussion about, to what extent judges are
bound by the law and to what extent they feel that they are
empowered to allow their personal feelings or approaches to law
affect how they decide cases. So I think that's something that
is very important to me and we'll ask about it, but all in all,
I think the nominees that we're seeing here today that will be
before us have good records, and I look forward to examining
them.
Senator Whitehouse. I thank the very distinguished Ranking
Member.
I would now ask the Honorable Joseph Greenaway to come
forward.
[Whereupon, the nominee was duly sworn.]
Senator Whitehouse. Please be seated, and welcome.
Do you have an opening statement? If you would be good
enough to turn on your microphone, that would help. You are
most welcome to introduce your family who are here with you in
addition to making some opening remarks, if you would care to
do so.
STATEMENT OF HON. JOSEPH A. GREENAWAY, TO BE U.S. CIRCUIT COURT
JUDGE FOR THE THIRD CIRCUIT
Judge Greenaway. Well, thank you so much, Mr. Chairman.
The first remark I'd like to make is to thank God for his
grace and countenance that I'm here today. I'd like to thank
President Obama for his confidence in me with regard to this
nomination. I'd like to thank Senators Lautenberg and Menendez,
Congressman Payne, and others. I'd like to thank my family and
friends for being here today. I'd also like to thank you, Mr.
Chairman, and the Ranking Member and the Committee members who
are present as well.
I'd also like to take this opportunity to introduce my
family. I'm not going to turn around, because I'm told that
that would mean you can't hear me. So behind me is my father,
Joseph Greenaway.
Senator Whitehouse. Welcome, sir. We're glad to have you
with us. Congratulations on your son's accomplishments.
Judge Greenaway. My wife, Veronica Greenaway.
Senator Whitehouse. Wonderful to have you with us.
Judge Greenaway. My son, for his second visit. He was six
the last time.
[Laughter.]
Judge Greenaway. He's a little older now.
Senator Whitehouse. He has grown handsomely since then,
Your Honor.
Judge Greenaway. Thank you, Mr. Chairman.
My daughter Samantha, who was not here the last time.
Senator Whitehouse. Welcome.
Judge Greenaway. My two sisters, Rosemary and Sonia, my
brother-in-law Rodney, and Charlotte Rosen, my son's special
friend.
[Laughter.]
Judge Greenaway. And Mr. Chairman, I'm graced with the
presence of many friends, lifelong friends, law clerks and
interns who are here for today's proceedings.
Thank you so very much.
Senator Whitehouse. You are most welcome, and we are
delighted to have you here. I congratulate you on the quality
and extent of your public service to date and hope that a
speedy and uneventful confirmation awaits you here.
I would like to ask you the same question that I asked now-
Justice Sotomayor when she was before our Committee for
confirmation, and that is whether, in your role as an appellate
judge, you will respect the role of Congress as representatives
of the American people, decide cases based on the law and the
facts, not prejudge any case, but listen to every party that
comes before the court, respect precedent, and limit yourself
to the issues that the court must decide?
Judge Greenaway. Let me give you my unequivocal assurance,
Mr. Chairman, that with regard to each of those items, that
that is exactly what I have been doing and what, if I am
confirmed--fortunate enough to be confirmed, I intend to do in
the future.
The role of stare decisis in our legal system is critical.
I believe in it and I have adhered to it as a District Court
judge. I believe that the only basis that cases can be decided
on are the law and the facts and not some predetermined notion
of what the outcome should be. Clearly, in my work as a
District Judge, I have respected the role of Congress in our
tripartheid system.
Senator Whitehouse. In the context of your pledge to listen
to every party that comes before the court, clearly not every
party comes before the court with similar resources. Sometimes
parties are represented by enormous law firms, sometimes
they're represented by considerable numbers of enormous law
firms. Sometimes a party comes before the court with a new
lawyer, a solo practitioner, perhaps even a lawyer who is
simply having a bad day. What is your view of the judge's role
in ensuring that those differences of resources do not
interfere with each party's right to a fair trial before the
court?
Judge Greenaway. Thank you, Mr. Chairman. I believe that
the role of the judge, when there's an inequity in resources,
an inequity in legal talent, as you've alluded to in your
question, is frankly confined. I don't believe that the role of
a district judge or a circuit judge is to sort of try to even
things out. I've had cases where a solo practitioner is up
against a massive law firm and, frankly, outdoes them quite
nicely.
I know in our own district, some of our CJA counsel are
among the best lawyers available in the State. I think that if
a judge were to say, you know, I'm not sure things are evened
out so I'm going to call this one this way to kind of even
things out, I think that that kind of interference or intrusion
into the system is one that is ill-advised.
I haven't followed that, and I would not want to in the
future. I do believe that all people who appear before me,
those with limited resources and those with unlimited
resources, deserve fair treatment. I have done that. If
confirmed, I would continue to do that. I believe that is the
only role that a judge can play, to play it down the middle and
call it as you see it.
Senator Whitehouse. Finally, Your Honor, the Constitution
embodies eternal principles that may be at odds with popular
conventions or passions of the time and substantial societal
expectations may have grown around those conventions or
passions by the time a matter comes before the court.
You may find yourself in a situation in which you find that
the eternal principles of the Constitution, if applied
properly, are actually disruptive of certain expectations and
certain settled practices, and perhaps even certain interests.
Do you feel any hesitancy, when the facts and the law and the
principles of the Constitution so direct, to disrupt those
conventions or practices that have settled around those popular
passions?
Judge Greenaway. Well, Mr. Chairman, I believe that the
beauty of the Constitution is its enduring quality. I also
believe that the prescience of the Founding Fathers was in
giving Federal judges lifetime tenure so that in those
instances that you've alluded to, those times when difficult
decisions have to be made so that judges act in conformity with
the Constitution rather than public opinion, those decisions
can be made without fear of retribution.
I do believe that the Constitution of the United States is
a wonderfully constructed document. It is one that I enjoy
reading. I believe that it is important to apply. I think that
public opinion on particular issues comes and goes, but I think
that the fact that that endures and that it is difficult, under
our constitutional system of government, for amendments to be
made speaks to the fact that the Constitution, for whatever
foibles people may have with or see in it, should be followed.
Senator Whitehouse. I thank you. My time has expired.
I'd call on the distinguished Ranking Member.
Senator Sessions. Thank you, Mr. Chairman.
Judge Greenaway, it's a pleasure to be with you. I think
you showed some admirable humility in your opening statement,
thanking the President and God for your opportunity to serve in
this august position. Some people get on the bench and they
think they are anointed rather than appointed, as they say.
[Laughter.]
Judge Greenaway. Not I, sir.
Senator Sessions. A little humility doesn't hurt for
somebody who's got a lifetime appointment and we can't vote you
out of office. But you have a lot of good friends, a lot of
firm recommendations, and both of your Senators are very
supportive.
I remember, really before I came here, my staff has found a
statement you made last time, when you were up for
confirmation, that ``judicial activism is a practice that goes
beyond the bounds of permissible jurisprudence, as set forth in
the Constitution. In my view, engaging in such activism
requires a jurist to begin the journey down the proverbial
slippery slope. Once down that path, stare decisis and the
Constitution fall prey to that judge's perceptions, prejudices,
and predilections. This approach is antithetical to the intent
of the framers of the Constitution and results in haphazard
decisionmaking.''
You go on to say, ``A Federal judge cannot impose his or
her own views on what the law should be as if sitting as a
super-legislature. In theory and practice, judicial opinions
must be measured and guided by precedent and the Constitution.
Judges must limit themselves to the parameters permissible
within the larger constitutional scheme.''
So I guess I like that.
Judge Greenaway. Thank you very much, Senator.
Senator Sessions. Do you still believe that?
Judge Greenaway. Absolutely, sir.
Senator Sessions. You made a speech, a lecture entitled,
``Judicial Decision-Making in the External Environment''. You
said that ``the external environment consists of the political,
social, intellectual, and other forces that influence and
affect our judiciary and its decisionmaking. Although the
public may believe that judges make their ruling in a vacuum,
they clearly do not. Not only does each member of the judiciary
come to the bench with a different set of experiences, but our
environment affects each judge differently as well.''
Then you note that Justice Black, who ruled in the Japanese
detention case, the Koramatsu case, was ``undoubtedly
influenced by several factors outside the record, such as his
own military career, the fact that his sons were in World War
II, and his friendship with General DeWitt.'' I guess I think,
as I read those remarks, you seemed to criticize Black for
allowing those things to cause him to not be sensitive to the
constitutional rights of the people, the Japanese citizens, who
were interned. Is that correct?
Judge Greenaway. Well, Senator, I think that--well, first
of all, you quoted me absolutely accurately. I think that my
point in that article was that, No. 1, we had suspect
classifications involved. No. 2, we were talking about probably
one of the most egregious violations of an entire subgroup of
Americans in our Nation's history. No. 3, there was a real lack
of evidence brought before the President before he acted, and
the court before it acted.
In looking at Koramatsu critically, my view was, if we're
going to--if we as a society, and the court in particular, is
going to take that kind of action, that we'd better have a good
reason to do it and there should be some evidence to support
it. Now, I think what you quoted with regard to Justice Black
and his background is part of it, certainly not the only thing.
But I think that was my point.
Senator Sessions. Well, sort of to follow up on Senator
Whitehouse's question about taking clear stands sometimes on
important issues, even if not popular, I think there is a
danger--do you not agree, that in a judge allowing such things,
extra-judicial matters that you've cited that possibly could
have influenced Black, there is a danger in allowing that to
happen and could indeed weaken certain constitutional
protections?
Judge Greenaway. That is certainly possible, sir.
Senator Sessions. Some people seem to think that feelings
and experiences are necessarily good and are always going to
lead a judge in the right way. Sometimes feelings could lead
you in the wrong way in your experiences.
Judge Greenaway. That is also certainly possible, sir.
Senator Sessions. President Obama described, once, the kind
of judges he would look for on the bench as follows: ``We need
somebody who's got the heart, the empathy to recognize what
it's like to be a young teenaged mom, the empathy to understand
what it's like to be a poor African-American, or gay, or
disabled, or old, and that's the criteria by which I'm going to
be selecting my judges.''
Now, Justice Sotomayor declined to endorse that as her
philosophy of service on the bench. Do you have any comments
about that and how you would approach the difficult task of
judging?
Judge Greenaway. Well, Senator, I know a little bit about
being African-American.
[Laughter.]
Judge Greenaway. I think we might not have had a lot of
money growing up, but I didn't think we were poor. We were
really rich in a lot of the more important things in life, my
sisters and I. You know, I think my father and mother prepared
us for life in the best way they could, and that is giving us
the principles to be productive members of society.
I am not in the President's position with regard to what
makes a good judge. The only thing I can tell you is that, in
my years of experience, I've tried to be fair to folks, I've
tried to treat them with the utmost respect and to deal with
their--address their cases as best I could, applying the facts
to the law.
Senator Sessions. Well, I thank you for saying that. We
haven't done an exhaustive search of your record like what gets
done for the Supreme Court nominees. Every word that they say
gets researched. But it does appear that you have a good record
and broad support in the community. Thank you.
Judge Greenaway. Thank you very much, Senator.
Senator Whitehouse. Thank you, Senator Sessions.
As I said, Judge Greenaway, we hope very much for a speedy
and uneventful confirmation. I thank you for your testimony
here today. The record of the proceedings for you and for the
other candidates will remain open for a week from the
conclusion of this hearing, so if there are other comments
anybody cares to make about your candidacy, they have that
final week to make them before the record of these proceedings
closes. But I welcome you here. I congratulate your family on
this achievement and I wish you godspeed.
Judge Greenaway. Thank you so much, Senator. Both Senators.
I appreciate it very much. Have a good day.
Senator Whitehouse. We will take a 5-minute recess--and I
do mean 5 minutes--while the table gets turned over for the
next panel and people have a chance to assemble themselves.
[Whereupon, at 3:19 p.m. the hearing was recessed.]
AFTER RECESS [3:21 p.m.]
Senator Whitehouse. The Committee will come back to order.
I would ask if the nominees would please stand to be sworn.
[Whereupon, the nominees were duly sworn.]
Senator Whitehouse. Thank you very much. Please be seated.
I think I will proceed in the order of the introductions,
which would put Judge Berger at the front of the line.
Welcome, Your Honor. Delighted to have you here.
Judge Berger. Thank you.
Senator Whitehouse. I call on you for any opening remarks
or introductions that you would care to make. I understand that
you have family and friends here on this day.
STATEMENT OF IRENE CORNELIA BERGER, TO BE U.S. DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
Judge Berger. I do. Thank you, Chairman.
First, I would like to extend my heartfelt thanks to
President Obama for the honor of the nomination. I also would
like to extend my gratitude and appreciation to Senators Byrd
and Rockefeller for their recommendation, and also their
comments here today.
I thank you and Senator Sessions for being here today and
affording us this opportunity. I also would like to thank
Senator Leahy for scheduling our hearing.
It is with great pleasure that I introduce to you my
brother, Charles Berger, my sister-in-law, Janet Berger, my
niece, Charlene Berger, my niece, Michelle Berger, my
administrative assistant and best friend, Karen Sword, and her
husband, David Sword.
Senator Whitehouse. We are delighted that you're all here
today and we welcome you to the Senate Judiciary Committee.
Judge Berger. My family and I are honored to be here. Thank
you.
[The biographical information of Irene Cornelia Berger
follows.]
Senator Whitehouse. We're delighted to have you, and
congratulations to you on your nomination.
Next, is Bob Lange.
STATEMENT OF ROBERTO A. LANGE, TO BE U.S. DISTRICT JUDGE FOR
THE DISTRICT OF SOUTH DAKOTA
Judge Lange. Thank you very much, Mr. Chairman. I would
like to join Judge Greenaway in thanking God. I feel very
blessed in my life. Also, thank you to the Committee for the
hearing, for Senator Johnson for his introduction of me, and to
the President for the nomination.
I'm delighted to be joined here by my wife, Lisa Lange, my
youngest sister, Heidi Logelin, and her nine-year-old twins,
Madison and Alec Logelin, my dear friends from law school, Tom
and Tish Pahl, and by surprise, a raft of my cousins who
happened to work in Washington, DC, David Hubbuch, Eleanor
Hubbuck, and Mary Lange.
Thank you, Mr. Chairman.
Senator Whitehouse. We are delighted that they are all
here, particularly Madison and Alec, who I think will probably
find this a memorable day as they grow older as their uncle
came to this great day. I applaud you on your nomination and
welcome you here.
Judge Lange. Thank you.
[The biographical information of Roberto A. Lange follows.]
Senator Whitehouse. Next, is Judge Honeywell.
STATEMENT OF CHARLENE EDWARDS HONEYWELL, TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Honeywell. Thank you, Mr. Chairman. I, too, must join
Judge Greenaway in thanking God for making this possible.
I am delighted to have present with me at these proceedings
a number of family members and friends, but I must first, in
addition to thanking God, thank the President for nominating
me, thank the members of the Federal Judicial Nominating
Commission in our State for sending my name to Senators
Martinez and Nelson, thanking them for their support of my
nomination, and then thank the Senate Judiciary Committee,
thank Senator Leahy for scheduling this, and thank you all for
your presence in affording us the opportunity to address you
this afternoon.
Traveling with me from Florida are my husband of 18 years,
Major Gerald Honeywell.
Senator Whitehouse. Welcome, Major. Glad to have you with
us.
Judge Honeywell. My 16-year-old son, Brenton Honeywell, my
13-year-old daughter, Brianna Honeywell, and my mother, who is
terrified of flying, but made the trip regardless.
[Laughter.]
Senator Whitehouse. Good for her. Good for her.
Judge Honeywell. I also have some very dear friends who
traveled with me from Florida: my good friend from law school,
Willye Dent; a very dear friend, Bettye Johnson; two other very
dear friends, Reverend Arthur T. Jones and Mrs. Doris Jones.
I also have present with me this afternoon members of my
sorority and college friends from Howard University, many of
whom live in the Washington, DC area. I'd just ask if they
would stand. I won't introduce them individually, but I do have
a number of friends present from college here in support of me
today.
Senator Whitehouse. There seems to be a color theme.
[Laughter.]
Judge Honeywell. It is: red. That was our sorority color,
red and white.
[The biographical information of Charlene Honeywell
follows.]
Senator Whitehouse. Well, I'm delighted that your lovely
family and your friends are here, and I thank them for joining
us.
The final member of our panel has not been introduced. She
is not a candidate for a judgeship, but rather has been
nominated to serve as Assistant Attorney General for the
Environment and Natural Resources Division at the U.S.
Department of Justice.
I have served in that Department as a U.S. Attorney. I am
keenly sensitive to what an important role she will play. I am
delighted that Ignacia Moreno is here. She, too, is a veteran
of the Justice Department, having served during the Clinton
administration as Special Assistant, and then as Counsel and
Principal Counsel to the Assistant Attorney General for the
Environment and Natural Resources Division. So, this will be
something of a homecoming.
After serving at the Department of Justice, Ms. Moreno
joined Spriggs & Hollingsworth in Washington, DC, where she
became a partner, specializing in environmental and mass tort
litigation, with an emphasis on science-based advocacy. She is
currently counsel for corporate environmental programs at the
General Electric Company and serves pro bono as general counsel
to the Hispanic National Bar Association.
We welcome Ms. Moreno and invite her to make any statement
she cares, or any introductions she cares.
STATEMENT OF IGNACIA S. MORENO, TO BE ASSISTANT ATTORNEY
GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT
OF JUSTICE
Ms. Moreno. Thank you very much, Senator Whitehouse, for
those kind remarks and the kind introduction. Thank you and
Ranking Member Sessions for holding this hearing. I would also
like to thank the President, as have my other panelists, for
nominating me for this very important position. I am grateful
to the President and to the Attorney General for their
confidence in me.
I'd like to briefly introduce my family who is with me
today: my mother, Zenith Morena.
Senator Whitehouse. Welcome.
Ms. Moreno. Sisters, Patricia Moreno and Veronica Acosta;
brother, Carlos Moreno; my niece and nephew, Francesca and
Alexander Moreno; and it gives me special pleasure to introduce
my husband and son, Robert and Nicholas Begotka. My father,
Carlos Moreno, was unable to be here today, but is certainly
with me in spirit. I wouldn't be here without my family's
inspiration, their encouragement, and their support. In
particular, I wish to thank my mother for her many and
sustained sacrifices. She is my hero. Thank you again for the
opportunity to appear before you, and I look forward to your
questions.
[The biographical information of Ignacia Moreno follows.]
Senator Whitehouse. Thank you very much, and welcome.
I would begin by asking each of the judicial nominees the
same question that I asked Judge Greenaway, which is whether
you are prepared, in embarking on these judicial duties, to
respect the role of Congress as the representatives of the
American people, to decide cases based on the law and the
facts, to not prejudge any case, but listen to every party that
comes before the court, to respect the precedent of law that
has been established in your district, and to limit yourself to
the issues that your court must decide.
Are you prepared to undertake your duties under that set of
strictures?
Judge Lange. Mr. Chairman, my answer is, unequivocally,
yes.
Judge Berger. Mr. Chairman, my answer to all facets of your
question is an unequivocal yes.
Senator Whitehouse. Judge Honeywell?
Judge Honeywell. And Mr. Chairman, I join with the other
panelists. My response is also an unequivocal yes. I have
endeavored to do that for the eight and a half years that I've
already served as a judge in Florida, although not Congress as
much as the Florida legislature. So, I absolutely agree and
give you an unequivocal yes.
Senator Whitehouse. I appreciate that.
The other question I asked is also one that is important to
me. There may very well come a time when the requirements of
the law or the requirements of the Constitution, as you with
your very best conscience and judgment read it to say, may very
well cross either expectations or conventions of society. In
those circumstances, can we be assured that you will follow the
law and the Constitution, even if the consequences may be
disruptive for settled interests?
Judge Lange. My answer, Mr. Chairman, is yes. The
Constitution is the supreme law of the land that must be
followed, even if it is a difficult result.
Judge Berger. I agree with Mr. Lange. In all instances, the
Constitution and the law controls, given the particular factual
scenario, without giving consideration to the other issues
which might come to bear at the time.
Senator Whitehouse. Thank you.
Judge Honeywell. And Mr. Chairman, I, too, agree with the
responses of my colleagues. I absolutely agree that the
Constitution and the controlling law are to be followed by the
judge in rendering decisions without giving attention to any
other extraneous matters. It is my responsibility as a judicial
officer to be faithful to the law.
Senator Whitehouse. I thank you all.
Ms. Moreno, you have been on both sides of the aisle, so to
speak. You have served before in the Environment and Natural
Resources Division and been an enforcer of our environmental
laws. You have also represented the private sector in matters
of compliance with those environmental laws. Can you assure me
that you are prepared to pursue full and fair enforcement of
our environmental laws, and elaborate a little bit on what your
experience on the defense side has taught you that you would
bring to your duties, should you be confirmed?
Ms. Moreno. Thank you, Senator Whitehouse, for that
question. I'm being advised to turn the mike on. Thank you,
Senator.
Senator Whitehouse. Always wise to obey a judge.
[Laughter.]
Ms. Moreno. Absolutely. Thank you, Senator, for giving me
the opportunity to answer that question. I am--I can tell you,
unequivocally, the answer is: yes, I will absolutely be a
defender of the Nation's environmental law. I am fully
committed to the core mission of the Environment and Natural
Resources Division, which includes a strong enforcement of laws
enacted by Congress to protect human health and the
environment, and to ensure clean air, clean water, and clean
land for all Americans. That core mission also includes the
defense of the laws enacted by Congress in the defense of
agency programs and actions, as well as stewardship
responsibilities and mindful management of our trust
obligations to Native American tribes.
My experience in the Division will serve me well if I am
confirmed to be Assistant Attorney General for the Environment
Division. I both work on affirmative enforcement matters, on
criminal prosecutions, as well as in defense of the Nation's
laws and programs. My private sector experience will only serve
to make me a more effective Assistant Attorney General, if I
should be confirmed, because I have, as you said, seen how it
all works on both sides and would be mindful of our
obligations.
Senator Whitehouse. Thank you very much.
My time has expired and I call on our distinguished Ranking
Member.
Senator Sessions. Thank you. I will just ask one thing of
all of you, which is it's pretty obvious to me, having spent a
good number of years practicing before Federal judges, that
it's a challenge and a difficult task and requires a lot of
work.
So I guess I would ask you, Mr. Lange, are you committed to
managing your courtroom, to reaching--doing justice as best
you're able, but also managing the courtroom, disposing of
cases in a timely fashion and not causing unnecessary expense
to the litigants?
Judge Lange. I certainly am, Senator Sessions. I'm from a
family farm background. I've worked very hard throughout my
life and I intend to commit myself to diligent and timely
handling of the cases that come before me in a fair and
impartial manner.
Senator Sessions. Thank you.
And do you agree?
Judge Berger. Yes, Senator, I absolutely agree. I think
it's exactly what I've made an effort to do over the course of
the last 15 years as a State court judge, to employ whatever
tools necessary in keeping with trying to ensure that every
party was heard fairly and equally to try to be responsive in a
timely manner.
Senator Sessions. Thank you.
Judge Honeywell.
Judge Honeywell. Yes, Senator Sessions. I, too, agree. I
first learned a little bit about managing a heavy caseload as
an assistant public defender. That experience has kept me well
in my experience now as a State court judge, where I preside
over a docket of approximately 4,300 cases.
Senator Sessions. Well, I think it is important. I hear, on
occasion, lawyers and litigants complain about unnecessary
delays. It can be very costly to them in terms of lawyers and
business decisions that are in limbo, and that kind of thing.
Mr. Lange, I like the fact that you're an active
practitioner in your State for a number of years, and I like
the fact that you've been active politically. I think that's a
good thing. You've been active in a number of campaigns for
Democratic nominees, as the Governor's race, Senator Daschle
and Senator Johnson, both of which are honorable things to do.
Are you confident that you can make the transition to a
judge who puts aside those political views and can decide the
case objectively, even though the person before you might be of
a different political party?
Judge Lange. Certainly, Senator Sessions. Many of my
friends are of a different political party; I'm from South
Dakota, after all.
[Laughter.]
Judge Lange. Many of my partners are from a different
political party. I have no question about my ability to treat
people fairly, regardless of what background they come from or
what their political affiliation may be. My role in those
campaigns was to make sure that the candidate was well-
represented and the campaign laws were followed, and those
proved to be campaigns that went fairly smoothly in terms of no
great issues arising. That's the way it should be. Elections
should be fair and square. That was what my responsibility, I
felt, was in those settings.
Senator Sessions. Well, I remember when President Bush
chose Ted Olson to be his Solicitor General and some were
unhappy because he had defended him in Florida. But I figured
that proved that he thought highly of him, if he chose to
defend him out of the whole--of all the lawyers in the United
States of America, he told Ted Olson to be the one that
defended his campaign.
So, no. I think that's very true. I believe, particularly
in smaller States where you deal on a regular basis with judges
of different parties, you've practiced before them with lawyers
of different political views, I think you can move past that.
Some people can't, but most people who have actually been good
practicing lawyers have no difficulty in that.
Let's see. Judge Berger, 3 years ago, in a speech to the
Legal Services Corporation in Charleston, West Virginia, you
closed with the following quote from a former Canadian Attorney
General: ``Substantive and procedural law benefits and protects
landlords over tenants, creditors over debtors, lenders over
borrowers, and the poor are seldom among the favored parties.''
Now, I think those were remarks made some 40 years ago by a
Canadian.
The oath that you take says that you will do equal justice
to the poor and the rich alike. Are you committed to that oath,
and does this suggest that you feel that contracts and
mortgages shouldn't be enforced as written? Would that not
impact the willingness of, let's say, a bank to loan somebody
$100,000 to pay it back over 30 years at 6 percent if they felt
like the terms of the contract wouldn't be honored if the
borrower got into default?
Judge Berger. Thank you, Senator, for an opportunity to
clarify that comment. First of all, I want to say very strongly
that I will, if confirmed, ensure that all parties are treated
fairly and equally. They will be heard equally, be they rich or
be they poor. In making that speech and quoting that, I simply
wanted to impress upon the Legal Services Board that there was
work to do in terms of equaling, from their perspective, the
playing field among various constituencies.
As a judge in a courtroom, I do not have that luxury. I
think the Legal Services Board, however, does have the luxury
for working to trying to see that people have access to the
courts, and that was my intention in adding that to that
particular speech.
Senator Sessions. I think there is a danger that poor
people with less education have difficulties understanding the
full ramifications of a contract. But I do believe that the
entire economic system and the ability of a poor person to get
a loan could be reduced if the fundamental principles of the
contract are not enforced.
With regard to sentencing, you made a comment in 2000 that
you never knew prison to improve a person, and that in
borderline cases you would prefer 2 or 3 years probation. As
you know, the sentencing guidelines in Federal court are pretty
restrictive on a judge. State judges often chafe at that narrow
window of ability to sentence. People who have gone straight on
the Federal bench, I don't think, have any trouble. They find
it pretty--somewhat relieving to be able to say, well, this
objective panel has said this is the kind of range I should
utilize when I sentence. But a judge who allows their personal
views to impact sentencing can cause quite a bit of turmoil,
appeals, and uncertainty in the system.
So I guess I would ask you, are you generally familiar with
the requirements of the sentencing guideline, and are you
willing to follow them even if that would not be your choice
for an appropriate sentence in a case?
Judge Berger. Thank you, Senator. The answer to your
question is yes. I am familiar with the sentencing guidelines.
I would agree with you that oftentimes in State court there is
discretion that is not presented by the operation of those
sentencing guidelines. There are also, however, in State court,
some mandatory sentences where judges don't have any leeway and
I have, over the course of the 15 years that I have sat as a
State court judge, applied those when it was appropriate. If
confirmed by this body, I will continue to do that. I see it no
differently than applying the law in any other area, which I am
very committed to do, if confirmed.
Senator Sessions. Thank you. It's a remarkable thing, what
the Federal Government did with regard to the sentencing
guidelines.
Judge Honeywell, a number of years ago you were
representing the City of Ft. Lauderdale. St. Petersburg. No,
Ft. Lauderdale.
Judge Honeywell. Tampa. city of Tampa.
Senator Sessions. Tampa. OK. A Ft. Lauderdale gun show--
reported in the St. Petersburg Times about Tampa. I guess
that's right, Tampa. They had banned gun show sales. You were
the attorney for the city, correct?
Judge Honeywell. That's correct. I was, Senator.
Senator Sessions. Which is your duty to defend the city's
statutes.
Judge Honeywell. Absolutely.
Senator Sessions. And you stated, ``Our position is that if
speech is involved it's commercial speech, which is not
entitled to the same protection under the law as political
speech.'' I guess, have you had any thoughts about that
statement in light of more recent Supreme Court authority, and
even the Heller case in the District of Columbia?
Judge Honeywell. Thank you, Senator. I have not had any
additional thought with regard to that statement because that
statement occurred, gosh, over 12 years ago. I can assure you
that as a judge, though, I would be required to, and absolutely
would, follow the law of our land. So as the law has changed
and evolved since that statement was made, I, as a judge, would
follow that law based upon precedent and the doctrine of stare
decisis.
Senator Sessions. I think there has been some recognition
that there's not much difference between commercial speech and
personal speech, but at one time there was some case authority
that went along that way.
Likewise, on the sentencing guidelines, are you committed
to following those?
Judge Honeywell. I am committed to following the sentencing
guidelines. I believe that establishing the guidelines is the
role of Congress. It would be my job, if confirmed by this
body, to apply that law to the facts of the cases before me,
but Congress certainly has the authority and has acted by
establishing the sentencing guidelines. I am also familiar with
the sentencing guidelines because in Florida we do have
sentencing guidelines, too.
Senator Sessions. I think it was a major step that the
Congress took before I came here. I think Senator Kennedy and
Senator Thurmond both supported it and it brought some
objectivity to sentencing. We had this spectacle in the same
courthouse, two people being convicted of the same crime, and
one judge giving probation and another 20 years, and it was
difficult to justify that. So it does bring some consistency
and gives you a range within which to sentence. But people who
are not that familiar with guidelines often feel some of our
State judges who become Federal judges get anxious about it,
I'll just say it that way. They're used to doing it the way
they've done it.
Ms. Moreno, yours is an important position. You've had a
position with an environmental group, the Environment and
Natural Resources Division, before. They have to take some
tough cases. Some of them are quite technical. Some of them
have been criticized as being unnecessary, unnecessary
enforcement actions that don't make sense. But the Department
has been proud of its strict enforcement of the law, which I
don't disagree with.
So I guess, you've been in the Department, you've been in
the private sector. Do you think you can enforce the law fairly
and adequately based on the law and the facts as you make the
final decision on what cases to bring and recommend for
prosecution?
Ms. Moreno. Absolutely, Senator. You have my commitment to
that.
Senator Sessions. Well, I think there's nothing wrong with
you having been with a major corporation and you have the other
side experience, too, in the Department. So, I thank you.
Mr. Chairman, each one of these nominees has strong support
and we'll be continuing to look at their records, but I'm
impressed with them.
Senator Whitehouse. I thank the very distinguished Ranking
Member.
I want to thank all of you for your presence here today.
This is a very distinguished panel. Each one of you is an
extraordinarily accomplished individual. The process that has
led to today of FBI background checks and innumerable forms to
fill out, and so forth, has been--I know from firsthand
experience--a long ordeal, but it is essentially concluded at
this point. I think you have both of our hopes for a speedy and
uneventful confirmation.
But as you think back on this day, I want you to be aware
that both the Ranking Member and I are aware that you bring
extraordinary life experience, talent, and dedication to this
day. Two of you bring substantial judicial experience as well,
Judge Berger and Judge Honeywell. You bring before us the
confidence of your communities, you bring before us the
confidence of your home State Senators, and you carry with you
the confidence of the President of the United States of America
that you will do well as you assume the responsibilities that,
upon confirmation, will be yours.
You are embarking, each of you, in somewhat different ways
on a career of public service that will entail a lot of hard
work, a lot of late hours. Nothing particularly great in the
way of pay, but a lot of great moments, a lot of great
opportunities, and the greatest opportunity of all, which is to
serve your country, the United States of America.
So I salute you on being here today. I hope that you and
your families enjoy this day and I wish you godspeed.
Do you have anything else you'd like to add?
Senator Sessions. Just briefly.
Congratulations to each of you for your nomination. I'm
happy for you and your families. This should, indeed, be a
special occasion. I may submit some questions for the record
that I hope that you would respond to. I know you understand
fully that a Federal judge is given a lifetime appointment.
Even though the salary may not be the greatest compared to what
some private lawyers make, you don't have to worry about
maintaining your position in the law firm and you don't have to
keep a time sheet.
So, it's a fabulous job and most judges that I've known
have thoroughly enjoyed it. It's a great honor that you've been
given to be nominated and I expect things should go forward in
a timely manner. I don't believe that any of you need to be
held up based on what I know at this time. So, we'd like to see
you get your vote as soon as reasonably possible.
Senator Whitehouse. I thank the Ranking Member very much
for that. We have already, without objection, put my complete
opening statement into the record. We have already, without
objection, put the remarks by Senator Robert C. Byrd in favor
of the nomination of Judge Berger, at the request of Senator
Rockefeller, into the record.
I would also ask unanimous consent that the statement of
the distinguished Chairman of the Senate Judiciary, Patrick
Leahy, be added to the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Whitehouse. The full statement of Ignacia Moreno. I
appreciate very much that she shortened her statement, but we
would like to have her full statement be a matter of record in
these proceedings.
[The prepared statement of Ms. Moreno appears as a
submission for the record.]
Senator Whitehouse. And finally, we have a file folder full
of letters of support for Ms. Moreno from a great number of
people. I will not read them all off, but they include: Lois
Schiffer, who was a previous occupant of that position; Steven
Solau, who's the former Chief of the Environment Crimes section
at the NRD; and the Center for International and Environmental
Law; OCEANA, Protecting the World's Oceans; the Hispanic
National Bar Association; the National Hispanic Leadership
Agenda; the National Council of La Raza; the current and past
chairs of the American Bar Association, Section of Environment,
Energy and Resources; and I promised I would not read them all
so I will not.
[Laughter.]
Senator Whitehouse. But there is a hefty file of support.
Without objection, they will be made a part of the record.
[The letters appear as a submission for the record.]
Senator Whitehouse. As I said earlier, the hearing will
remain open for an additional week for the responses and for
any other materials that anybody should seek to add to the
record, and then we will proceed through the remainder of the
nomination process. But I wish you all well. I congratulate you
on the achievements that have brought you here today.
The hearing is adjourned.
[Whereupon, at 3:55 p.m. the Committee was adjourned.]
[Questions and answers and submission for the record
follow.]
NOMINATION OF JACQUELINE H. NGUYEN, OF CALIFORNIA, TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA; EDWARD MILTON CHEN, OF
CALIFORNIA, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
CALIFORNIA; DOLLY M. GEE, OF CALIFORNIA, TO BE DISTRICT JUDGE FOR THE
CENTRAL DISTRICT OF CALIFORNIA; AND RICHARD SEEBORG, OF CALIFORNIA, TO
BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA
----------
WEDNESDAY, SEPTEMBER 23, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, Pursuant to notice, at 2:34 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Al Franken,
presiding.
Present: Senators Franken, Feinstein, and Sessions.
OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Senator Franken. Good afternoon. The hearing will come to
order.
I want to welcome everyone to today's hearing of the Senate
Judiciary Committee. Today we will hear from four nominees. All
four nominees are for the Federal district courts in
California, so I would like to extend a special welcome to my
distinguished colleague Senator Boxer, who I believe will be
here in just a few moments to introduce each of our nominees,
and perhaps Senator Feinstein will also be able to make it.
Unfortunately, she is on the floor right now managing the
interior appropriations bill, and if she cannot make it, she
sends her apologies.
The nominees being considered are: California Superior
Court Judge Jacqueline Nguyen to sit on the U.S. District Court
in Los Angeles; U.S. Magistrate Judge Edward Chen to sit on the
U.S. District Court in San Francisco; Dolly Gee to sit on the
U.S. District Court in Los Angeles; and U.S. Magistrate Judge
Richard Seeborg to sit on the U.S. District Court in San
Francisco.
Although I have only been here a short time--there is
Senator Boxer. Welcome.
Senator Boxer. Thank you.
Senator Franken. Although I have only been here a short
time, I was able to participate in the historic nomination of
the first Latina appointed to the Supreme Court. Today's
hearing is also a historic one both for the Federal courts and
for the Asian American Community. As the Congressional Asian-
Pacific American Caucus recently pointed out in a letter to the
Committee, Asian Americans and Pacific Islanders are among the
fastest-growing racial groups in the United States. Yet of the
Nation's 875 active Article III judges, only eight are Asian
American or Pacific Islander. Should today's nominees be
confirmed, that number would rise to 11.
In addition, we would be confirming the first Asian
American judge ever to sit on the U.S. District Court for the
Northern District of California, which includes San Francisco
and the Bay Area, the first Vietnamese American woman to serve
as a U.S. district judge and the first Chinese American to sit
as a U.S. district judge. So this is an important hearing, and
I want to thank representatives from the National Asian and
Pacific American Bar Association, the Asian Pacific Bar of
California, and the Asian American Justice Center for being in
attendance today.
I would also like to briefly point out something about two
of the nominees today. Both Judge Seeborg and Judge Nguyen have
experience in prosecuting cases of fraud--in particular, Ponzi
schemes. These corrupt business practices have recently come to
light across the country. Unfortunately, in my home State of
Minnesota, with the case of Tom Petters and his alleged $3.5
billion scheme, it is extremely important that we have judges
equipped with the financial experience to handle these cases,
and I look forward to hearing from both of them on their
experience with these cases.
In closing, I would like to outline how the hearing will
proceed. After the Ranking Member Senator Sessions makes his
introductory remarks, the Senator from California, Senator
Boxer, will introduce the nominees and I believe also will
Senator Feinstein, who is now here sitting to my left. And then
each Senator on the Committee will have a 5-minute round with
the panel.
Now I will turn it over to my distinguished Ranking Member
Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, and I think we
should note the meteoric rise you have achieved here.
[Laughter.]
Senator Franken. Thank you.
Senator Sessions. It gives new meaning to the words
``meteoric rise.'' Thank you. You are an active, participating
member of this Committee, and I hope you enjoy it. And I think
you are from our conversations.
We welcome these nominees and look forward to hearing
from--I see Senator Boxer. I know she is ready to talk. Each
has an impressive resume and fine credentials, and I look
forward to participating in the discussion.
Senator Franken. Thank you, Senator Sessions.
Senator Feinstein, would you like me to go to Senator
Boxer.
Senator Feinstein. Yes, please.
Senator Franken. Senator Boxer, I would like to welcome you
again.
Senator Boxer. I think it would be wonderful if Senator
Feinstein went first. She has so many more to introduce, and I
would defer to her since she is on the Committee. And, by the
way, I just want to say thanks for her hard work on the floor.
Senator Franken. Well, in that case, since I am the
Chairman, I will make the decision. Let me see.
[Laughter.]
Well, I will defer to Senator Boxer's judgment and
recognize Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, and
to my colleague, I would only say so far, so good down on the
floor. But thank you very much, and thank you for being here.
I would like to begin by introducing Judge Jacqueline
Nguyen. She has been a judge of the California Superior Court
in Los Angeles County since 2002 when she was appointed by
Governor Gray Davis. Before becoming a judge, she served as a
Federal prosecutor in the Los Angeles United States Attorney's
Office for 7 years. She began in the Public Corruption and
Government Fraud Section and was promoted to be Deputy Chief
for General Crime in 2000.
During her time as a prosecutor, Judge Nguyen led a 2-3
year undercover investigation into the filing of false
applications for United States visas. In this case, Judge
Nguyen secured the first ever conviction of a defendant for
providing material support to a designated foreign terrorist
group.
Judge Nguyen also handled an important wiretap
investigation of a Russian organized crime group that was
smuggling sex slaves into the United States from the Ukraine.
She received an impressive list of accolades for her work as a
prosecutor. In 2002, she was awarded the Director's Award for
Superior Performance as an Assistant U.S. Attorney. In 2000,
she received a special commendation from FBI Director Louis
Freeh for her work on the material support of terrorism case.
And in 1996 and 1997, she received two commendations for
sustained superior performance as an Assistant U.S. Attorney.
Judge Nguyen has also experienced working 2 years on commercial
cases at a private law firm.
I want to mention one other thing. Judge Nguyen's personal
story is one that to me, and I believe to Senator Boxer, really
shows how fortunate we all are to live in the United States.
Judge Nguyen and her family came to California in 1975 from
South Vietnam. They lived initially at Camp Pendleton before
moving to Los Angeles where her parents worked in and later
owned a series of doughnut shops. Judge Nguyen helped her
parents in their shop during her high school years, and she
continued working with them while she went on to graduate from
Occidental College and the University of California Los Angeles
School of Law.
Judge Nguyen will be the first Vietnamese American woman to
serve as a United States district judge. My selection Committee
in California highly recommended Judge Nguyen to me for the
district court, and I was proud to recommend her to the
President. She has been rated well qualified by the American
Bar Association.
So I would just like to recognize that and say how welcome
she is here today.
Senator Franken. Thank you, Senator Feinstein.
Senator Boxer.
PRESENTATION OF DOLLY M. GEE, NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. BARBARA BOXER, A
UNITED STATES SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Mr. Chairman, thank you so much. I am
honored to be here today to introduce Dolly Gee and welcome all
of our California nominees and their families, and I want to
add my congratulations to them all. Each of them comes to you
so well qualified and well suited for the responsibilities that
we hope they will take on.
Senator Feinstein and I share the responsibility in
California for providing advice and consent to the President on
judicial nominations. I am very proud of the way we do it. Our
bipartisan judicial advisory committees have vetted all of
these nominees, and they have given them their highest
recommendation. We are united in our admiration for the
nominees, all of whom are respected by their colleagues in the
California legal community, and they will all make outstanding
additions to the Federal bench.
I do want to say a few words about the nominee whom I had
the pleasure of recommending to the President, Dolly Gee. And,
Dolly, would you stand, please?
Dolly is the daughter of parents who came to the United
States from a small farming village in southern China. Her
father was a World War II veteran, and he worked as an
aerospace engineer on projects such as the Space Shuttle and
the Apollo mission. Dolly's mother, who is with us today--and I
would ask, Mr. Chairman, if it is OK with you and Senator
Sessions, if I may ask her to stand, Dolly's mother. Is that
all right?
Senator Franken. Absolutely.
Senator Boxer. Where is she? She will just show you who she
is.
Senator Franken. Welcome.
Senator Boxer. And she was a garment worker who never
taught Dolly to sew because she did not want her daughter to
have to stitch clothes for a living. And this touches us all, I
think. Her mom's experience as a seamstress helped inspire
Dolly to pursue a career in employment law, to seek equal and
fair treatment for workers.
Dolly graduated summa cum laude from UCLA in 1981, and then
she received her law degree from the same university in 1984.
After a Federal clerkship in the Eastern District of
California, she began her career in private practice at the
firm of Schwartz & Steinsapir in Los Angeles. In 1994,
President Clinton appointed Dolly to a 5-year term on the
Federal Service Impasses Panel, acting as a mediator and
arbitrator in hundreds of disputes between Federal agencies and
the workers. She has also served as an arbitrator for Kaiser
Permanente, helping to resolve medical and contract claims.
In these roles--and I think this is so important--she has
learned to listen to all sides and dispassionately apply the
law to the facts, skills that are so essential as a judge.
Dolly has been widely praised for her work promoting racial
tolerance in Los Angeles by building diverse coalitions among
various bar associations. She is a co-founder of the Asian
Pacific American Bar Association of Los Angeles county and the
Multicultural Bar Alliance and served as president of the
Southern California Chinese Lawyers Association.
As with Ms. Nguyen, Dolly's nomination is historic. If
confirmed, she would be the very first Chinese American woman
in U.S. history to serve as a Federal district court judge. Her
nomination is a source of pride to so many people, not just to
her family--to her Mom, who is here today, and to the Asian
American Community--but to everyone who believes that our
Federal courts should reflect the diversity of this, the
greatest country in the world.
And I have to say it is such an extraordinary moment, and I
would say to our Chairman, Senator Franken, it is a great day
to be sitting in that chair because here is who is making
history today. We heard of the two women. If confirmed, Judge
Edward Chen, a respected former civil rights lawyer and the
first Asian American magistrate judge in the Northern District,
would take another historic step as the first ever Asian
American district court judge for the Northern District.
So we have all of this making history today, and here is
the important thing. Senator Feinstein and I have one direction
to our committees: Send us the best. That is all we want. Send
us the best. It is not partisan. I, frankly, have never known
one person that I have recommended. It just so happens I never
have known them personally. They have come through this
wonderful system that we have created here. And so, clearly, I
am very proud today. And I am so hopeful that the Committee
will act to confirm these nominees quickly.
Federal judges across the country, and particularly in
California, are carrying a large caseload, backlogs, due to the
fact that we have not updated the number of Federal judgeships
in 20 years. And I know Senator Feinstein has been working long
and hard on this. One of our districts, the Eastern District of
California, carries the highest number of case filings per
judge in this country, an astounding 1,106 per judge. And I say
to Senator Sessions, who knows what that kind of a caseload is,
this is quite an extraordinary number of cases to be carrying-
1,106 in the Eastern District of California. And two more
districts, I say to my friends, the Central and the Northern
Districts, are also among the top ten in the country in terms
of these caseloads.
Our courts need help now. This is a momentous day, and I am
very happy to be with you, and I am looking forward to your
swift action. And thank you very much for your allowing me to
speak today.
Senator Franken. Thank you, Senator.
Senator Feinstein, would you also introduce Judge Chen and
Judge Seeborg.
Senator Feinstein. I would be happy to, and let me thank my
friend and colleague for being here, and let me also thank you
for bringing to the attention of both Senator Franken and
Ranking Member of the Judiciary Committee, Senator Sessions,
the fact that we are really under-judged in California, and
particularly in the Eastern District. So I very much appreciate
your comments. Thank you.
I would like to now introduce Judge Edward Chen. Judge,
would you stand, please? Right there. And, Judge Nguyen, would
you stand, please? I did not do that. Thank you very much.
Judge Chen has served as a United States magistrate judge
in the Northern District of California for the last 8 years. He
was appointed to that position by a merit-based selection
Committee and was recently reappointed to serve a second 8-year
term after a thorough review of his work, detailed confidential
feedback from litigants, and insights from district judges.
Before he was appointed to the Federal magistrate bench,
Judge Chen worked as a staff attorney at the American Civil
Liberties Union Foundation of Northern California and as a
litigation associate at the law firm of Coblentz, Cahen, McCabe
& Breyer. Judge Chen was part of the legal team that
successfully represented Fred Korematsu in a suit to have his
conviction removed for failing to report to an internment camp
during World War II. Judge Chen worked as a law clerk to United
States District Judge Charles Renfrew and to Judge James R.
Browning on the United States Court of Appeals for the Ninth
Circuit, and he is an Order of the Coif graduate of the
University of California-Berkeley Boalt School of Law.
Judge Chen has served as a master of the Edward J.
McFetridge American Inn of Court, which is a new association
for me, and as Chair of the Federal Courts Committee of the
California Commission on Access to Justice and as an appointee
to various Ninth Circuit committees. In 2007, he was named the
Judge of the Year by the Barristers Club of San Francisco.
Judge Chen was unanimously recommended to me by my
bipartisan selection Committee in California, and I recommended
him to the President. He has been rated well qualified by the
American Bar Association. Judge Chen was the first Asian
American appointed to be a magistrate judge in Northern
California, and as has been said about others, he would be the
first to sit--Asian male, that is, to sit as a United States
district judge in the district, if confirmed.
I would also like to introduce Judge Richard Seeborg. Would
you stand, please? Thank you very much. Like Judge Chen, Judge
Seeborg has been a United States magistrate judge in the
Northern District of California since 2001. He was recently
reappointed to a second term after a lengthy review process. He
sits in San Jose, California, where he has presided over many
intellectual property cases coming out of Silicon Valley. He
has a special expertise in this area and has made speeches in
places as far away as Chile and India about intellectual
property rights enforcement.
Before stepping onto the Federal bench, Judge Seeborg
worked as a Federal prosecutor and as a partner at a private
law firm. From 1991 to 1998, he prosecuted white-collar crime
cases as Assistant U.S. Attorney in San Jose. He brought
charges of wire fraud, high-tech crime, tax evasion, and money
laundering, and he was co-lead counsel in a case involving
money swindling by a mortgage loan company. He also
successfully prosecuted a manufacturer of GPS devices for
exporting goods from the UAE to Iran without a valid customs
license.
For 12 years, Judge Seeborg litigated complex civil cases
as an associate and then a partner at the law firm of Morrison
and Foerster. His work at the law firm gave him experience
ranging from contract law to intellectual property law to
antitrust. He is a summa cum laude graduate of Yale and a
Harlan Fiske Stone Scholar at Columbia University School of
Law. He was also unanimously recommended to me by my judicial
screening Committee in California, and I have subsequently
recommended him to the President, and he finds himself here
today.
So welcome, Judge Seeborg, and thank you very much, Mr.
Chairman.
Senator Franken. Thank you, Senator Feinstein, and thank
you coming from the floor where I know you are busy managing
the interior appropriations bill.
Now I would like all the nominees to please stand and take
the oath. Raise your right hand. Do you confirm that the
testimony you are about to give the Committee will be the
truth, the whole truth, and nothing but the truth, so help you
God?
Judge Nguyen. I do.
Judge Chen. I do.
Ms. Gee. I do.
Judge Seeborg. I do.
Senator Franken. Well, thank you and please be seated.
Judge Nguyen--do I have the pronunciation right? Because I
said ``Noo-in.''
Judge Nguyen. I pronounce it ``nwin.'' Thank you, Mr.
Chairman.
Senator Franken. Sorry. You are now free to give any
opening remarks and also to introduce any family members who
might be here today.
STATEMENT OF HON. JACQUELINE H. NGUYEN, TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Judge Nguyen. Thank you, Mr. Chairman. It is my honor and
privilege to appear before you this afternoon. I would like to
thank President Obama for nominating me. I would like to thank
Senator Feinstein for recommending me and for that very kind
introduction, and Senator Boxer for her support as well. I
thank you, Mr. Chairman, for presiding over the hearing today
and Senator Leahy for scheduling this hearing. I also would
like to thank the Ranking Member, Senator Sessions, and the
other Committee members as well.
I am very proud to introduce my family members who are
present to support me this afternoon: my husband, Pio Kim; my
children, 10-year-old Nolan and 7-year-old Avery; my mother-in-
law, Hyo Soon Kim; and my mother, Hoa Nguyen. I also have other
supporters----
Senator Franken. I would just like to say welcome to your
family.
Judge Nguyen. Thank you. I have other supporters present,
and I would like to acknowledge and thank them as well.
At home, I have many, many family members and friends
watching the live webcast, and I want to acknowledge them and,
in particular, acknowledge my father-in-law, Mr. Suh Chang Kim,
and my other father, Binh Nguyen.
Thank you, Mr. Chairman.
[The prepared statement of Judge Nguyen appears as a
submission for the record.]
[The biographical information of Judge Nguyen follows.]
Senator Franken. Absolutely. Thank you.
Judge Chen, please make an opening statement, if you would
like, and also introduce your family members who are here.
STATEMENT OF HON. EDWARD MILTON CHEN, TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF CALIFORNIA
Judge Chen. Thank you, Mr. Chairman. I do not have a formal
opening statement, but I, too, would join in thanking, first of
all, both of my home-State Senators, Senator Feinstein and
Senator Boxer, for their support and kind words, and
particularly Senator Feinstein for making the recommendation to
the President. And, of course, I want to thank President Obama
for placing his trust and confidence in me in making that
nomination, and to you, Mr. Chairman, in chairing this meeting
and to Ranking Member Sessions for participating in today's
session. So thank you very much.
I am joined by a portion of my family today. With me from
California is my wife of 29 years, Janet; my daughter of 18
years, Tara; my brother-in-law, Laurence Lee; my aunt and uncle
who have traveled all this way to be with me, Robert and Ellen
Wong. And I am especially proud and privileged to have with me
my staff who decided to come here, knowing that I am completely
useless without them, so they decided to support me, and I
appreciate that: Leni Doyle, my judicial secretary; Betty Lee,
my courtroom deputy; and Shao-Bai Wu, my law clerk.
And if I may, I just want to say a brief word about three
people who are not here today.
Senator Franken. Well, I want to welcome your family, and I
know exactly how you feel about your staff.
[Laughter.]
Judge Chen. Thank you. I want to mention my son, Luke, who,
because of his special needs, is not able to make the cross-
country trip. But he is here in spirit, and I want to state for
the record that today is his birthday, and so I want to----
Senator Franken. Happy birthday, Luke.
Judge Chen. Thank you. And I also finally would like to pay
tribute to my parents. My father came to this country in the
1920's on a visa with nothing more than $20 in his pocket and a
suitcase full of consigned goods, looking to pursue the
American dream. My mother came in 1939 from war-torn China to
be reunited with her family in San Antonio, Texas, from whom
she had been separated for nearly 20 years. My father worked
very hard to provide financial security for my family, and when
he became ill and passed away when I was very young, my mother
was tasked with the burden of raising four boys and running the
family business. And although neither of them lived to see this
day, their courage, their perseverance, their dedication to
family, and commitment to the community resides with me and
continues to inspire me.
Thank you, Mr. Chairman.
[The prepared statement of Judge Chen appears as a
submission for the record.]
[The biographical information of Judge Chen follows.]
Senator Franken. Thank you, Judge Chen.
Ms. Gee, we have met your Mom, but I want to say welcome
once again and thank you for coming. And any opening statements
you would like to make, please, now would be a good time.
STATEMENT OF DOLLY M. GEE, TO BE DISTRICT JUDGE FOR THE CENTRAL
DISTRICT OF CALIFORNIA
Ms. Gee. Thank you, Chairman Franken. I would like to thank
President Obama for nominating me to the Central District court
bench. I would also like to thank Senators Feinstein and Boxer
for their support, and Senator Boxer for her kind and gracious
introduction. I would also like to thank you, Chairman Franken,
and Ranking Member Sessions and all of the other members of the
Judiciary Committee for considering my application.
At this time, I would like to introduce once again my
mother, Helen Gee, who I am blessed to have here with me to
experience this occasion.
Senator Franken. Welcome.
Ms. Gee. And I also would like to introduce other people
who have come to support me at this hearing from afar: my
cousin, Lily Lee; three friends of mine who are like sisters to
me: Margo Feinberg, a partner of mine in my law firm; Kathryn
Hirano, from Los Angeles; and Betty Bolden.
Senator Franken. Welcome to you all.
Ms. Gee. If I may, I would like to also acknowledge some
people who would like to have been here but could not be here:
my husband, Albert Wong, who is watching the live webcast; as
well as my brother Kelvin and my sister-in-law Kay; and all of
my nieces and nephews; and members of my law firm who are also
watching.
[The prepared statement of Ms. Gee appears as a submission
for the record.]
[The biographical information of Ms. Gee follows.]
Senator Franken. Thank you, Ms. Gee.
Judge Seeborg.
STATEMENT OF HON. RICHARD SEEBORG, TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF CALIFORNIA
Judge Seeborg. Thank you very much, Mr. Chairman. I also
will forego an opening statement, but would like to join in
some of the thank-you's.
First of all, I would very much like to thank my home-State
Senators, Senator Feinstein and Senator Boxer, and also thank
Senator Feinstein for her very kind words, which I appreciate
very much.
I would like to express my profound gratitude to President
Obama for nominating me to this position of very high public
trust.
I would like to thank you, Mr. Chairman, for presiding
today and Senator Sessions also for participating in the
hearings and all the members of the Judiciary Committee.
I would like to acknowledge, as have some of my co-
nominees, some people who are not here: my parents, Ken and
Jane Seeborg, and my grandparents, Ken and Vivian Sartori. All
of them would so much have enjoyed being here, but they are
with me in spirit.
I would like to introduce some people who have come with me
today, several former colleagues and wonderful friends from my
days in the U.S. Attorney's Office: Marcia Jensen, Leo
Cunningham, and their daughter, Alexandra, who is a freshman at
GW here in Washington. I would also like to introduce my
college roommate who has come down from Boston, Jonathan
Kaufman, and his son, Nick Kaufman.
Thank you very much, Mr. Chairman.
[The prepared statement of Judge Seeborg appears as a
submission for the record.]
[The biographical information of Judge Seeborg follows.]
Senator Franken. Welcome to you all. We will start the
questioning now, and I guess I get to start.
Judge Nguyen, we got to confirm Judge Sotomayor, the first
Latina Justice of the Supreme Court, and now you are going to
be the first Vietnamese American woman to be a Federal district
court judge in the United States, if confirmed. How has this
experience affected you, being a first? And how does--or has it
affected your judging? And if so, how has it?
Judge Nguyen. When I was fortunate enough to be appointed
to the State court bench by Governor Gray Davis, I was the
first Vietnamese American judge ever appointed to that
position, and being a first of anything is both a privilege,
but also carries with it certain responsibilities. And I take
that responsibility very seriously.
I know and appreciate the fact that I am a role model for
so many people, not only from the Vietnamese American community
but also from other communities as well. And in my years as a
State court judge, I have done what I could in order to mentor
and guide young people who look to me for guidance and career
advice and encourage them to participate in the community and
to try to give back to the community.
But the process of judging does not change merely by my
ethnicity. The law remains the same, and my task as a judge is
to apply the law to the facts of each case.
Senator Franken. Thank you.
Judge Chen, I see that you are part of the pro bono team
that successfully represented Fred Korematsu in his effort to
overturn his conviction for failing to report to an internment
camp. Can you tell us more? It seems like a fascinating case.
Can you tell us more about the case?
Judge Chen. Yes. Well, as you probably know, 110 Japanese
Americans were interned during World War II out of fear that
they would commit sabotage or espionage along the West Coast,
and they were evacuated pursuant to military orders.
The Supreme Court ultimately upheld in a series of cases
both the curfew that was imposed on Japanese Americans as well
as their ultimate internment, even though two-thirds of those
were American citizens and included children, women, and the
elderly, none of whom were ever accused of disloyalty, none of
whom ever were given a hearing.
Those cases I think live in infamy for many Americans as
decisions that were wrongly decided. The coram nobis case in
which I participated added some new information to that, and
that is, what was discovered some 40 years after the fact
through researchers going through the archives was that the
United States Justice Department had in its possession a number
of documents which contradicted its assertion that the order
was necessitated by military necessity; that there were, in
fact, reports from the FBI, from the Office of Naval
Intelligence, from the FCC that showed that there was not a
threat and that the rumors that had been circulated of
signaling and this sort of thing, in fact, had been
investigated and found to be unfounded.
And so once those documents were uncovered, the legal team
of which I was a part went back to court and petitioned for a
writ of coram nobis, a little-known writ, to essentially allege
that the United States Justice Department had withheld critical
evidence, material evidence from the court. And it was on that
basis that the conviction of Mr. Korematsu was overturned. And
I think the lesson that we learned from that is the importance
of having checks and balances and having meaningful judicial
review.
Senator Franken. Thank you, Your Honor.
Ms. Gee, I saw that you currently serve as an arbiter for
Kaiser Permanente for the independent arbitration system that
they have--an arbitrator. The job you are about to take is very
different. Can you speak to how serving as an arbitrator is
different than serving as a judge?
Ms. Gee. Serving as an arbitrator is somewhat different in
that the rules of evidence that would apply in a Federal
proceeding would not necessarily be applicable. There are
certain rules of evidence, but more relaxed with regard to
hearsay and other types of rules.
In many respects, however, it is similar. The ability to
listen and to learn, to dispassionately listen to the parties
present the facts of their case, and to apply whether it is
negligence principles or contract interpretation principles to
the situation at hand.
Those are skills that I believe are transferable to a
position as a U.S. district court judge, if I am fortunate
enough to be confirmed.
Senator Franken. Thank you. I have used up my time, so I
apologize to Judge Seeborg.
Judge Seeborg. That is quite all right, Senator.
Senator Franken. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
Judge Seeborg, good luck.
[Laughter.]
Judge Seeborg. Thank you, Senator.
Senator Sessions. There is some advantage being at the end
of the table there.
Judge Nguyen, I have an appreciation for Assistant United
States Attorneys, having been one before, and I was impressed
that you headed a 2\1/2\-year investigation that led to the
arrest of 35 individuals in several countries. That is a big
effort when you do those kinds of cases. It led to the first
successful prosecution in the United States for providing
material support and resources to a designated foreign
terrorist in violation of 18 U.S.C. 2339.
Do you believe that material support provision remains an
important tool for prosecutors?
Judge Nguyen. Well, it is up to the legislature to make the
law, and whatever the state of the law is, if I am fortunate
enough to be confirmed, I will faithfully apply it.
Senator Sessions. Well, I certainly agree with that, but as
you having worked with that statute, did you find it helpful in
your case to render justice?
Judge Nguyen. Well, certainly, when I handled that
prosecution, given the facts of that case, I obviously thought
that it was justified.
Senator Sessions. Well, I thank you for that good work and
believe it is something that you can take pride in.
Tell me about your understanding of precedents. Are you
committed to following the precedents of higher courts
faithfully and giving them full force and effect even if you
personally were to disagree with those precedents?
Judge Nguyen. Absolutely yes, Senator Sessions. That is how
I have conducted myself as a State trial court judge and how I
intend to conduct myself as a United States district court
judge, if I am fortunate enough to be confirmed.
Senator Sessions. Thank you very much.
Judge Chen, I will ask you the same question. Are you
committed to following the precedents of higher courts
faithfully and giving them full force and effect, even if you
personally disagree with the precedents or, I will add, the
policy results that may occur from your ruling?
Judge Chen. Absolutely, Senator Sessions. That requirement,
of course, is part of the rule of law which I respect and which
I have endeavored to apply. And I think that has particular
force with respect to the district court because we are the
subordinate court within the system, and we take our commands
from the circuit courts and from the Supreme Court.
Senator Sessions. As a magistrate judge, how did the--is
that the right word now?
Judge Chen. Yes, it is. The magistrate judge is fine.
Senator Sessions. I remember one magistrate judge, I wrote
him a letter and said, ``Dear Magistrate Judge,'' he thought
that was funny. I thought that was the right name. But how are
you allowed--various district judges give more or less power
and responsibility to magistrate judges. I am of the view
generally that they should be given responsibility that the law
allows for the most part. What kind of responsibilities were
you given in your court?
Judge Chen. Well, I am very fortunate, as Judge Seeborg, my
colleague, is, to be in the Northern District of California
where the judges have decided to give the full range of
responsibility permissible under Article III of the
Constitution to magistrate judges. So not only do we hear
matters that are assigned to us by the district judges, but we
have our own caseload. We are on the wheel, and our names are
drawn when cases are filed. And so long as the parties consent,
we have full jurisdiction over the case through disposition.
And so it is common for magistrate judges to rule on motions to
dismiss, summary judgment, to hold trials, and have those
matters appeal directly to the Ninth Circuit.
Senator Sessions. In the California Law Review, you wrote
this: ``Diversity enhances the quality of decisionmaking. In
addition to analyzing and applying the law, judges have to make
determinations that draw not so much upon the legal acumen but
on the understanding of people and human experiences. Such
experiences inform assumptions that affect legal decisions. At
trial and in evidentiary hearings, judges have to assess
credibility of witnesses. A witness' testimony may seem more
credible if it is consistent with the judge's knowledge or
experience and, conversely, less credible if it remains outside
the judge's experience. Simply put, a judge's lifetime
experiences affect the willingness to credit testimony or
understand the human impact of legal rules upon which the judge
must decide. These determinations require a judge to draw upon
something that is not found in the case, reports that line the
walls of our chambers; rather, judges draw upon the breadth and
depth of their own life experiences, upon the knowledge and
understanding of people and of human nature, and inevitably
one's ethnic and racial background contribute to those life
experiences.''
Does that statement accurately reflect your judicial
philosophy?
Judge Chen. Well, let me put that in context, if I can,
Senator. The point I was trying to make in that law review
piece was that there is a benefit to having a diverse
judiciary; that the judgments we make, some of those are based
on deductive reasoning and analysis of law, and sometimes they
are based on more intuitive analysis--judging the witness'
credibility, making a decision with respect to bail or
sentencing. That requires an understanding of human factors in
different--in various contexts.
And the point I was trying to make is that the broader the
breadth of experience both for an individual judge and
collectively as a court, I think the better the ability of
judges to make those assessments. And I tried to give some
illustrations in that piece about how the collegiality amongst
judges, whether it is a formal exchange amongst the members of
the Supreme Court or the court of appeals or the informal
exchange that often happens in the district court, in the
hallways and the dining rooms, that we learn from each other
about various perspectives, different perspectives, and life
experiences.
Senator Sessions. Well, you know, the average litigant
would be nervous if he thought a decision was being made on
what you judges talked about in the dining hall or in the
hallways. I mean, the case should be decided, should it not, on
the evidence introduced and the law properly applied to that
evidence?
Judge Chen. No, and I agree with that fully, and I did not
mean to suggest that cases are decided in a hallway. But----
Senator Sessions. Well, I am just raising this point
because it is something we have talked about before. I suppose
your experience might help you have insight into a witness'
credibility. Everybody has different experiences, and it might.
But I was a little concerned that you say you might understand
the human impact of legal rules upon which a judge must decide.
You know, the oath says that a judge should do equal
justice to the poor and the rich. I assume you would take that
oath and intend to follow that.
Judge Chen. Absolutely, and I did take that oath when I was
sworn in as a magistrate judge.
Senator Sessions. And that you would be impartial.
Judge Chen. Absolutely.
Senator Sessions. I know you served--what--18 years as
counsel for the American Civil Liberties----
Judge Chen. Sixteen years, actually.
Senator Sessions. Sixteen. Now, you were on their payroll
as a----
Judge Chen. As a staff attorney.
Senator Sessions. A staff attorney. Well, you know, the
ACLU has filed some excellent cases. They have filed some I am
not comfortable with.
Is my time up?
Senator Franken. Well, you are right, but I was giving
you--in my role as Chairman, I was giving you leeway because
you are the distinguished Ranking Member, and I was torn,
frankly.
[Laughter.]
Senator Franken. But I guess your time is up, and I would--
--
Senator Sessions. Well, one thing Senator Franken always
has tremendous skill at: timing.
[Laughter.]
Senator Franken. Thank you.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
I think I know where Senator Sessions is going, and let me
say this to him: Judge Chen has been a very fair magistrate
judge for 8 years. I have tested this, because I also am aware
he has been a fierce advocate prior to that time. And I might
have some differences of opinion with some of the things, and I
am going to raise one in a moment. But, nonetheless, he has
been examined by a Republican screening Committee and by a
Democratic screening committee for the position of magistrate
judge, and everybody has found he is fair.
I would like to just read on this subject one comment of
the Coalition of Northern California Asian American Bar
Associations, and it is this: ``He has made a successful
transition from a zealous advocate to a balanced and
conscientious adjudicator who is committed to the impartial and
active administration of justice. Judge Chen has earned a
reputation as an even-handed jurist who is constantly mindful
of the role that judges fulfill in our society.''
Senator Sessions. Well, I think a person can be a zealous
advocate and be a great judge.
Senator Feinstein. So let me ask a question that takes you
back a ways, because it was of some concern to me. In 1988, you
filed a brief challenging Federal railroad regulations that
require that certain employees be tested for drug use at
random. You made similar arguments in a series of articles
about the same time. As I understand it, the Supreme Court
disagreed with your position and held that these drug tests
were, in fact, constitutional.
So here is the problem--or here is the question, I should
say. I do not really believe there is a problem. Will you have
a problem as a district court judge following the Supreme
Court's law in this regard or any other?
Judge Chen. Absolutely not, Senator. The Supreme Court has
now ruled in a series of cases on that particular topic, the
permissibility or not of drug testing, and the law has now
evolved to a much clearer point than it was back in 1988. And I
take the decisions of the Supreme Court as my command, and I
would follow those.
And I would add that in my position as a magistrate judge
it is common, indeed routine, for us to impose mandatory drug
testing on pre-trial releasees, on probationers. And I have not
had a problem at all, even though one might think that it could
be at odds with my former advocacy.
I understand my role as a judge now is entirely different,
and my task is to apply the law as it is given to us and to the
facts of the case.
Senator Feinstein. Well, you come very well regarded, and
by a whole host of varying authorities. And I think you did
make that transition as advocate to judge. And I think you have
8 years under your belt to show that.
So with this in mind was the reason that I recommended you
and that your performance as a magistrate judge has been
sterling.
Judge Chen. Thank you, Senator.
Senator Feinstein. And I think you are to be complimented
on that.
You know, let me quickly ask this of all of the panelists.
I think the Ranking Member, Senator Sessions, essentially
referred to this. We hold precedent as very important and the
ability of a judge to be cognizant of precedent and to follow
it. I would like a comment from each of you as to whether you
would see yourself as bound by legal precedent. Judge Nguyen.
Judge Nguyen. Yes, I would absolutely be bound by
precedent. Sitting as a lower-court judge, that is my
obligation.
Senator Feinstein. Judge Chen.
Judge Chen. I would, Senator, and I have a fairly lengthy
record of published opinions now as a magistrate judge.
Senator Feinstein. Yes, you do.
Judge Chen. And I think you would see that I adhere to
precedent and try to read the precedent as best I can.
Senator Feinstein. Judge Gee.
Ms. Gee. Not quite ``Judge Gee'' yet, but----
Senator Feinstein. Oh, I am sorry.
[Laughter.]
Senator Feinstein. Almost.
Ms. Gee. If confirmed as a judge, I would most definitely
take very seriously my obligation to apply the precedent of the
circuit as well as of the United States Supreme Court.
Senator Feinstein. Thank you.
Judge Seeborg.
Judge Seeborg. Senator, I believe I have done that in my
tenure as a magistrate judge, and I can give you that assurance
that, if confirmed, I will continue to follow precedent.
Senator Feinstein. Thank you very much.
Those are my questions. Thank you.
Senator Franken. Thank you, Senator Feinstein. Thank you,
Ranking Member Sessions.
Before I adjourn, the Committee has received a number of
letters from individuals and organizations who are supporting
the nominees before us today. Just to name a few, we have a
letter from the Congressional Asian Pacific American Caucus in
support of Judge Nguyen, Judge Chen, and Ms. Gee; testimony
from the National Asian Pacific American Bar Association and
Asian American Justice Center in support of these three
nominees; a letter from the Asian Pacific Bar of California;
and a letter from six Northern California Asian American Bar
Associations in support of Judge Chen. So, without objection, I
would like to submit all these letters and testimony for the
record.
[The information appears as a submission for the record.]
Senator Franken. I would also like to introduce Chairman
Leahy's opening statement into the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Sessions. Mr. Chairman, briefly, could I ask one
more question?
Senator Franken. Absolutely.
Senator Sessions. A lot of people have firm views about the
death penalty. I do not believe a judge should be disqualified
or a nominee disqualified if they do not support the death
penalty but if the--it is a lawfully applied penalty. My
question is: Do you have any personal views such that you would
be unwilling to carry out a death penalty if it was properly
imposed?
Judge Nguyen. No, I do not, Senator Sessions.
Judge Chen. I do not, Senator Sessions.
Ms. Gee. I do not, Senator Sessions.
Judge Seeborg. I do not, Senator.
Senator Sessions. Judge Chen, according to the website of
the ACLU, it believes the death penalty inherently violates the
constitutional ban on cruel and unusual punishment and
guarantees of due process and equal protection. Do you agree
with that?
Judge Chen. Well, those views are not the views of the
Supreme Court, and I abide by the rulings of the Supreme Court.
And I will tell you that I had one death penalty case that I
handled as a lawyer. In that case, we did not bring a broad
challenge, a sweeping challenge. It was very fact specific
about the case, the ineffective assistance of counsel that this
individual had and mistakes that were made by the trial judge.
So it was a very narrowly focused case, and we brought that
case to ensure that the person had fair process. It was not a
broad challenge.
Senator Sessions. Well, great attention is provided on
those cases by the courts, and that is legitimate. But I guess
my question is: Do you agree with this position of the
organization you worked for 16 years?
Judge Chen. Well, other than that one case, I have never
been involved in any of the policymaker or any of the broader
efforts of the ACLU on that issue. And I would affirm again
that as a district judge I see my role very differently today
than as an advocate some 15 years ago.
Senator Sessions. Ms. Gee, you were a member, I believe, of
the ACLU for years, 8 years. Do you agree with that legal
position that is on their website?
Ms. Gee. Ranking Member Sessions, I have never been in a
policy position or had any active role in the ACLU other than
to be a member. I take very strongly the position that as a
district court I would have the obligation to apply the law and
that I would set aside any personal opinions whatsoever in my
faithful adherence to the law.
Senator Sessions. Well, you know, you voluntarily joined an
organization. I usually do not join one I do not agree with.
But I think it is legitimate to ask those questions. We will
submit some more questions for the record.
Mr. Chairman, these are able nominees who I believe have
good integrity, and I appreciate the opportunity to ask these
questions.
Senator Franken. Thank you, Senator.
Senator Feinstein, any more questions?
Senator Feinstein. No, Mr. Chairman.
Senator Franken. Well, in that case, I would like to thank
Senator Feinstein and the distinguished Ranking Member. I also
want to thank each of you for your testimony today. You are all
very impressive, and I will hold the hearing opening for 1 week
for submission of questions for the nominees and other
materials.
The hearing is adjourned.
[Whereupon, at 3:27 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]