[Senate Hearing 112-72, Part 2]
[From the U.S. Government Publishing Office]
S. Hrg. 112-72, Pt.2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
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APRIL 13, MAY 4, and MAY 24, 2011
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Serial No. J-112-4
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PART 2
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Printed for the use of the Committee on the Judiciary
S. Hrg. 112-72, Pt.2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
APRIL 13, MAY 4, and MAY 24, 2011
__________
Serial No. J-112-4
__________
PART 2
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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April 13, 2011
STATEMENTS OF COMMITTEE MEMBERS
Page
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 1
Grassley, Hon. Charles, a U.S. Senator from the State of Iowa.... 2
prepared statement........................................... 358
PRESENTERS
Bennet, Hon. Michael, a U.S. Senator from the State of Colorado,
presenting Richard B. Jackson, Nominee to be U.S. District
Judge for the District of Colorado............................. 8
Brown, Hon. Scott P. (of Massachusetts), a U.S. Senator from the
State of Massachusetts presenting Lisa O. Monaco, Nominee to be
Assistant Attorney General, National Security, U.S. Department
of Justice..................................................... 10
Clyburn, Jame E., a Representative in Congress from the State of
South Carolina, presenting Henry F. Floyd, Nominee to be U.S.
Circuit Judge for the Fourth Circuit........................... 11
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Nelva G. Ramos, Nominee to be U.S. District Judge
for the Southern District of Texas............................. 4
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois
presenting Sara L. Darrow, Nominee to be U.S. District Judge
for the Central District of Illinois........................... 5
Graham, Hon. Lindsey, a U.S. Senator from the State of Southern
Carolina presenting Henry F. Floyd, Nominee to be U.S. Circuit
Judge for the Fourth Circuit................................... 6
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Nelva G. Ramos, Nominee to be U.S. District
Judge for the Southern District of Texas....................... 3
Udall, Hon. Mark (of Colorado), a U.S. Senator from the State of
Colorado presenting Richard B. Jackson, Nominee to be U.S.
District Judge for the District of Colorado.................... 7
STATEMENTS OF THE NOMINEES
Darrow, Sara L., Nominee to be U.S. District Judge for the
Central District of Illinois................................... 265
Biographical Information..................................... 267
Floyd, Henry F., Nominee to be U.S. Circuit Judge for the Fourth
Circuit........................................................ 12
Biographical Information..................................... 17
Jackson, Richard B., Nominee to be U.S. District Judge for the
District of Colorado........................................... 156
Biographical Information..................................... 157
Monaco, Lisa O., Nominee to be Assistant Attorney General,
National Security Division, U.S. Department of Justice......... 77
Biographical Information..................................... 83
Ramos, Nelva G., Nominee to be U.S. District Judge for the
Southern District of Texas..................................... 107
Biographical Information..................................... 108
QUESTIONS AND ANSWERS
Responses of Sara L. Darrow to questions submitted by Senator
Grassley....................................................... 314
Responses of Henry F. Floyd to questions submitted by Senator
Grassley....................................................... 317
Responses of Richard B. Jackson to questions submitted by Senator
Grassley....................................................... 320
Responses of Lisa O. Monaco to questions submitted by Senator
Grassley....................................................... 326
Responses of Nelva G. Ramos to questions submitted by Senator
Grassley....................................................... 340
SUBMISSION FOR THE RECORD
Anderson, Norma V., Senator, Retired, Lakewood, Colorado, letter. 343
Austin, H. Gregory, Denver, Colorado, March 18, 2011, letter..... 344
Beatty, Michael L., Attorneys at Law, Beatty & Wozniak, P.C.,
Denver, Colorado, March 21, 2011, letter....................... 346
Billy, Joseph, Jr., former Assistant Director of the FBI's
Counter Terrorism Division, April 5, 2011, letter.............. 347
Brennan, Daniel G., Chief of Police, City of Police Department,
Wheat Ridge, Colorado, April 8, 2011, letter................... 348
Campbell, Benton J., former Interim U.S. Attorney, Eastern
District of New York; Wan J. Kim, former Assistant Attorney
General, Civil Rights Division; Jeffrey A. Taylor, former U.S.
Attorney, District of Columbia; Matthew W. Fredrich, former
Acting Assistant Attorney General, Criminal Division; Chuck
Rosenberg, former U.S. Attorney, Eastern District of Virginia;
Ronald J. Tenpas, former Assistant Attorney General,
Environment and Natural Resources Division, April 4, 2011,
joint letter................................................... 349
Coors, Peter H., Golden, Colorado, March 21, 2011, letter........ 350
Davidson, Janice B., Chief Judge, Colorado Court of Appeals,
Denver, Colorado, March 29, 2011, letter....................... 351
Donoghue Elizabeth, Chair, Committee on the Judiciary of the New
York City Bar, New York, New York, June 14, 2011, letter....... 353
Enquist, Margie L., Judge, District Court, Golden, Colorado,
March 18, 2011, letter......................................... 354
Feeley, Michael F., Attorney at Law, Brownstein, Hyatt, Farber,
Schreck, Denver, Colorado, March 23, 2011, letter.............. 355
Gleen, Marcy G., Holland & Hart, Denver, Colorado, March 31,
2011, letter................................................... 356
Haddon, Harold A., Haddon, Morgan and Foreman, P.C., Denver,
Colorado, March 29, 2011, letter............................... 364
Hulon, Willie T., April 8, 2011, letter.......................... 366
Hutchison, Kay Bailey, a U.S. Senator from the State of Texas,
prepared statement............................................. 367
Kerry, John F., a U.S. Senator from the State of Massachusetts,
prepared statement............................................. 368
Lindsay, Sue, Golden, Colorado, March 25, 2011, letter........... 369
Maxfield, John R., P.C., Holland & Hart, Denver, Colorado, March
18, 2011, letter............................................... 370
Menendez, MJ, Deputy Chief-OCDETF, U.S. Attorney, Denver
Colorado, March 28, 2011, letter............................... 372
Michaels, Jane, Holland & Hart, Denver, Colorado, March 18, 2011,
letter......................................................... 375
Mink, Ted, Jefferson County Sheriff, Golden, Colorado, March 30,
2011, letter................................................... 376
Mudd, Philip, George Washington University, Homeland Security
Policy Institute, Washington, DC, statement.................... 377
Mukasey, Michael B., Debevoise & Plimpton, LLP, New York, New
York, April 5, 2011, letter.................................... 378
Munch, Christopher J., Judge, Golden, Colorado, March 17, 2011,
letter......................................................... 379
Nieto, Henry E., Judge, Court of Appeals, Denver, Colorado, March
29, 2011, letter............................................... 381
O'Donnell, Michael L., Wheeler Trigg O'Donnell LLP, Denver,
Colorado, March 24, 2011, letter............................... 382
Oeffler, Lily W., District Court Judge, Golden, Colorado, letter. 383
Paletta, Kevin, Chief of Police, Lakewood Police Department,
Lakewood, Colorado, March 30, 2011, letter..................... 384
Pautler, Mark C., Senior Chief Deputy District Attorney,
Jefferson County, Colorado, March 28, 2011, letter............. 385
Perlmutter, Ed, a Representatives in Congress from the State of
Colorado, March 30, 2011, letter............................... 387
Phillips, Paul D., Holland & Hart LLP, Denver, Colorado, March
22, 2011, letter............................................... 388
Polk, Dennis B., Attorneys at Law, Holley, Albertson & Polk, PC,
Golden, Colorado, March 30, 2011, letter....................... 389
Polidori, Tuthanne, Senior Judge, Morrison, Colorado, letter..... 391
Ritter, Bill, Jr., Denver, Colorado, April 1, 2011, letter....... 393
Storey, Scott W., District Attorney, Jefferson County, Colorado,
March 28, 2011, letter......................................... 395
Stuart, Ryan, Magistrate, State of Colorado, Golden Colorado,
March 25, 2011, letter......................................... 397
Suthers, John W., Attorney General, Denver Colorado, March 24,
2011, letter................................................... 399
Terwilliger, George J., III, White & Case, Washington, DC, April
12, 2011 letter................................................ 400
Thomas, David J., Attorneys at Law, O'Brien & Thomas, LLC,
Lakewood Colorado, March 31, 2011, letter...................... 402
Toll, Christopher H., P.C., Holland & Hart, Greenwood Village,
Colorado, March 28, 2011, letter............................... 403
Wainstein, Kenneth L., O'Melveny & Myers LLP, Washington, DC,
April 11, 2011, letter......................................... 405
Walsh, John F., U.S. Attorney, District of Colorado, U.S.
Department of Justice, Denver, Colorado, April 1, 2011, letter. 407
Weir, Peter A., Senior Chief Deputy District Attorney, Jefferson
County, Colorado, March 31, 2011, letter....................... 409
Wheeler, Malcolm E., Wheeler Trigg O'Donnell LLP, Denver,
Colorado, March 21, 2011, letter............................... 410
Witt, Maureen Reidy, Holland & Hart LLP., Greenwood Village,
Colorado, March 21, 2011, letter............................... 411
May 4, 2011
STATEMENTS OF COMMITTEE MEMBERS
Coons, Christopher A., a U.S. Senator from the State of Delaware. 423
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 424
prepared statement........................................... 724
Schumer, Hon. Chuck, a U.S. Senator from the State of New York,
prepared statement............................................. 727
PRESENTERS
Collins, Hon. Susan M., a U.S. Senator from the State of Maine
presenting Nancy Torresen of Maine, Nominee to be District
Judge for the District of Maine................................ 416
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina presenting Timothy M. Cain, of South Carolina, Nominee
to be District Judge for the District of South Carolina........ 422
Landrieu, Hon. Mary L., a U.S. Senator from the State of
Louisiana presenting Nannettee Jolivette Brown, of Louisiana,
Nominee to be District Judge for the Eastern District of
Louisiana...................................................... 418
McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri
presenting John A. Ross, of Missouri, Nominee to be District
Judge for the Eastern District of Missouri..................... 420
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting William F. Kuntz II, of New York, Nominee to be
District Judge for the Eastern District of New York............ 417
Snowe, Hon. Olympia J., a U.S. Senator from the State of Maine
presenting Nancy Torresen of Maine, Nominee to be District
Judge for the District of Maine................................ 414
Vitter, Hon. David, a U.S. Senator from the State of Louisiana
presenting Nannettee Jolivette Brown, of Louisiana, Nominee to
be District Judge for the Eastern District of Louisiana........ 419
STATEMENT OF THE NOMINEES
Brown, Nannette Jolivette, of Louisiana, Nominee to be District
Judge for the Eastern District of Louisiana.................... 464
Cain, Judge Timothy M., of South Carolina, Nominee to be District
Judge for the District of South Carolina....................... 557
biographical information..................................... 558
biographical information..................................... 465
Kuntz, William F., II, of New York, Nominee to be District Judge
for the Eastern District of New York........................... 514
biographical information..................................... 515
Ross, Judge John A., of Missouri, Nominee to be District Judge
for the Eastern District of Missouri........................... 612
biographical information..................................... 613
Torresen, Nancy, of Maine, Nominee to be District Judge for the
District of Maine.............................................. 424
biographical information..................................... 426
QUESTIONS AND ANSWERS
Responses of Nannette Jolivette Brown to questions submitted by
Senators Grassley and Klobuchar................................ 688
Responses of Timothy M. Cain to questions submitted by Senators
Grassley and Klobuchar......................................... 694
Responses of William F. Kuntz, II to questions submitted by
Senators Grassley and Klobuchar................................ 698
Responses of John A. Ross to questions submitted by Senators
Grassley and Klobuchar......................................... 702
Responses of Nancy Torresen to questions submitted by Senators
Grassley and Klobuchar......................................... 706
SUBMISSIONS FOR THE RECORD
American Bar Association, Hill, Benjamin H., III, Chair,
Washington, DC:
March 3, 2011, letter........................................ 711
February 17, 2011, letter.................................... 713
March 10, 2011, letter....................................... 715
December 1, 2010, letter..................................... 717
March 3, 2011, letter........................................ 719
Collins, Hon. Susan M., a U.S. Senator from the State of Maine,
prepared statement............................................. 721
Donoghue, Elizabeth, Chair, New York City Bar, April 27, 2011,
letter......................................................... 723
May 24, 2011
STATEMENTS OF COMMITTEE MEMBERS
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 729
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 733
prepared statement........................................... 1421
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1439
Schumer, Hon. Charles, a U.S. Senator from the State of New York,
prepared statement............................................. 1445
PRESENTERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Marina Garcia Marmolyo, Nominee to be U.S. District
Judge for the Southern District of Texas....................... 730
Christensen, Hon. Donna, a Representatives in Congress from the
State of Virgin Islands presenting Wilma Antoinette Lewis
Nominee to be Judge for the District Court of the Virgin
Islands........................................................ 731
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas, presenting Marina Garcia Marmolejo, Nominee to be U.S.
District Judge for the Southern District of Texas.............. 735
STATEMENT OF THE NOMINEES
Green, Michael C., Nominee to be U.S. District Judge for the
Western District of New York................................... 905
biographical information..................................... 906
Lewis, Wilma Antionette, Nominee to be U.S. District Court of the
Virgin Islands................................................. 1006
biographical information..................................... 1008
Marmolejo, Marina Garcia, Nominee to be U.S. District Judge for
the Southern District of Texas of Texas........................ 865
biographical information..................................... 867
Quagliotti, Major General Marilyn A., USA (ret.), Nominee to be
Deputy Director for Supply Reduction, Office of National Drug
Control Policy................................................. 1108
biographical information..................................... 1114
Six, Steve, Nominee to be U.S. Circuit Judge for the Tenth
Circuit........................................................ 734
biographical information..................................... 745
QUESTIONS AND ANSWERS
Responses of Michael C. Green to questions submitted by Senators
Grassley and Coburn............................................ 1126
People v. Abdallah Cases..................................... 1139
People v. Mateo Cases........................................ 1147
People v. Owens Cases........................................ 1269
Responses of Wilma A. Lewis to questions submitted by Senator
Grassley....................................................... 1361
Responses of Marina Garcia Marmolejo to questions submitted by
Senators Grassley and Coburn................................... 1372
Responses of Marilyn A. Quagliotti to questions submitted by
Senators Grassley and Coburn................................... 1375
Responses of Stephen N. Six to questions submitted by Senators
Grassley and Coburn............................................ 1388
SUBMISSIONS FOR THE RECORD
Christensen, Hon. Donna, a Representatives in Congress from the
State of Virgin Islands........................................ 1416
Croom, Charles E., Lt. Gen (USAF, Retired), Falls Church,
Virginia, letter............................................... 1421
District Attorneys Association of the State of New York, Derek P.
Champagne, President, Malone, New York, April 27, 2011, letter. 1423
Gilliband, Hon. Kirsten E., a U.S. Senator from the State of New
York, prepared statement....................................... 1425
Keeton, Douglas W., Small Business Owner, Veteran, Silver Spring,
Maryland, March 21, 2011, letter............................... 1438
McCaffrey, Barry R., General, (Retired) U.S. Army, March 2, 2011,
letter......................................................... 1442
Malone, Shawn-Michael, Senator of the Virgin Islands, St. Thomas,
Virgin Islands, May 23, 2011, letter........................... 1443
Speer, Gary D., Lieutenant General, U.S. Army (Retired),
Springfield, Virginia, March 21, 2011, letter.................. 1446
State Attorneys General, under-signed, John Suthers, Attorney
General of Colorado; Dustin McDaniel, Attorney General of
Arkansas; Tom Miller, Attorney General of Iowa; George Jepsen,
Attorney General of Connecticut; Joseph R. ``Beau'' Biden, III,
Attorney General of Delaware; Lawrence G. Wasden, Attorney
General of Idaho; Jack Conway, Attorney General of Kentucky;
Douglas F. Gansler, Attorney General of Maryland; Jim Hood,
Attorney General of Mississippi; Steve Bullock, Attorney
General of Montana; Michael A Delaney, Attorney Genera of New
Hampshire; Leonardo M. Rapadas, Attorney general of Guam; Greg
Zoeller, Attorney General of Idiana; James D.``Budy'' Cadwell,
Attorney General of Louisiana; Martha Coakley, Attorney General
of Massachusetts; Chris Koster, Attorney General of Missouri;
Catherine Cortez Masto, Attorney General of Nevada; Gary K.
King, Attorney General of New Mexico; Roy Cooper, Attorney
General of North Carolina; Kohn Kroger, Attorney General of
Oregon; Marty J. Jackley, Attorney General of South Dakota;
Mark L. Shurtleff, Attorney General of Utah; Rob McKenna,
Attorney General of Washington; Gregory A. Phillips, Attorney
General of Wyoming; Wayne K. Stenehjem, Attorney General of
North Dakota; Peter Kilmartin Attorney General of Rhode Island;
Robert E. Cooper, Jr., Attorney General of Tennessee; William
H. Sorrell, Attorney General of Vermont, and Darrell V. McGraw,
Jr., Attorney General of West Virginia, June 8, 2011, joint
letter......................................................... 1448
Stephan, Robert T., Attorney at Law, Overland Park, Kansas, June
20, 2011, letter............................................... 1452
Tacha, Deanell Reece, Duane and Kelly Roberts Dean and Professor
of Law, Pepperdine University School of Law, Malibu,
California, June 24, 2011, letter.............................. 1453
Turnbull, Charles W., former Governor, May 23, 2011, letter...... 1454
University of Kansas, School of Law, Stephen W. Mazza, Dean and
Professor of Law; James K. Logan, former Dean; Martin W.
Dickinson, former Dean; Michael J. Davis, former Dean, and
Michael H. Hoefich, former Dean, Lawrence, Kansas, June 27,
2011, joint letter............................................. 1455
Vaught Wilma L., Brigadier General, USAF, retired, President,
Women in Military Service for America Memorial Foundation,
Inc., Washington, DC, March 25, 2011, letter................... 1457
Warner, Hon. Mark, a U.S. Senator for the State of Virginia,
prepared statement............................................. 1458
ALPHABETICAL LIST OF NOMINEES
Brown, Nannette Jolivette, of Louisiana, Nominee to be District
Judge for the Eastern istrict of Louisiana..................... 464
Cain, Judge Timothy M., of South Carolina, Nominee to be District
Judge for the District of South Carolina....................... 557
Darrow, Sara L., Nominee to be U.S. District Judge for the
Central District of Illinois................................... 265
Floyd, Henry F., Nominee to be U.S. Circuit Judge for the Fourth
Circuit........................................................ 12
Green, Michael C., Nominee to be U.S. District Judge for the
Western District of New York................................... 905
Jackson, Richard B., Nominee to be U.S. District Judge for the
District of Colorado........................................... 156
Kuntz, William F., II, of New York Nominee to be District Judge
for the Eastern District of New York........................... 514
Lewis, Wilma Antionette, Nominee to be U.S. District Court of th
Virgin Islands................................................. 1006
Marmolejo, Marina Garcia, Nominee to be U.S. District Judge for
the Southern District of Texas of Texas........................ 865
Monaco, Lisa O., Nominee to be Assistant Attorney General,
National Security Division, U.S. Department of Justice......... 77
Quagliotti, Major General Marilyn A., USA (ret.), Nominee to be
Deputy Director for Supply Reduction, Office of National Drug
Control Policy................................................. 1108
Ramos, Nelva G., Nominee to be U.S. District Judge for the
Southern District of Texas..................................... 107
Ross, Judge John A., of Missouri, Nominee to be District Judge
for the Easter District of Missouri............................ 612
Six, Steve, Nominee to be U.S. Circuit Judge for the Tenth
Circuit........................................................ 734
Torresen, Nancy, of Maine, Nominee to be District Judge for the
District of Maine.............................................. 424
NOMINATIONS OF HENRY F. FLOYD, NOMINEE TO BE UNITED STATES CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT; LISA O. MONACO, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; NELVA G. RAMOS, NOMINEE
TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS;
RICHARD B. JACKSON, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE
DISTRICT OF COLORADO; AND, SARA L. DARROW, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS
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WEDNESDAY, APRIL 13, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3:02 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Al Franken,
presiding.
Present: Senators Durbin, Grassley, and Graham.
OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE
STATE OF MINNESOTA
Senator Franken. This hearing is called to order.
Before we begin, I would like to welcome all of you here
today to the Senate Judiciary Committee. Providing the
President our advice and consent on judicial and executive
nominations is one of the most important jobs we have as
Senators, and it is a special responsibility for the Judiciary
Committee.
Today we will consider five nominations: Judge Henry F.
Floyd, for United States Circuit Judge for the Fourth Circuit;
Lisa O. Monaco, for the Assistant Attorney General of the
Department of Justice's National Security Division; Judge Nelva
G. Ramos, for United States District Judge for the Southern
District of Texas; Judge Richard B. Jackson, for United States
District Judge for the District of Colorado; Sara L. Darrow,
for United States District Judge for the Central District of
Illinois.
We are fortunate to have some of the nominees' home State
Senators and Representatives here to introduce them, and we
will turn to them shortly.
But before we do, I will turn the floor over to my friend,
the Ranking Member, Senator Grassley, for his opening remarks.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Thank you, Mr. Chairman.
We have a nominee to be a Circuit Judge, and three to be
District Court Judges. In addition, we will hear from the
nominee to be Assistant Attorney General heading the National
Security Division, with the Department of Justice.
I join you all, as the Chairman has, in welcoming all of
you.
Ms. Lisa Monaco--Monaco, like the city of Monaco or the
state of Monaco, right?
Senator Franken. I believe it is a nation.
Senator Grassley. Nation.
Senator Franken. Municipality.
Senator Grassley. You do not have to convince them.
Senator Franken. It is a principality? OK. Thank you. Well,
Senator Graham is a huge gambler.
[Laughter.]
Senator Grassley. The National Security Division's mission
is to carry out the department's highest priority, combating
terrorism and other threats to national security. The division
was created in 2006 as part of the PATRIOT Act reauthorization.
Much of the reorganization creating the division was to
promote a unified approach to accomplishing its mission. The
structure of the division was designed to ensure greater
coordination between prosecutors and law enforcement agencies,
on the one hand, and the intelligence community on the other.
Tearing down this wall, enhancing investigatory tools,
streamlining national security investigations, and modernizing
investigative authorities to take account of new and emerging
technologies are some of the reforms that we have made. And
there is work to be done, as we have recently heard from the
FBI Director about this. Reauthorization of the critical tools
ought to be a priority of this committee.
I will continue to work with the Chairman in pursuit of a
permanent extension of the Lone Wolf provisions of the roving
electronic surveillance provision and of the business records
provisions.
In addition, I will work to preserve and strengthen other
tools available for our national security and law enforcement
professionals.
In addition, we are considering four judicial nominees.
Henry Floyd, sitting U.S. District Judge in South Carolina, is
nominated to be U.S. Circuit Judge.
We have already confirmed four of the President's nominees
to the fourth circuit. This is as many as were confirmed to
that Circuit during the two terms of President Bush. I would
note that eight of President Bush's nominees to the Fourth
Circuit were returned to the President, receiving no up or down
vote by the Senate.
We are also considering three District Court nominations.
They are Sara L. Darrow, to be U.S. District Judge for the
Central District of Illinois; Richard B. Jackson, for the
District in Colorado; and, Nelva Ramos, from the Southern
District of Texas. All of these vacancies are have been
declared to be judicial emergencies.
I would note that the Colorado vacancy could have been
filled years ago. Gregory E. Goldberg was nominated to this
seat in July of 2008 by President Bush and, as with many of
these nominees by Bush, the Committee took no action.
Mr. Chairman, I will not repeat the biographical
information of our nominees. I commend each of them for their
prior public service and for their willingness to continue in
public service.
I ask unanimous consent that the balance of my statement be
put in the record.
Senator Franken. Without objection.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Franken. Thank you, Senator Grassley.
As I said, we are fortunate to have some of these nominees'
home State Senators, and I think, in the case of Judge Floyd,
perhaps Representative Clyburn will be coming.
Let us start with Senator Cornyn, my good colleague from
Texas, who will introduce Judge Ramos.
Senator Cornyn. Thank you, Chairman Franken, Senator
Grassley, Senator Graham. If I may withhold, and I see the
senior Senator has just arrived just in time. If I could defer
to her, I would appreciate it very much.
Senator Franken. Absolutely.
Senator Hutchison.
Senator Hutchison. We always say that I am the senior
Senator, but he has the gray hair.
[Laughter.]
PRESENTATION OF NELVA G. RAMOS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, PRESENTED BY HON. KAY
BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman, for having this
hearing. And I am very pleased to be able to introduce our
nominee, Nelva Gonzales Ramos, who has been nominated to serve
as a district judge for the southern district in Corpus
Christi, Texas.
She graduated summa cum laude at Texas State University in
San Marcos with a degree in education. She then went on to
receive her juris doctorate from my alma mater, the University
of Texas Law School, where she, again, graduated with honors.
After growing up in Port Lavaca, Texas, Judge Ramos now
finds herself in the very same area serving as a district court
judge where she has been for the last 10 years. She began her
judicial career in 1997 as a municipal court judge in Corpus
Christi.
During these years, she has been routinely recognized by
the members of the Corpus Christi Bar Association as an
outstanding district judge. She has gained the respect of her
colleagues because of her demeanor on the bench. She is seen as
fair and thoughtful and is commended by her colleagues for her
skilled legal mind.
Now, I read in a newspaper interview about her, when we
nominated her, the President nominated her with our consent,
and one of the lawyers that appears in her court often said
that when she overrules his requests, which is not infrequent,
that she always explains why and he acknowledges that she is
usually right. So I think that is the mark of a good judge.
I know that she has a solid understanding of the law and is
well qualified, and I recommend her without reservation to the
committee.
Thank you, Mr. Chairman. And I thank my junior Senator.
Senator Franken. Thank you, Senator Hutchison.
Now, we will turn to Senator Cornyn, junior Senator.
Senator Cornyn. Thank you, Chairman Franken.
Senator Franken, I wonder if I might ask Judge Ramos and
her family to stand so we can identify them.
Senator Franken. Certainly. Welcome. Welcome to all of you.
PRESENTATION OF NELVA G. RAMOS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, PRESENTED BY HON.
JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you very much, Mr. Chairman. I saw
the judge's husband and son, but I did not see her when I came
in. So I am glad she is here.
Senator Franken. We will give her a chance to introduce
them, as well. That was very kind of you.
Senator Cornyn. Judge Ramos applied for this position, was
screened by the Federal Judicial Evaluation Committee that
Senator Hutchison and I have appointed, which is a bipartisan
Committee comprised of the very lawyers in the State of Texas.
As Senator Hutchison said, we are pleased to recommend her
to President Obama and am even more pleased that she is a
consensus nominee.
I believe her character, temperament, and her skills
demonstrate that she will apply the law faithfully and why she
has earned such broad support.
Judge Ramos' nomination, as I said, enjoys broad bipartisan
support. The Texas House of Representatives, for instance,
recently passed a resolution describing her as, quote,
``imminently qualified to serve as a Federal judge.'' That
resolution passed unanimously by both Republicans and
Democrats.
During her time on the bench, Judge Ramos has displayed a
commitment to protecting some of our most vulnerable citizens.
For example, she helped create the Nueces County district
domestic violence court, which she has served on for the past 3
years.
She has also been very active in her community, serving on
the Coastal Bend Council on Alcohol and Drug Abuse, on the
board of directors for the Corpus Christi chapter of the March
of Dimes, and as a mentor to students at Driscoll Middle School
in Corpus Christi, Texas.
As a member of the court, Judge Ramos will be replacing
Judge Hayden Head. After a lifetime of service to his country
and the United States Navy during the Vietnam war and 30 years
now on the Federal bench, Judge Head will be a difficult act to
follow. But I am confident Judge Ramos will rise to the
occasion and continue to do us all proud.
I urge my colleagues to join Senator Hutchison and me and
the people of our State in support of the nomination of Judge
Nelva Gonazales Ramos.
Thank you, Mr. Chairman.
Senator Franken. Thank you, Senator Cornyn and Senator
Hutchison. I know you both have very busy schedules. So thank
you very much, and return to your other work.
Senator Hutchison. Thank you for your courtesy, Senator
Franken.
Senator Franken. You bet. It appears that Senator Durbin
has arrived. Would you introduce Ms. Darrow for us?
PRESENTATION OF SARA L. DARROW, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS, PRESENTED BY HON.
RICHARD DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman.
I am pleased to introduce Sara Darrow, who has been
nominated to serve in the District Court for the Central
District of Illinois, and I thank my colleague, Senator Kirk,
for also joining in this nomination.
I want to thank Chairman Leahy and Ranking Member Grassley
for including Ms. Darrow in today's hearing and for giving me a
chance to say a few words about her nomination.
She is currently an Assistant United States Attorney for
the Illinois Central District, where she serves as the chief of
the violent crimes section and works out of the Rock Island
office. She has been nominated to fill the judgeship that was
vacated when Judge Joe Billy McDade took senior status last
year in Peoria.
Ms. Darrow was recommended to me by a bipartisan merit
selection committee I established to consider judicial
applications, and I was pleased to submit her name to the White
House and I am glad that she is here before us today.
I am also glad that she is joined by many members of her
family, including her husband, Clarence, and her six children.
You will have the chance to introduce your family when you make
your opening statement.
Ms. Darrow is a graduate of Marquette University and the
St. Louis University School of Law. While a college student at
Marquette, she interned in Washington, DC for our colleague,
Senator Carl Levin.
It was on Capitol Hill where she met and began dating her
husband, who was then working for Congressman Lane Evans.
Ms. Darrow began her legal career in private practice in
Rock Island, where she worked for 2 years before moving over to
the Henry County State's attorney's office. She served as
assistant state's attorney there from 1999 to 2000, then as
first assistant state's attorney from 2000 to 2003.
While serving at the state's attorney's office, she
prosecuted a wide range of state felony cases and tried to
verdict approximately 20 jury cases and over 100 cases before
the bench. In her capacity as first assistant, she also was
responsible for supervising staff attorneys and managing the
office caseload.
In 2003, Ms. Darrow became a Federal prosecutor, serving in
the Rock Island office of the central district U.S. Attorney.
She has investigated and prosecuted hundreds of defendants for
various Federal crimes, including gang offenses, drug
conspiracies, gun crimes, bank robbery, money laundering and
fraud. She has written and argued numerous appeals.
Starting in 2007, Ms. Darrow has served as violent crimes
chief for the U.S. attorney's office and as the office's
project safe neighborhoods coordinator and organized crime drug
enforcement tax force coordinator.
I know Senator Grassley will be interested in the fact that
Ms. Darrow has also served since 2003 as a special assistant
U.S. attorney for the southern district of Iowa. This is an
arrangement that the Illinois and Iowa U.S. attorneys' offices
have worked out to coordinate their effort.
She has an amazing, impressive record in the Rock Island
community, having volunteered for numerous organizations that
serve children and the disadvantaged, and she also is a very
proud mother.
Ms. Darrow, we are glad to have you here before us today
and I look forward to enthusiastically supporting your
nomination.
Senator Franken. Thank you very much, Senator Durbin.
And now I turn to my colleague from South Carolina, Senator
Graham.
PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT, PRESENTED BY HON. LINDSEY GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman.
It is my pleasure today to introduce to the Committee Judge
Henry Floyd. I have known Henry for a very long time. We
practiced law together in adjacent counties. He has been a
state court judge and a Federal judge for over 18 years. He was
appointed to the Federal bench by President Bush.
Representative Clyburn will be coming over from the House
in a bit to attest to the fact that Republicans and Democrats,
independents, libertarians, vegetarians, we all have a common
view of Judge Floyd and we believe he has got the best
temperament of anybody in South Carolina. And that is saying a
lot, because we have pretty patient people down there.
He has a tremendous background of being a trial judge. He
has been a litigator. He served in the State House. He has got
a terrific background, I think, to administer justice at the
Federal level. He was rated well qualified by the ABA. And I am
just proud to see this day come. It has been a long time in the
making, and I know, Henry, you will do a great job for the
Fourth Circuit and the people of this part of the United
States, and I look forward to getting you confirmed.
And it is an odd situation where I am nominating someone
and putting holds on all the judges at the same time. Nothing
personal to these judges. We have got a problem in Charleston
that I will share with you later, and I am going to leave here
to talk about a situation with our port.
But I hope, Mr. Chairman and to my colleagues, that this
will end quickly. This is a huge deal for the State of South
Carolina in terms of our economic future. And all of these
judges reflect the best in America when it comes to the law,
and Henry Floyd is a judge's judge, a person every lawyer who
has been before has nothing but praise. And I know you will
administer justice fairly at the Circuit Court level, and I
very much appreciate President Obama nominating you. This is
something he did not have to do, but he chose to do.
And when it comes to Representative Clyburn coming over
from the House, it speaks volumes about you, Henry, as a
person. So thank you very much.
Senator Franken. Thank you, Senator, and thanks for your
patience, and I know you have to go. And we will hope that
Representative Clyburn does make it.
But in the meantime, we will go to Senators Udall and
Bennet to introduce Judge Jackson.
First, Senator Udall.
PRESENTATION OF RICHARD B. JACKSON, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO, PRESENTED BY HON. MARK
UDALL, A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Udall. Thank you, Mr. Chairman, Senator Grassley,
Senator Durbin. It is a treat to be here today to introduce a
nominee for the Federal District Court bench in the District of
Colorado, Judge Brooke Jackson.
As you mentioned, I am joined here by my colleague, Senator
Bennet.
My firm belief is that Judge Jackson is exceptionally well
qualified to fill this judicial vacancy, and I would urge his
confirmation.
The President, as was mentioned, nominated Judge Jackson to
fill a vacant seat on the Federal district court of Colorado,
where a judicial emergency, Senator Grassley pointed this out,
has existed for several years due to a very heavy caseload.
Based on Judge Jackson's track record of judicial service
in Colorado, I have no doubt that he will serve with
distinction. Quite simply, he has the right judicial
temperament, the depth of experience, and a firm insistence on
adjudicating all cases in an impartial manner, consistent with
the law, qualities that I know we all look for in a Federal
judge.
Judge Jackson is originally from Montana. He excelled
academically and he graduated magma cum laude from Dartmouth
College and received his law degree cum laude from Harvard Law
School.
When he graduated, he heard the siren call of the west, Mr.
Chairman, and he had the good sense and good fortune to turn
his western roots to practice law in Colorado.
He is currently a judge in the first judicial district of
Colorado, where he has served for nearly 13 years. He has
served as the chief judge for the last 8. During his time on
the bench, Judge Jackson has presided over hundreds of trials
and sentenced nearly 5,000 criminal defendants.
Prior to his service on the bench, Judge Jackson spent 26
years with the Denver-based law firm of Holland & Hart. During
his time in private practice, Judge Jackson juggled a very busy
schedule to also serve as a part-time pro bono town prosecutor
on Bow Mar, Colorado.
Mr. Chairman, Senator Bennet and I enlisted a bipartisan
judicial selection advisory panel to help us make
recommendations to the President for court vacancies in
Colorado. Former Colorado Supreme Court Justice Rebecca
Kourlis, a Republican, co-chaired the advisory committee, with
Hal Haddon, a prominent Denver lawyer and Democrat.
When the process began, we had two vacancies on the
district court and our advisory panel worked tirelessly to
interview and put forward the most qualified candidates.
It was clear then and it is even clearer now that Judge
Jackson deserves the President's nomination. I was not
surprised when I learned that the American Bar Association
unanimously rated Judge Jackson as well qualified, which is
their highest rating, to serve as a Federal district judge.
Since Judge Jackson has been nominated, there has been an
outpouring of support from across the legal community and even
across party lines. He enjoys broad support from respected
Republicans, such as former U.S. Senate candidate Pete Coors,
Colorado Attorney General John Suthers, Scott Storey, the
district attorney of his own judicial district, and many
others. He also has the support of many members of my party,
including former Governor Bill Ritter, current U.S. Attorney
John Walsh, and Congressman Ed Perlmutter of the seventh
district, where Judge Jackson serves.
Mr. Chairman, even district attorneys, police chiefs,
sheriffs from across his district have come out in support of
his nomination, and, Mr. Chairman, I would like to submit all
the letters we have received thus far for the record.
Senator Franken. Absolutely, without objection.
[The letters appear as a submission for the record.]
Senator Udall. It is over 40 letters of the people I
mentioned and many others.
The nomination of Judge Jackson is one of those rare, at
least I think very notable times when Democrats and Republicans
are all speaking with one voice in support of Judge Jackson.
I want to thank you, Mr. Chairman, and members of the
Committee for affording me time this afternoon to introduce
Judge Jackson to all of you.
Thank you.
Senator Franken. Thank you, Senator Udall.
And I will go to my colleague, Senator Bennet.
PRESENTATION OF RICHARD B. JACKSON, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF COLORADO, PRESENTED BY HON. MICHAEL
F. BENNET, A U.S. SENATOR FROM THE STATE OF COLORADO
Senator Bennet. Thank you, Mr. Chairman. By the way, it
takes longer in some of our other committees to get to where
you are. So congratulations.
Senator Franken. Well deserved.
[Laughter.]
Senator Bennet. That is what I believe. You certainly look
the part.
And Senator Udall is right, we speak with one voice today.
Senator Durbin looks a little unsure.
[Laughter.]
Senator Bennet. I want to thank you and the members of the
Committee for holding this hearing on Judge Brooke Jackson to
serve on our United States District Court for the District of
Colorado.
I would also like to welcome the Jackson family here today.
I am proud to be here today with Mark Udall to introduce
Judge Jackson. His nomination, as Senator Udall said, is the
product of a thorough review by a bipartisan judicial
nomination commission in our state.
I support Judge Jackson's nomination and the work of our
confirmation and urge confirmation of this impressively
experienced candidate to the Federal bench.
Judge Jackson is a seasoned jurist. He has extensive
knowledge of a wide variety of types of cases important to the
people of the State of Colorado. His mean years overseeing
thousands of cases in Colorado's courts have prepared him now
to serve our Nation on the Federal bench.
Since his appointment to the state district court bench in
1998, he has dutifully served Colorado. Because of his judicial
temperament and skill on the bench, Judge Jackson was elevated
to chief judge of the first judicial district in 2003.
As chief judge, he is not only responsible for managing the
entire judicial team made up of 13 district court judges, eight
county court judges, eight magistrates, and a staff of 300,
Judge Jackson manages a caseload of 200 felonies, 200 civil
cases, and 50 domestic cases.
He has had some of the toughest cases come before him and,
by all accounts, from Republicans, such as our current Colorado
Attorney General, John Suthers, to Democrats, like our former
Governor, Bill Ritter, Judge Jackson has broad support.
I know Senator Udall plans to ask the committee, or he
already did, to add a number of letters of support from
prominent law enforcement officials and others in our state.
These letters run the gamut, I assure you, Mr. Chairman, across
Colorado's legal and law enforcement community.
Prior to his appointment to the state bench, Judge Jackson
worked in private practice for 26 years as a civil litigator.
He has also served as a prosecutor. His breadth of public and
private sector legal experience sets him apart. That is why
Senator Udall observed the American Bar Association rates him
unanimously well qualified. It is also why the leaders in our
state, from Pete Coors to John Walsh, have joined in support of
Judge Jackson's nomination.
Given the case backlogs in our judicial system, it is
especially important that we bring on someone with Judge
Jackson's breadth of experience to help make sure all
Coloradans have access to our courts. The Federal court system
needs to fill this vacancy as soon as practicable.
I am more than happy to provide the Committee with any
further materials or insight you may need as you process Judge
Jackson's nomination.
I would like to thank, again, the Committee for holding
this hearing today and join the array of Colorado voices urging
Judge Jackson's confirmation.
Thank you, Mr. Chairman, and I thank my other colleagues
here for their forbearance.
Senator Franken. Thank you, gentlemen.
Before we turn to the distinguished Senator from
Massachusetts, without objection, I will add to the record an
enthusiastic statement of support from his colleague, Senator
Kerry, for the nomination of Lisa Monaco.
And he writes the following: ``From her time as a Federal
criminal prosecutor, where she took on Enron, to her work in
the FBI director's office and the difficult and decisive days
following the 9/11 attacks, Lisa has doggedly pursued
justice and dedicated herself to strengthening the safety and
security of our Nation. I am confident that Lisa will do a
superb job in protecting our country.''
And without objection, I will include the entire letter in
the record.
[The prepared statement of Senator Kerry appears as a
submission for the record.]
Senator Franken. We turn now to my distinguished colleague
from Massachusetts, Senator Brown, to introduce Ms. Monaco.
PRESENTATION OF LISA O. MONACO, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, U.S. DEPARTMENT
OF JUSTICE BY HON. SCOTT P. BROWN, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Brown of Massachusetts. Thank you, Mr. Chairman and
Ranking Member and members of the committee. I just want to say
thank you for allowing me to speak and, obviously, to appear
here today to introduce Lisa Monaco, a nominee to be Assistant
Attorney General for the National Security Division. And I
offer my congratulations, as I have to her and her family.
She has been a dedicated public servant for many years, and
it is my honor to introduce her at this hearing.
I had the pleasure of speaking with Ms. Monaco yesterday in
my office at length and very much enjoyed our conversation, and
I found that she conveyed strong self-confidence and a
seriousness of purpose.
She has deep roots in Massachusetts, having been born in
Massachusetts and raised in Newton, and attended Newton public
schools before enrolling at Harvard. Her parents still live in
Newton. Her twin brother and his family live in Belmont. Her
eldest brother lives in Boston. And I'm sure--I know that the
family is very proud of her today.
When I met with her yesterday, we had a frank conversation
about the important role that the National Security Division
plays in keeping our Nation safe and secure, and I believe she
understands the incredible importance of the office for which
she is being nominated.
Former Attorney General Michael Mukasey wrote to this
Committee about her experience and stated that, ``has both
sound judgment and a keen understanding national security
law''.
I am pleased to learn that her background reflects an
understanding of the national security threats that we face, as
well as the operation of the Justice Department.
Currently, she is the principal associate deputy attorney
general and is a member of the senior management team for the
deputy attorney general and the attorney general.
She serves as the deputy attorney general's primary advisor
on a broad range of criminal, law enforcement, national
security, and civil matters, and assists the deputy attorney
general in the overall management and oversight of the
operations of the Justice Department.
From 2006 to 2008, she served as chief of staff to the
director of the FBI and she is a former prosecutor who served,
as you noted, Mr. Chairman--as Senator Kerry noted--on the
Enron task force.
She was among a small group of prosecutors drawn from
around the country and charged with investigating criminal
violations in connection with the collapse of Enron in 2001.
She received the attorney general's award for exceptional
service, the Department of Justice's highest award, for her
work as a prosecutor on that task force.
In closing, I look forward to a thorough and fair
examination of her record. The critical work of the National
Security Division demands no less.
So thank you, Mr. Chairman and Ranking Member and Senator
Durbin.
Senator Franken. Thank you, Senator Brown. Thanks for your
patience and arriving so early.
We would like to welcome, from the House of
Representatives, to speak on behalf of Judge Floyd and speak to
the bipartisan support for Judge Floyd, our colleague,
Representative Clyburn. Thank you for joining us.
PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT, PRSENTED BY HON. JAMES E.
CLYBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH
CAROLINA
Representative Clyburn. Thank you very much, Mr. Chairman.
Mr. Chairman, Senator Grassley, Senator Durbin, I want to thank
you all so much for allowing me to appear here today on behalf
of a long-time friend, Judge Floyd.
I was thinking, as I was searching this junk on my desk
trying to find the remarks that were prepared for me today,
what will I say without them. Well, I am without them. So I am
going to tell you what I know about Judge Floyd.
I first met Judge Floyd when I was running a state agency
in South Carolina, an agency to which I was appointed by then
Governor John West, an agency that was created to respond to
the times within which we lived coming out of the 1960s and the
early 1970s.
As you might imagine, Mr. Chairman, in those days, things
were quite contentious in South Carolina and in the early days
of that agency, I was not the first director of it, it got in
significant difficulty and the legislature was moving to defund
the agency and eliminate it. And I was asked by Governor West
to go to that agency and try to see what we could do to turn it
around.
I started looking for legislators that I could sit down
with and could get to understand exactly what it was that we
were trying to do in order to continue to move our state
forward.
In that search, I came upon Henry Floyd, a young legislator
from Pickens County, and when I looked into his background, I
was able, through those meetings, to forgive him because of his
northern roots, having been born in North Carolina. His parents
moved to Pickens County when he was a very young boy.
He, I noticed, had graduated from Wofford College in
Spartanburg, a United Methodist affiliated school, whose board
of trustees I was one time a member of.
I know that we all talk about judges being prepared, well
prepared for their work, and I think that all of you have his
background before you and I need not go into that.
What may not be shown on that paper that you have is the
temperament of Henry Floyd. I can tell you without question
that no one has ever been considered for a judgeship, no one
has ever served in a judgeship that has demonstrated the kind
of judicial temperament that you will find in Judge Henry
Floyd. And I am so pleased to be here today to be a part of
hopefully elevating him to the Fourth Circuit Court of Appeals.
I do believe that he would make not just all South
Carolinians, but all Americans proud.
So thank you so much for allowing me to be here on his
behalf today, and I wish him Godspeed, and each one of you the
same throughout your deliberations.
Thank you so much.
Senator Franken. Thank you, Representative Clyburn, for
joining us here in the Senate.
And with that, I will introduce Judge Floyd and swear him
in. So if, Judge Floyd, you would come forward, after that very
eloquent introduction. You can remain standing.
[Nominee sworn.]
Senator Franken. Thank you. You may be seated.
Judge Floyd, as is our tradition, please feel free to
introduce any members of your family or friends that are here
with you today.
STATEMENT OF HON. HENRY F. FLOYD, NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
Judge Floyd. Thank you, Mr. Chairman.
I have with me my wife, Dr. Libba Floyd; my good friend,
Scott Dover; my mother, Margaret Floyd; my daughter, Betts
Copenhaver, who is the mother of our two grandchildren; and,
then, the president-elect of the South Carolina Bar, Marvin
Quattlebaum, appeared here today. I didn't know he was coming,
but he's in the audience today, as well.
Senator Franken. Welcome to all of you and congratulations
to all of you.
Judge Floyd, you are in the unique position of having
served as both a judge and as an elected official in the South
Carolina State Legislature, a special position--I am sure
someone else has done that before.
Should you be confirmed, how do you think that your time
serving in the legislature will help you interpret the laws
that we write?
Judge Floyd. Thank you, Mr. Chairman, for that question,
and Senator Grassley.
I was elected to the legislature when I was in law school.
And so I got to spend a lot of time working with the Judiciary
Committee, which, at that time, drafted most of the legislation
that was considered by the House, except for budget.
And so I got a real good lesson in how to put statutes
together, how to interpret them, what the pitfalls could be. So
I think my legislative experience would greatly assist me in
the area of statutory construction and interpretation.
Senator Franken. You currently are a district court judge.
How do you think your job will change if you are confirmed for
a position in the court of appeals?
Judge Floyd. Well, I think--Senator, thank you for that
question. I think that we still do a lot of writing and
research at the district court level, particularly on the civil
side. So it's nothing new to me in that regard.
I would tell you that I've also set a designation at the
Courth Circuit some 50 to 60 times. So I'm familiar with the
process and how it works, and I think the transition would be
very easy for me.
Senator Franken. You were at the center of some very
important national security cases a few years ago; for
instance, the Padilla and Almawri cases. Can you ell us about
those cases and your role in them?
Judge Floyd. Thank you, Senator. The Padilla case came to
me by way of a Supreme Court opinion that said that the case
had to be tried in the district of South Carolina. And so he
was in-house at the brig in South Carolina.
So I got the case and the issue was whether or not the
President had the right to detain an American citizen who was
arrested on American soil. I ruled that he did not have that
authority. And then the Fourth Circuit unanimously reversed me
on that case.
And then a few days before the cert briefs were due in the
Supreme Court, the government changed its mind and decided to
charge Jose Padilla as a citizen and they tried him in Florida.
The Almawri case is a little different set of facts. He
likewise was in the brig at Charleston. He came into the
country the night before 9/11. The evidence in the case led me
to conclude that under those facts and circumstances, that the
President had a right to detain Almawri because there was a
sudden--there was somewhat of a sudden emergency had he gone on
about what he had plotted to do.
That went up on appeal and, again, I got reversed by the
Fourth Circuit. Again, just days before the Supreme Court was
to see the briefs on the court, again, the government changed
its mind and charged him as a citizen and--civilian--and tried
him, I think, in Illinois, Senator Durbin.
The order in that case, my order, is still a valid order in
that the Supreme Court has vacated the Fourth Circuit's
opinion. So the right of detention is still there.
Senator Franken. So the Supreme Court never ruled on the
issues in that case then.
Judge Floyd. They never got to it, initially on
jurisdictional grounds.
Senator Franken. I understand that you were one of the
first judges in the country to address the admissibility of--
and I hope I pronounce this right--mitochondrial?
Judge Floyd. Mitochondrial DNA, Senator?
Senator Franken. Yes.
Judge Floyd. Yes, sir.
Senator Franken. Yes. DNA is the pronunciation I knew I
could get right. And you ruled that such evidence was
admissible, which the South Carolina Supreme Court affirmed. I
have worked hard here in the Senate to make sure that DNA
evidence is collected and tested in a timely way so that
justice can be served for victims of crime.
Can you tell me a little bit about your experiences with
DNA evidence in your courtroom?
Judge Floyd. Thank you, Senator, for that question.
Specifically on mitochondrial or DNA in general? In general?
Senator Franken. In general.
Judge Floyd. All right. Well mitochondrial DNA is derived
from the mother of the person. It can be a very, very, very
small sample.
In this case, it was a murder case, with the death penalty
pending. The FBI came in and testified. It was only the second
time in the United States that mitochondrial DNA evidence was
admitted, and we went through a long process, something akin to
the Daubert analysis in Federal court. But ultimately, it was
admitted.
DNA evidence is quite frequently used, particularly in the
state court, because there are so many criminal cases tried
there. I have had--I have not had a bad experience with it and
we've been--and we've had a good chain of custody and all that
kind of stuff. So it's a very valuable tool for both sides.
Senator Franken. Thank you, Judge.
And I would turn to the Ranking Member.
Senator Grassley. I do not know whether I need to ask you
any questions. If you have got the two Senators from South
Carolina on your side, you have got a couple tough cookies
backing you.
But let me do my job, because we want to make sure that
people that interpret the law as opposed to make the law get on
our courts.
And I was going to ask you about Padilla, so I will not go
into that anymore. But you were a state court judge for 11
years, having been a District Court Judge now for 7 years,
presided over hundreds of cases and even sat as designation on
the Fourth Circuit.
I am going to use, for my first question, Professor Liu,
who was before our Committee a couple--well, maybe a month ago
now for a hearing, and his nomination is on the Senate floor.
But as a professor, he wrote at the moment of decision
should determine whether a society's, ``collective values on a
given issue,'' have converged to a degree that they could be
persuasively crystallized and absorbed into legal doctrine.
What I am asking is for you to answer, is it appropriate
for a judge to consider, ``our collective values on a given
issue,'' when interpreting the Constitution, a Federal statute,
or deciding case or controversy?
Judge Floyd. Thank you for the question, Senator Grassley.
I am not familiar with the nominee or any of his writings, and
I really don't know what content that particular quotation came
from. So I'm really not in a position to evaluate that.
Senator Grassley. All right. If confirmed as a Circuit
Judge, what weight would you give to public values and social
understandings in deciding cases, analyzing Federal statutes,
or interpreting the Constitution?
Judge Floyd. Thank you, sir, for that question.
My position has always been, as a trial judge, both at the
state and Federal level, is that, as simple as it sounds, I try
to determine what the facts are and do that fairly and
impartially and to those facts, I apply the law, as I
understand it to be.
There is a lot of precedent out there and I understand that
and do follow precedent, when it exists. So that may seem a
little narrow, but that's the way that I do things.
Senator Grassley. Do you think the Constitution should be
interpreted in ways that adapt its principles and its text to
the challenges and conditions of our society? And if you
thought so, how would you go about accomplishing that?
Judge Floyd. Thank you again for that question. I don't
believe that I would go about interpreting in that way, but I
understand your question.
Senator Grassley. I think you have answered my question. I
would like you to think about the most difficult case you have
had to decide as a Federal judge. In deciding that case, did
you resort to things that you might call your own personal
values, your core concerns, broader perspectives of how the
world might work or the depth and breadth of your empathy? And
those are words that might sound familiar to you, because they
come from the empathy standard discussed by President Obama on
several occasions.
Judge Floyd. So you want me to talk about the concept of
empathy.
Senator Grassley. Well, how you would use that, whether you
look at cases that way.
Judge Floyd. No. Again, the way I answered your other
question, you look at the facts, you determine them fairly and
impartially, and you apply the law, and that's essentially what
I do.
Senator Grassley. Thank you very much.
Senator Franken. Senator Durbin.
Senator Durbin. Thank you very much, Judge Floyd, for being
here. And like my colleagues, I am impressed by the fact that
you had the support of both Republican Senators and my close
friend, Congressman Clyburn, speaks well of your background and
balance and reputation as a jurist.
You have been involved in a number of things which have
been questioned here. There is one I would like to ask about.
We had a former colleague from the Commonwealth of
Pennsylvania, Arlen Specter, and his last request of us as he
left this Judiciary Committee, which he once chaired, was that
we take up that issue which he addressed with great passion of
televising court proceedings.
And it turns out that in your background, you were a state
court judge and presided over the case of State v. Beckham, a
prominent murder case that resulted in a life sentence for the
defendant. The entire 3-week trial was televised live in Court
TV.
So, Judge Floyd, what is your view on televising court
proceedings and whether they would be appropriate in Federal
court?
Judge Floyd. Well, let me answer this way, from the state
court experience. The Supreme Court gave us discretion to have
proceedings televised. I personally, as a state court judge,
did not have any problems with Court TV, for example, being in
the courtroom.
Everything went smoothly. And as you've noted, it was a 3-
week trial. It wasn't the only trial where I had TV or cameras
in. But it didn't bother me in state court.
But to answer your question, at the Federal level, that's
really not my call. I think that's up to the Supreme Court or
perhaps Congress.
Senator Durbin. What was your observation on its impact on
witnesses or even the conduct of counsel?
Judge Floyd. Senator, with me personally, I run a pretty
tight courtroom and I have not had problems. But I am aware
that other judges have had problems with counsel playing for
the cameras.
Lots of times, the public can be misled by a snippet on the
news and get the wrong idea about what's going on in the case.
So that's one of the pitfalls of having cameras in the
courtroom. But, again, I had a good experience. I never got
burned by it.
Senator Durbin. Thanks very much, Judge Floyd.
Thank you, Mr. Chairman.
Senator Franken. Thank you. And thank you, Judge Floyd.
Thank you for your testimony.
[The biographical information of Henry F. Floyd follows.]
Judge Floyd. Thank you. May I be excused?
Senator Franken. Yes.
[Laughter.]
Senator Franken. I would now like to proceed to the second
panel with Ms. Monaco.
[Nominee sworn.]
Senator Franken. Thank you. Please be seated. And I
understand you have an opening statement, and you should also
feel free to introduce any members of your family that are with
you today.
STATEMENT OF LISA O. MONACO, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE
Ms. Monaco. Thank you very much, Chairman Franken and
Ranking Member Grassley.
I would like to introduce the members of my family who are
here today. With me today are my parents, Dr. Anthony Monaco,
and my mother, Mary Lou Monaco, who traveled here from my
hometown of Newton, Massachusetts, as Senator Brown referenced,
and I am very pleased that they are here today.
Senator Franken. Welcome.
Ms. Monaco. With them is my middle brother, Mark, and his
wife, Jennifer Monaco. They traveled here from New York City,
and I am very pleased they are here. My niece and nephew,
Sophia and Nicholas Monaco, would have very much liked to have
skipped school. However, my brother and sister-in-law I think
made a wise decision.
Back home in Massachusetts, I have a twin brother and his
wife, Lisa, and my nieces Jessica and Julia, and my brother,
Peter, and his wife, Sara, and I suspect they're all watching
on the Webcast. So I appreciate their----
Senator Franken. Welcome to them, in that case.
Ms. Monaco [continuing]. Appreciate their support.
I have a number of friends and colleagues here from the
department, and, also, colleagues from the National Security
Division. I'm particularly honored that they're here to support
me today, and a number of friends, as well. So I appreciate
their support.
Chairman Franken, if I could request that my full statement
be entered into the record.
Senator Franken. It will be.
Ms. Monaco. And I have just a few brief opening remarks, if
I could.
Senator Franken. Sure, go ahead.
Ms. Monaco. Chairman, I want to thank Senator Brown for his
very kind introduction earlier this afternoon. I also want to
thank the President for his confidence in nominating me, the
Attorney General for his support, and the members of this
Committee for considering my nomination.
I'm here today as someone who has been extremely fortunate
in my life and in my work. I would not be here today if not for
the support of my parents. They have enabled me to enjoy many
blessings, including pursuing work I am committed to in a
department that I love.
They have taught my brothers and I about hard work,
integrity, and about living one's values. And because of these
lessons, I'm very fortunate to be here today, tremendously
honored to do so.
I spent nearly 13 years, Senator, in the Justice
Department. In that time, the world has changed. The events of
September 11 altered forever the way the department and the FBI
operate, and I have been part of that transformation and
learned that our Nation faces complex and evolving national
security threats; and, to combat those threats, we must be
aggressive, we must be agile in our approach, and we must act
consistent with the rule of law.
Every morning for several years now, I have reviewed
intelligence and threat streams together with talented agents,
analysts and prosecutors. I have been privileged to work with
Director Mueller to help advance the bureau's transformation
from a law enforcement agency that investigates crime after the
fact to a national security organization focused on preventing
the next attack.
The same principles guided Congress in creating the
position for which I have been nominated, and Congress had the
wisdom to remove barriers, legal and structural, to allow
committed professionals to share their information, their
talent, and their missions.
The National Security Division is the embodiment of that
vision, where intelligence lawyers come together with agents
and prosecutors to combat terrorist plots, as well as spies and
cyber criminals bent on stealing our secrets.
The mission of the division most fundamentally is to
prevent terrorism and to protect the American people. If I am
fortunate to be confirmed, I will be proud to serve alongside
the outstanding men and women in the National Security
Division.
I pledge to give my all, to carrying forward the work of
those who have gone before me, mindful of the gravity of the
duties I will be assuming, and committed to doing so in the
best traditions of the Department of Justice.
I thank you, Mr. Chairman, and I welcome the committee's
questions.
[The prepared statement of Ms. Monaco appears as a
submission for the record.]
Senator Franken. Thank you. And, Senator Grassley, I know
you have a time constraint. So if you would like to start the
questioning.
Senator Grassley. I appreciate that. And for the benefit of
the other nominees, I have the Sioux City Chamber of Commerce
in town and I have them as an appointment in just a little
while.
It has been argued that because there is not an enemy state
against which such a war on terror can be waged, the very
notion of, ``war on terror'' is, at best, a public relations
expression.
Do you agree with that sentiment or do you believe that the
United States is, in fact, engaged in actual war against
terrorism?
Ms. Monaco. Senator, thank you very much for that question.
I think I would respond this way. I believe we are at war and I
believe we are at war against a determined enemy and a very
adaptable enemy, and that's been my experience in the time that
I've served in the FBI and in the department.
And we need to make sure that we are able to meet the
threats that come at us in that war and to be flexible as we do
so.
Senator Grassley. Another question. Recently, our Attorney
General announced a reversal in policy that although it was his
opinion that the best venue for prosecution of terrorists was
in Federal court, he made a decision to try terrorists in
military court.
He noted that he made his decision only because Congress
forced him to do so.
Do you agree with the Attorney General's decision to try
terrorists in military tribunal?
Ms. Monaco. Yes, Senator. My perspective on that is that we
need to hold the 9/11 attackers accountable and we need to move
forward in doing so in the military commissions.
With the good work of this body and the leadership of
Senator Graham and others in this Committee and elsewhere in
the Congress, the military commissions were reformed and, I
think, provide a legitimate fora to have a fair, thorough and
just proceeding.
Senator Grassley. A follow-up to that is whether or not you
agree with the Attorney General's opinion that the best venue
for prosecution is in Federal court and that Congress forced
him to do otherwise.
Ms. Monaco. Senator, I think that Congress has an
appropriate role when issues engage national security and
security concerns.
As a prosecutor, though, I also think that prosecution
decisions are appropriately made by those with the facts and
the law in front of them and are appropriately made by
prosecutors in the executive branch.
Senator Grassley. The 9/11 Commission found a wall was in
place prior to 9/11 between counterintelligence community and
the law enforcement community. Legal and institutional reforms
have taken down that wall. But I am concerned about efforts to
rebuild that wall or weaken those reforms.
Do you think a wall previously existed and, if so, does it
still exist?
Ms. Monaco. Senator, thank you very much for that question.
I think that issue is one that we have to be ever vigilant on,
and, that is, re-erecting any wall, structural, legal or
perceived.
As my opening comments, I think, indicated, we are best
equipped to wage a fight against terrorism when we're bringing
all tools to the table, sharing intelligence in law
enforcement.
The reforms that this body enacted after 9/11 and the
creation of the National Security Division has enabled us to do
that and I think we need to make sure that that stays the case.
Senator Grassley. The Gorelick memo which established that
wall was issued in 1995. Although you did not join the
Department until 1998, were you involved in any subsequent
review, revision or implementation of that memo?
Ms. Monaco. I don't believe so, Senator. I was----
Senator Grassley. Well, let us leave it that way. But if
you do think, as an afterthought to my question, submit
something in writing to me.
Ms. Monaco. Absolutely, be happy to do that, Senator.
Senator Grassley. Because if there is any relationship you
had with that, I would like to know that.
Ms. Monaco. Certainly.
Senator Grassley. Do you support the permanent extension of
the PATRIOT Act provisions, which are soon to expire, the Lone
Wolf provision, the roving wiretap provision, and the business
records provision?
Ms. Monaco. Senator, I noted in your opening comments your
focus on the PATRIOT Act and the need to reauthorize those
provisions, and I want to thank you for your focus on that
issue.
The reforms from the PATRIOT Act and those expiring
provisions, in particular, are absolutely critical tools that
the National Security Division uses every day to make sure that
national security investigators are able to stay on the same
plane and in the level playing field with criminal
investigators in the tools that they use.
I think we need to have those provisions reauthorized for a
substantial period of time in order to give stability and
clarity to our agents in the field who need those tools quite
essentially.
Senator Grassley. I may submit some questions for answer in
writing, but you have got through the most important issues
that I wanted to discuss with you.
Thank you, Mr. Chairman, for your courtesy.
Senator Franken. You are very welcome. And say hi to the
Sioux City Chamber of Commerce.
You know what? I will turn it over to Senator Durbin, since
we are going a little out of order.
Senator Durbin. Thank you very much.
Ms. Monaco, thank you for joining us. And I certainly am
impressed with your background and work as chief of staff at
the FBI with Director Mueller, who is wrapping up his 10-year
service as director of the Federal Bureau of Investigation.
I think he came right after 9/11 and he faced some
extraordinary challenges, which I would like you to comment on.
The one that struck me among so many other things that came out
during the investigation of 9/11 was the status of the
information systems at the Federal Bureau of Investigation on
the day of that attack.
As hard as it was to believe, the computers in the Federal
Bureau of Investigation on 9/11 did not have access to the
Internet, did not have word check, and were incapable of
transmitting photographs.
Most of what I have just described was common technology
available on the open market. But the FBI was that antiquated
and that far behind that they sent out photos of the suspected
terrorists by overnight mail, because they could not send them
by computer.
Director Mueller tackled that issue and I think, by his own
admission, he had some success and some failure in trying to
put an up-to-date, modern computer system into the Federal
Bureau of Investigation.
Now, as I understand your job that you are responding to
here in the National Security Division, it is to try to break
down some of the barriers between agencies so that there is at
least one place or many places where we share information and
can follow up on it, as you say, to prevent an attack, not to
react after that.
What do you think, from your experience, is the current
state of the communications technology at the FBI and in the
Department of Justice when it comes to sharing that
information?
Ms. Monaco. Thank you, Senator Durbin. You've hit upon a
critical issue in the ability of the department, the FBI, and,
of course, the government as a whole to make sure that we are,
for lack of a better phrase, able to connect the dots and share
information and to come back and identify terrorist attacks
before they occur.
From my perspective, as having served at the FBI,
thankfully, by the time I got there, I had a connection to the
Internet and, in fact, the bureau was operating at what they
call there enclaves. In other words, each individual and
certainly the leadership focused on terrorism issues had at his
or her desktop access to an unclassified network and the
Internet, a secret level network, and a top secret level
network.
So I think that was a dramatic improvement from the state
of things prior to 9/11, and I think the country has Director
Mueller to thank for focusing just relentlessly on that issue,
as you note, and from your focus on the issue. And I know you
focused on the development of the Sentinel program over a
number of years. Because of that focus, he was able to move
things.
I would say that we are not where we need to be and the
proliferation of data bases and the need to share travel
information with immigration information, with criminal
information, is a continuing challenge because of the legal
rules that are applied to those different sets, and the privacy
protections that we have to be very mindful of with regard to
U.S. person information.
But I think it is something we have to be constantly
focused on and to build on the progress that has been made.
Senator Durbin. The last question I have relates to the
other side of that equation. Once the technology is there, the
question is whether the cultures of the agencies will allow
them to share information.
As hard as it may be to believe, as the intelligence
community looked into 9/11, we found a lot of good information
that was not shared because of the belief that it somehow could
jeopardize the career of the person sending it or it should
stay within the agency, and I hope that we are moving beyond
that.
Certainly, the position you aspire to is one that was
designed to move beyond that. What has been your experience in
terms of this culture? Is it still stovepiped, to use that old
cliche, or is it getting better?
Ms. Monaco. I think it's getting better, to a significant
degree. My personal experience is that every morning, as I
mentioned in my statement, agents and analysts and prosecutors
all sit together to review the same information. That is
something that didn't happen before 9/11.
That same meeting is occurring everywhere around the
government in different agencies, at State Department, at
Homeland Security. So you have the same people looking at the
same information and that is a critical development.
In the National Security Division, you have--and the very
purpose of it was to have intelligence lawyers sitting next to
criminal prosecutors, those with law enforcement authorities,
and working with agents and investigators. That didn't happen
before Congress had the wisdom of creating the National
Security Division.
So now, every day, the people who are looking at the FISAs
and the people who are looking at somebody, a terrorism or
espionage target, for a potential prosecution are sitting side-
by-side.
Senator Durbin. Thank you, Ms. Monaco.
Thank you, Mr. Chairman.
Senator Franken. Thank you, Senator.
Ms. Monaco, first of all, let me say that our office has
received no shortage of calls from people in the law
enforcement community who have been effusive in praising you
and your nomination, and your family should be proud of where
you are today.
Ms. Monaco. Thank you, Mr. Chairman.
Senator Franken. I was really impressed with your work on
the Enron scandal and I understand that you earned the--I guess
Senator Brown said that--you earned the Department of Justice's
highest award for your work on the Enron task force.
I realize the position you are nominated to would not be
involved in Enron-type investigations or prosecutions, but if
someone interested in protecting everyday Americans from
corporate malfeasance, I want to know what you think lessons
learned are from the Enron scandal.
Ms. Monaco. Senator, I think from the perspective of
individuals who the Enron task force prosecuted, I think the
lessons were that individuals created very complicated
structures and that there was a very high appetite for risk in
that corporation, and that led the leaders of that organization
and others to conduct a number of transactions that created a
fictional picture, if you will, of what the actual corporation
was doing.
And I think with the reforms that Congress enacted after
that, Sarbanes-Oxley and the like, we have a much better regime
in place to prevent that. But I don't think we're done.
From an investigative standpoint, it's actually somewhat
similar to the position I'm going to now, which is, if I am
confirmed, the focus by investigators on pieces of information
and connecting it and taking a complex situation and
simplifying it down to its essence was the point of the
prosecution of Enron, and I think some parallels can be made in
the national security realm.
Senator Franken. Well, thank you, Ms. Monaco.
We will now proceed to the third and final panel of this
afternoon's hearing. You are excused. Thank you very much.
Ms. Monaco. Thank you, Mr. Chairman.
Senator Franken. Would the third panel come forward and
stand and raise your right hands? Now, I would like you,
please, to swear the oath.
[Nominees sworn.]
Senator Franken. Please be seated. And I invite you, each
of you, starting with Judge Ramos, to introduce members of your
family and friends who are here today.
[The biographical information of Lisa O. Monaco follows.]
STATEMENT OF HON. NELVA G. RAMOS, TO BE UNITED STATES DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
Judge Ramos. Thank you, Senator Franken, for the
opportunity to be here.
With me today is my husband, Oscar Ramos.
Senator Franken. Hello.
Judge Ramos. Our son, Christian.
Senator Franken. Welcome, Christian.
Judge Ramos. My sister, Norma Stachura.
Senator Franken. How do you do?
Judge Ramos. Our friends, Caroline Bertuzzi, the honorable
Rose Vela and her husband, Fil Vela. And I thank them for being
here today.
If I could thank Senator Hutchison and Senator Cornyn for
their kind introduction, and I'd like to thank them, as well as
former Congressman Solomon Ortiz, for their support through
this process. And I thank the President for his nomination.
If I could briefly acknowledge my brothers and sisters and
other family and friends who are watching through the Webcast.
I thank them for their support. And acknowledge my mother-in-
law, Alicia Ramos, for her support. And, finally, acknowledge
my parents, Felipe and Isabel Gonzales. It is because of them
that I am living the American dream.
I thank my mother for her tremendous support through the
years. My father is no longer with us. I know he is here in
spirit and is looking down on these proceedings from above.
Thank you, Senator Franken, and I welcome your questions.
Senator Franken. Thank you, and hello to everyone watching
on the Webcast.
Judge Jackson.
[The biographical information of Nelva G. Ramos follows.]
STATEMENT OF HON. RICHARD B. JACKSON, TO BE UNITED STATES
DISTRICT JUDGE FOR THE DISTRICT OF COLORADO
Judge Jackson. Thank you, Senator. And I do want to thank
Senator Durbin, yourself, sir, Senator Leahy, Senator Grassley
and the Committee for granting me this hearing.
I certainly want to thank the President for nominating me.
And I especially want to thank Senators Udall and Bennet for
their very generous introductions.
And if I might, sir, introduce my family to you.
Senator Franken. Please.
Judge Jackson. My wife of 39 years, Liz Jackson.
Senator Franken. Welcome.
Judge Jackson. Here on the front row. My son, who is a
lawyer and living in California, Brett Jackson.
Senator Franken. Welcome.
Judge Jackson. My daughter, Jenny, who lives in New York
City and came down to support me.
Senator Franken. How do you do?
Judge Jackson. Two of my family couldn't be here, Senator,
our other son, Jeff, our older son couldn't travel for medical
reasons, and, also, his wife is expecting a child in a month
and a half and she couldn't come either. But they and their two
sons, our grandchildren, I'm sure are here on the Webcast. And
my brother, my brother is a lawyer in Montana. He actually
worked here in the Senate for several years and I know he
wanted to come back and be back in his community, but he is
both a lawyer and a part-time judge and couldn't schedule it on
short notice, but I think he'll be watching today, too.
Thank you, sir.
Senator Franken. Well, thank you and welcome to all those
watching, and good luck on the birth.
Judge Jackson. Thank you.
Senator Franken. On the birth coming soon.
Ms. Darrow.
[The biographical information of Richard B. Jackson
follows.]
STATEMENT OF SARA L. DARROW, TO BE UNITED STATES DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF ILLINOIS
Ms. Darrow. Thank you, Senator Franklin--Franken--I'm
sorry. Not a good start.
Senator Franken. I am going to vote against you.
[Laughter.]
Ms. Darrow. I would like to very graciously thank you for
chairing this hearing.
Senator Franken. OK, then I will.
[Laughter.]
Ms. Darrow. And, of course, I'd also like to thank
President Obama for the honor of his nomination. And I would
like to especially thank Senator Durbin for the privilege and
the honor and the confidence that you show in me in nominating
me for this position, and specifically for the opportunity to
continue to serve my country in the capacity as a district
court judge.
If I may introduce my family.
Senator Franken. You bet.
Ms. Darrow. I have with me my husband, Clarence Darrow;
and, our children, Connor, who is 14; Lilia, who is age 13;
Augie, who is age 12; Anna Grace, who is 10; Ella, who is 8;
and Danny, who is 5 years old.
Senator Franken. Wow. Hi. That is great.
Ms. Darrow. Thank you.
Senator Franken. Welcome, all of you.
Ms. Darrow. I'd also like to introduce my brother, Mike
Frizzell who is here, and his wife, Katie Getsal (ph). They
live here in DC, but I'm happy that they made the trip here to
support me today.
Senator Franken. Great. Welcome.
Ms. Darrow. And I'd also like to acknowledge some other
family members who couldn't be here, but are watching the
Webcast. My mother, Cheryl Frizzell, who is watching from
Nebraska; my father and step-mother, Ron Frizzell and Susan
Frizzell, who are watching from Michigan; and my in-laws,
Clarence and Lily Darrow and the extended Darrow family, who
are watching from Illinois.
And I'd also like to give a special thanks to my colleagues
and friends at the U.S. attorney's office in both the central
district of Illinois and also the law enforcement community
there, and to all my friends who are watching the Webcast here
today.
Thank you very much.
Senator Franken. You are very welcome, and welcome to all
your friends and family watching over the Web.
Ms. Darrow, let me start with you. As an assistant United
States attorney, you specialize in prosecuting gang-related and
organized crime. These can sometimes be difficult cases to
build.
Can you talk about how the challenges you face prosecuting
gang and organized crime cases have prepared you for the bench?
Ms. Darrow. Thank you for the question, Senator. Certainly,
when you're dealing with violent crime cases that entail
enterprises such as street gangs and, also, drug trafficking
organizations that can reach into international borders, they
deal with several facts and complex legal issues and, also,
logistical issues dealing with witnesses, some who are not
always cooperative.
I think that my ability to not only handle high volumes of
evidence and to organize it in a digestible manner,
specifically for myself, the agents, and also, eventually, the
jury or the judge, and, also, my ability to partner with law
enforcement and make sure that we work together as a team to
see that justice is served, I think that all of those traits
are easily transferable to the bench and I would definitely
employ those in presiding, if I am lucky enough to be confirmed
as a District Judge.
Senator Franken. Thank you.
[The biographical information of Sara L. Darrow follows.]
Judge Ramos, over the last 10 years, you have presided over
1,200 criminal, civil, and family law cases that went to
verdict or judgment, and yet only eight of those cases have
been reversed. That is less than 1 percent of the cases that
you have presided over. It is a pretty impressive rate.
How has your work in the 347th district court for Nueces
County prepared you to serve as a District Judge for the
southern district of Texas?
Judge Ramos. Thank you, Senator. As you said, for the last
10 years, I've had the privilege of serving as a district court
judge in a court of general jurisdiction. So I've presided over
both criminal and civil cases, and I think that judicial
experience will benefit me greatly, if I am confirmed, as a
district court judge.
Thank you.
Senator Franken. Thank you.
Judge Jackson, a little over 10 years ago, you presided
over a sexual assault case involving a 28-year-old man named
Charles Brooks, who sexually assaulted a 12-year-old victim.
I understand he entered what is called an Alford plea,
where he accepted the charge, but asserted innocence. You
initially sentenced Mr. Brooks to 10 years in prison.
Judge Jackson, you subsequently reduced Mr. Brooks'
sentence down to a 2-year jail term plus 10 years probation.
When the Rocky Mountain News ran a story criticizing your
decision, you wrote a letter to the editor defending it. You
said that the victim was not raped, although there was, quote,
``inappropriate behavior and touching.'' This is very unusual
for a judge to write such a letter.
My understanding, Judge Jackson, is that a lot of people
were very concerned about how you handled the case, and, to be
honest, I am concerned about it, too.
Can you tell us about the case and why you made the
decision that you did?
Judge Jackson. Yes, I can and I thank you for the
opportunity to do that.
Senator, as you might expect, sex offense cases are among
the most difficult that we have and certainly the most victim-
sensitive. And this case happened to be, I think, the first
case of that kind that I had had as a judge, but I did sentence
Charles Brooks to 10 years in prison because I thought that was
exactly what he deserved.
Something happened in that case that is unique to all the
sex offenses cases I have had, and I think I have had 300 or
400 probably in my career by now.
Brooks was in prison, but Brooks only communicates through
sign interpreters. He is hearing impaired and needs an
interpreter to communicate.
In addition to that, he has mental health issues. But the
main thing was the speech difficulty, hearing difficulty, and I
was told that he was not getting any offense-specific
treatment, any sex offense treatment in prison; not a knock on
the prison, but just a combination of resources and the lack of
interpreters.
I was concerned, Senator, about the community safety aspect
of that, because 10 years or not, he was going to come out of
the prison and be back in the community. And it was extremely
important, it was emphasized by our probation department how
critical it was that he get treatment.
And so I agreed to a proposal that was made to me to bring
him back to our local jail, to incarcerate him for the maximum
term possible, but to get him the offense-specific treatment
with interpretation that everyone thought he needed.
I agreed to that on the condition that he successfully
complete the treatment program and that if he made it onto
probation, that he be absolutely without any type of violation,
zero tolerance.
In fact, Mr. Brooks did reasonably well, quite well in
treatment and he served his jail sentence, but very shortly
after he completed the jail sentence, he was dismissed from the
treatment program not because he wasn't complying, but because
he would not admit his crime.
He, as you said, entered an Alford plea and he, from the
beginning to the end, denied that he was guilty. And you cannot
complete offense-specific treatment in Colorado unless you
admit.
That was a violation of his probation and I did exactly
what I said I would do. I revoked his probation, put him back
in prison, and he served out his 10-year sentence.
And, Senator, if I can add, I'm proud to say that the
district attorney, who was the DA at the time, who brought the
case, the deputy district attorney who actually prosecuted the
case, the district attorney in our jurisdiction who is there
today and his chief deputies, all of those support me for this
position, as Senator Udall said, to the Attorney General of the
state and the U.S. attorney, and I think they based that on 12
years of how I've handled cases like this.
As far as the newspaper, I think that was a poor decision,
sir. It was frustrating to me as a new judge to see a case
described in the paper that I didn't think was describing the
case that I had or the reasons why I did what I did.
I think it probably is not a good idea for a judge to write
a letter like that. Sometimes you learn these things the hard
way.
But I will say, for what little it might be worth, that the
reporter who wrote the article followed my career on the bench
for several years after that and she is one of the letters of
support that you have in that volume that Senator Udall
presented.
It doesn't mean I did the right thing on the letter. I
shouldn't have done it. I made a mistake and I learned from it.
Senator Franken. Thank you.
Judge Jackson. Thank you, Senator.
Senator Franken. Thank you, Judge.
Senator Durbin.
Senator Durbin. Thank you, Chairman Franken. I will get him
back on our side, I promise.
[Laughter.]
Senator Durbin. There is one thing I did not mention when I
introduced Ms. Darrow to the Judiciary Committee, and, that is,
what a positive impression she made on me when I interviewed
her.
I certainly knew her father. I know her father-in-law, I
have known him for years, a close friend of mine, and I had
learned quite a bit about her background as a prosecutor and
legal practice. And as you can see from the biographical
material, she has had a 14-year legal career.
And what you may recall is when she introduced her
children, all six of them, but the oldest is 14, how this woman
has been able to balance this amazing professional career with
this beautiful family is nothing short of a miracle.
Senator Franken. Hence, the ``wow.''
[Laughter.]
Senator Durbin. And so I was so impressed and still am and
I am sure glad that you are here. And I do not have any
questions, because if I did, I would not have brought you here.
But I am glad that you have had an opportunity to come to this
hearing.
Ms. Darrow. Thank you, Senator.
I would like to ask the other two nominees, if I might, a
few questions.
Judge Ramos, I am impressed with your career.
Judge Ramos. Thank you, Senator.
Senator Durbin. It is an extraordinary career. It is
primarily oriented toward civil litigation. I think you have
said as much in responding to questions. And I think you
understand that if this is like most Federal district courts,
you are going to have a lot of criminal practice before you.
Tell me how you would explain to the members of the
Committee that you will be prepared for that seismic shift in
your practice.
Judge Ramos. Thank you, Senator. When I was in private
practice, my practice was a civil practice. But since I've been
on the bench for the last 10 years, I'm in a court of general
jurisdiction. So it is--I preside over civil and criminal cases
and I----
Senator Durbin. What percentage would you say it is?
Judge Ramos. I've tried over 100 jury trials in civil
cases--felony cases. So I think that experience will carry
over.
Senator Durbin. Criminal felony.
Judge Ramos. Criminal felony, yes, sir.
Senator Durbin. I see. Well, that certainly is adequate for
that, more than adequate for that.
Judge Ramos. Thank you, Senator.
Senator Durbin. And I also notice your pride in your own
heritage and the opportunities that this country has brought
you. You live in a state which the last census indicates has a
dramatic upsurge in the Hispanic population, maybe the largest
in the nation, I am not sure, but close, if not the largest.
And there are always questions of justice related to
newcomers to America. Tell me how you would balance that in a
courtroom, dealing with the law and the reality of what life is
like for newcomers to America.
Judge Ramos. Right. Similar to what I think as a judge, you
should treat all persons equally regardless of who they are or
where they come from, and I have done that for the last 10
years. I do think it's important for a judge to certainly
understand where people come from, the situation they find
themselves in, and how your rulings may affect their lives.
However, sympathy, a judge should not allow sympathy to
play any role in a judge's decisions. So I think I have treated
everyone who has come before my court with respect and equality
for the last 10 years and I would continue to do that.
Thank you.
Senator Durbin. Judge Jackson, I read the same case that
Senator Franken asked about and I am sure, across your judicial
career, it is probably one of the more controversial decisions
you have ever been engaged in.
And I noted your acknowledgment that you may have made a
mistake in sending a letter to the newspaper. As hard as it may
be to believe, occasionally, Senators make mistakes and I am
one of them.
Judge Jackson. Well, thank you for that.
Senator Durbin. I think what really many of us struggle
with who have never had to face your responsibility in trying
to decide the appropriate sentence for someone accused of a sex
crime is kind of this haunting question about whether
rehabilitation is even possible in this situation.
We hear so many cases of repeat offenders with sex crimes.
Now, you have said that it has been your experience, that you
have had several hundred of these offenders before you, and I
would just like to ask you if you could comment on that
experience and what you can bring to us in terms of our
understanding of these criminal defendants.
Judge Jackson. Yes. Thank you for that question, Senator.
Our law changed in 1998 and now we have what is called a
Lifetime Supervision of Sex Offenders Act, and for certain
classes of sex offense felonies, we are required to sentence
from a minimum to life. But that same law from our legislature
says that the presumption is that a sex offender will always be
a sex offender, but with treatment, some can be released to the
community.
We have a sex offense management board, we have parole
boards who make decisions on which of these people can be
released, and there have been a number now who have been
sentenced to life sentences who actually have been released
back into the community.
It really is a product of do they get treatment, do they
respond to the treatment, what is their criminal history. For
example, in the case that I had that's been the subject of
discussion, this gentleman had not only not had a prior sex
offense, but had not any prior felonies or significant offenses
at all. Someone like that I think is more treatable perhaps.
Can I tell you, sir, that with treatment, someone is no
risk anymore? Absolutely I cannot. What I can tell you is that
if they get treatment and do well, and, of course, they
register as sex offenders and there are a number of other
things that apply to them, that when they come back into the
community, we're a much safer community than we would have been
had they not gone through that treatment.
Senator Durbin. Did I understand your testimony that this
individual, once brought back for local incarceration and this
offender treatment program, when he would not admit his guilt,
was re-incarcerated? So he was never released to the public.
Judge Jackson. That is correct. He--that is almost correct.
He was released on probation from the conclusion of his jail
sentence for a period of--I'm trying to remember--I would say 2
or 3 months, but that's when his treatment program was
terminated and that's why I put him back in prison to serve out
his sentence.
Senator Durbin. I see.
Ms. Darrow, you made a long trip out here, so I am going to
ask you one thing about your background, if I might. And that
is, you were involved in a pretty significant prosecution of
drug gangs in the Quad Cities area, the Rock Island area there.
Could you tell us a little bit about your lead in these
gang investigations and prosecutions?
Ms. Darrow. Yes. Thank you, Senator. I think you're
referring to my prosecution of the Latin Kings street gang. At
the time, they were the largest supplier of drugs in the East
Molina area, which is one of the main cities in my
jurisdiction.
And they were--we prosecuted the local leader of the street
gang, as well as his underlings, and we went all the way back
to the source of supply, which was in Texas.
It was a racketeering prosecution, which is a little bit
more complex than a straightforward drug prosecution or
otherwise violent crime prosecution, and I am happy to say that
at the end of that prosecution, local law enforcement agreed
that the presence of that street gang at that time had been
dismantled.
Senator Durbin. I am hoping that testimony will clearly win
over Chairman Franken. And I yield.
Senator Franken. Thank you, Senator Durblin.
[Laughter.]
Senator Franken. And thank you, Judge Ramos and Judge
Jackson and Ms. Darrow, for your testimony. And you are welcome
to stay there. We are about to wrap up here, so hang in.
In closing, I want to thank my friend, the Ranking Member,
and I want to thank each of you for your testimony today.
We will hold the record open for 1 week for submission of
questions for the nominees and other materials.
This hearing is adjourned.
[Whereupon, at 4:29 p.m., the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
NOMINATION OF NANCY TORRESEN, OF MAINE, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MAINE; NANNETTE JOLIVETTE BROWN, OF LOUISIANA,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA;
WILLIAM F. KUNTZ II, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF NEW YORK; HON. TIMOTHY M. CAIN, OF SOUTH CAROLINA,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA; AND
HON. JOHN A. ROSS, OF MISSOURI, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF MISSOURI
----------
WEDNESDAY, MAY 4, 2011,
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Christopher
Coons, presiding.
Present: Senators Coons, Schumer, Grassley, and Graham.
Senator Coons. Good afternoon, everyone. I am pleased to
call this nominations hearing of the Senate Committee on the
Judiciary to order. I would like to welcome each of our
nominees today and their families and friends to the U.S.
Senate and congratulate them on their nominations. I would also
like to welcome those of my colleagues who are here to
introduce the respective nominees.
Today we welcome five nominees, beginning with Ms. Nancy
Torresen, nominated to be judge in the District of Maine. Ms.
Torresen currently serves as an Assistant U.S. Attorney in the
Criminal Division of the U.S. Attorney's Office for the
District of Maine. If confirmed, Ms. Torresen would be the
first woman to serve as a Federal District Judge in Maine, and
she will be introduced by her home State Senators, Senator
Snowe and Senator Collins.
Next we welcome Ms. Nannette Brown, nominated to be a judge
for the Eastern District of Louisiana. Ms. Brown currently
serves as the city attorney for the city of New Orleans. If
confirmed, she also will be the first African-American woman to
serve as a Federal District Judge in Louisiana, and she will be
introduced by her home State Senators, Senators Landrieu and
Vitter.
We also welcome Dr. William Kuntz, nominated to be a judge
in the Eastern District of New York. Dr. Kuntz is currently a
partner at the law firm of Baker Hostetler in New York and will
be introduced by his home State Senator, Senator Schumer.
We would also like to welcome Hon. Timothy Cain, who has
been nominated to be a judge in the District of South Carolina.
Judge Cain currently serves as a family court judge for the
Tenth Judicial Circuit of South Carolina, and he will be
introduced by his home State Senator, Senator Graham.
Finally, we would like to welcome Honorable John Ross,
nominated to be a judge in the Eastern District of Missouri.
Judge Ross currently serves as the presiding judge for the
21st Judicial Circuit of the State of Missouri. Perhaps that
should be ``Missour-ee.'' You can correct me either way,
Senator.
[Laughter.]
Senator McCaskill. It is ``Missour-ee'' in St. Louis.
Senator Coons. It is ``Missour-ee'' in St. Louis. He will
be introduced by his home State Senator, Senator McCaskill, and
perhaps Senator Blunt may join us as well.
Given the large number of U.S. Senators from the respective
home States of the nominees, I will hold off on my opening
statement. Senator Grassley, when he joins us, may also have an
opening statement, which he is welcome to make at that time.
And I would like to thank all of the Senators who have come
to speak on behalf of their home State nominees this afternoon.
I know well how incredibly busy you are, but your presence and
support speaks volumes about their qualifications, and I will
invite each of the Senators, if you so desire, to excuse
yourselves after you speak in introduction of your home State
nominees.
So, first, we will proceed to hear from the Senators from
the State of Maine to introduce Ms. Torresen. Senator Snowe,
please proceed.
PRESENTATION OF NANCY TORRESEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MAINE, BY HON. OLYMPIA J. SNOWE, A U.S.
SENATOR FROM THE STATE OF MAINE
Senator Snowe. Thank you, Mr. Chairman, and thank you for
giving us this opportunity. I am please to join my colleague
Senator Collins in recommending to the Committee Nancy Torresen
as the President's nominee for the United States District Court
for the District of Maine. I have had the pleasure of meeting
with Nancy earlier this week, and she is a consummate
professional and supremely qualified.
Coincidentally, I also happen to know her husband, Jay
McCloskey, who is a former classmate of mine from the
University of Maine, where we were good friends, and I cannot
help but note that he, too, was confirmed by the U.S. Senate in
1993 as U.S. Attorney for Maine. So together as well as
individually, they are quite a powerhouse in the Maine legal
community, not to mention a couple that never will be labeled
as ``underachievers.''
Mr. Chairman, Maine has one judicial district with three
active judgeships. If confirmed, Ms. Torresen will become only
the 17th judge to serve on our United States District Court
over its 222-year history. Significantly, she would also be the
first woman to serve on the court, as you mentioned--a
watershed moment for our States. Ms. Torresen would take the
seat of Judge Brock Hornby, who has served our State with the
highest of distinction for 21 years. Indeed, just over a year
ago, Judge Hornby received the Devitt Award, a singular honor
given annually for the last 29 years to the outstanding Federal
judge in the Nation. We are all indebted to Judge Hornby for
his unparalleled service.
Ms. Torresen brings a critical depth and breadth of
experience to this nomination as she has practiced law for 24
years across a range of roles and responsibilities. She began
her career as a law clerk to Chief Judge Conrad Cyr of the
United States District Court. After 2 years with a well-known
law firm here in Washington, Williams & Connolly, she returned
to Maine for a career as a prosecutor. All told, Ms. Torresen
has served 14 years as an Assistant United States Attorney and
7 years as an Assistant State Attorney General. The variety of
positions she has held and the facets of the legal realm in
which she has practiced are significant and would be multiple
perspectives in the district court.
As an Assistant United States Attorney, Ms. Torresen has
worked 4 years in the Civil Division and 10 years in the
Criminal Division. Her civil practice has included contract
disputes, medical malpractice, and libel. Her criminal practice
has included white-collar crime cases, such as tax evasion and
contract fraud. In her extensive criminal practice as an
Assistant United States Attorney, Ms. Torresen has been hands-
on, handling everything from initial referral of a case through
post-conviction relief. That is the kind of real-world
experience that underscore her ability and her credibility on
the bench.
As an Assistant State Attorney General, Ms. Torresen worked
in the Appellate Section of the Criminal Division. There she
represented Maine in the appeals of violent crime convictions.
She wrote 16 appeals, briefed 12 habeas corpus cases, and
argued nine murder cases. Ms. Torresen also served as an
assistant to the Advisory Committee on the Maine Rules of Civil
Procedure.
Ultimately, Ms. Torresen will bring to the bench a
diversity of trial and appellate experience before Maine's
Federal magistrate and our district and appellate judges. She
would also bring to bear the academic distinctions of having
served as executive editor of the University of Michigan Law
Review as well as the professional honor of receiving a
unanimous well-qualified rating from the American Bar
Association. I am confident that Nancy Torresen will serve the
people of Maine and our Nation with integrity and excellence,
and should she be confirmed, as I hope she will be, Nancy and
Jay's three children undoubtedly will be extremely proud of
their parents that not just one but both of them will have the
U.S. Senate endorsement.
Thank you, Mr. Chairman, and I look forward to the
Committee's favorable review of Ms. Torresen's nomination.
Senator Coons. Thank you, Senator Snowe.
Senator Collins.
PRESENTATION OF NANCY TORRESEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MAINE, BY HON. SUSAN M. COLLINS, A U.S.
SENATOR FROM THE STATE OF MAINE
Senator Collins. Thank you, Mr. Chairman, and thank you for
the courtesy in allowing us to proceed with our statements.
Before I give my formal remarks, I just have to remark on the
fact that it is wonderful to have two women Senators
introducing the woman who has been nominated to be the first
female to be a Federal District Judge in Maine. In Nancy we get
it right on the appropriate ratios.
It is a great honor to appear before this distinguished
Committee to encourage the confirmation of Nancy Torresen. She
is eminently well qualified to be confirmed as U.S. District
Judge for Maine. Ms. Torresen has led an exemplary career of
public service, culminating in her current position as an
Assistant U.S. Attorney. Let me tell you a little more about
her background to supplement what my colleague Senator Snowe
has already told you.
Ms. Torresen graduated from Hope College cum laude with a
B.A. in 1981 and received her law degree cum laude in 1987 from
the University of Michigan Law School, where she served as
executive editor of the Law Review.
After graduation, she came to Maine to serve as a law clerk
to the extraordinarily well respected Judge Conrad Cyr. From
1988 to 1990, she worked at the law firm that is well known in
this city of Williams & Connolly. In 1990, she had the good
judgment to return to Maine where she became an Assistant U.S.
Attorney for the District of Maine and initially handled civil
matters involving Federal agencies.
In 1994, she was assigned to the Appellate Section of the
Criminal Division of the Maine Attorney General's office where
she was primarily responsible for representing the State of
Maine in appeals of serious violent crime convictions.
In 2001, Ms. Torresen returned to the U.S. Attorney's
Office where she has been responsible for investigating and
prosecuting Federal crimes in the northern half of our State.
In conversations with Ms. Torresen, I was impressed by her
dedication and passion for the law. I also appreciate her 21-
year-long commitment to public service. She has remarked that
she is proudest of her criminal prosecution efforts because of
the urgent need to protect the public from violent criminals
and her desire not to let down the victims of violent crime.
One of her most significant cases recently was the
prosecution of a multi-state bank robber dubbed ``The Burly
Bandit.'' This got a great deal of publicity in Maine. From
April through July, Robert Ferguson robbed more than ten banks
and credit unions throughout New England. The spree ended with
a robbery of Bangor Savings Bank in July, and on October 1st of
last year, Mr. Ferguson pleaded guilty in U.S. District Court
in Bangor to 11 counts of bank robbery. Ms. Torresen was
recognized by our U.S. Attorney for her outstanding work in
coordinating the prosecution in six States.
Except for her brief stint in the private sector, Ms.
Torresen's entire career has been that of a dedicated public
servant. She is very well respected in the legal community, and
as Senator Snowe mentioned, she has been rated as unanimous
well qualified by the American Bar Association.
But I want to share with the Committee my conversations
with members of the legal community in the State of Maine. One
of them was with Tim Woodcock, who is a well-known attorney in
Bangor, and his comments were very typical of what I heard when
I called and asked people what they thought of Ms. Torresen.
Tim said that he regards her as ``highly professional,
extremely capable, tough but fair, and a strong advocate for
the adherence by law enforcement to all legal requirements.''
These are all qualities that we should look for in our judicial
nominees.
Ms. Torresen's work as a prosecutor in both the Federal and
State judicial systems, her integrity, her temperament, and her
respect for precedent make her well qualified to serve as
Maine's next Federal judge. Maine has a long and proud history
of superb Federal judges, and I believe that Nancy Torresen
will continue that tradition, if confirmed.
Thank you very much for the opportunity to appear before
your Committee.
Senator Coons. Thank you very much, Senator Collins and
Senator Snowe.
I have received a request from my colleague on the
Committee, Senator Schumer, to be able to speak on behalf of
his home State nominee, Dr. Kuntz, given other commitments he
has. With the forbearance of our three other colleagues who are
also here to introduce their home State nominees, I will
proceed to defer to Senator Schumer.
PRESENTATION OF WILLIAM F. KUNTZ II, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK, BY HON. CHARLES E.
SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Well, thank you, and I know my colleagues
are waiting. I apologize for being late. I will ask that my
entire statement be read in the record and just be very brief.
First, it is an honor to introduce Dr. William F. Kuntz II,
to the Committee today. I have nominated a lot of people to the
bench. This guy's credentials are just incredible. He grew up
in the projects called ``The Polo Ground Projects,'' went to
Harvard College and has actually four degrees from Harvard--I
hope you will not hold that against him--undergraduate,
master's degree in history, law degree, and a Ph.D. in American
legal history. He then went and spent 33 years as a litigation
leader in one of New York's finest law firms, Baker &
Hostetler.
And what impressed me the most--and there were many
things--he served 23 years on the Civilian Complaint Review
Board. That is where citizens bring complaints about police
officers. It is a hotbed. It is like serving on the Ethics
Committee here, but much worse. No one wants to do it, and
someone has to do it. He was respected by both sides--the
people complaining and the police. He was moderate, he was
thoughtful, and he did everything that was fact based. And he
stayed on 23 years and is looked to by everyone in New York as
the expert on this issue.
When in private practice, one of the things he did was
recover money from those who steered clients to Bernie Madoff.
He has been part of the Legal Aid Society, the Practicing Law
Institute, and he is also--two other points, and then I will
yield to my colleagues. He is one of the nicest people you
would ever want to meet. He is just a fine human being, sort of
well respected, beloved in certain circles in New York. And the
only other two things I would say to my colleagues, he is a
true moderate. I try to nominate people not from the far right
and not from the far left, because they both try to make law
rather than follow the law. And, second, the Eastern District
of New York, my home district, on which he would serve, is a
judicial emergency district. In other words, we are desperately
short of judges on that. I would ask unanimous consent that my
entire statement be read in the record. I thank my colleagues
or their indulgence and congratulate Mr. Kuntz on his
nomination, and I am hopeful we can have a speedy confirmation
process for you, sir.
Senator Coons. Without objection.
The prepared statement of Senator Schumer appears as a
submission for the for record]
Senator Coons. Thank you, Senator Schumer, for those
comments on behalf of Dr. Kuntz.
We will now proceed to the Senators from Louisiana, who
will be speaking by way of introduction on behalf of Ms. Brown.
Senator Landrieu.
PRESENTATION OF NANNETTE JOLIVETTE BROWN, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON.
MARY L. LANDRIEU, A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Landrieu. Thank you, Mr. Chairman and distinguished
members of this panel. It is with great pleasure and pride that
I present to you today Mrs. Nannette Jolivette Brown, a nominee
for judge in the Eastern District of Louisiana. I was extremely
pleased to submit her name for consideration to President
Barack Obama for this appointment.
Mrs. Brown is joined today by her very supportive husband,
Marcus Brown, and her two very proud children--Christopher
Dylan and Rachel--and they are all with her today in this room.
Mrs. Jolivette Brown has rightfully garnered the support of
both of her home State Senators, and I am so pleased to be
joined by my colleague Senator Vitter in support of this
nominee.
Mrs. Brown is equipped with a remarkable array of legal
experiences, Mr. Chairman, which range from law professor to
legal litigator and mediator for one of the most established
and well-respected law firms in our State. She has also held
several high-level positions with the city of New Orleans,
having first been appointed only at the age of 30 to head one
of our departments and now serves as city administrator, city
attorney for the city of New Orleans.
Her life has been committed to justice and fairness, and
her own personal experiences have dictated a great deal about
the way she operates, the way she thinks, her heart for justice
and compassion.
Nannette Brown grew up at a time, sadly, in Louisiana's
history where she and her younger brothers literally had to sit
at the back of the bus as those buses made their way through
the city of New Orleans. So she brings with her to this bench
not only a commitment to justice learned in the classrooms and
learned along the way in her career, but a real heartfelt
commitment to the indignities suffered when the law is not
where it needs to be.
After putting herself through college and law school, one
of the country's most prestigious firms, as I said, Adams &
Reese, immediately hired her. She made a quick name for herself
as a competent and energetic young attorney.
She has earned an L.L.M. in energy and environmental law
from Tulane as well as mediation certificates from both Loyola
and Harvard. These advanced degrees, in addition to the decades
of practical experience, her own life experience, numerous
articles that she has published have promoted her, and she is
understood to be one of the leading figures in our legal
community. She has also, Mr. Chairman, served as professor of
law at Southern University, Loyola Law School, and Tulane,
among many other subjects that she taught, Federal Civil
Procedure.
I must also say outside of the classroom she exemplifies
leadership and compassion as well. Outside of the courtroom,
she exemplifies, and outside of the legal community. After
Katrina, which I think is very telling, when all of us were
busy getting our own lives and families back together, Nannette
and her family were in Houston. She had a lot to do with
getting her own family situated. But as Nannette would, she
found a way to put others ahead of herself. Within a few short
months, she had not only joined the Big Brothers and Big
Sisters organization of Houston, but she was spearheading that
organization's effort to mentor children who had been displaced
from New Orleans so that they could get their way more secure
and find a way home more carefully.
So on behalf of so many people from the city of New
Orleans, the State of Louisiana, from her many professors, her
many friends, her many peers that she served with in the legal
community, it is absolutely my pride and joy to present her to
this Committee.
I want you all to know in closing that, should your
Committee give her your approval and she move on to the Senate
for confirmation, Nannette will become the first African-
American woman to ever serve as an Article III judge in
Louisiana's history. It is a fitting achievement for someone
who has devoted so much to equal protection and application of
the law.
Senator Coons. Thank you, Senator Landrieu.
Senator Vitter.
PRESENTATION OF NANNETTE JOLIVETTEBROWN, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON. DAVID
VITTER, A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Vitter. Thank you, Mr. Chairman and members, and I
am very pleased to join Senator Landrieu in introducing and
strongly supporting Nannette Jolivette Brown for this position
on the Eastern District Court of Louisiana, and it is a real
honor for me and it is a great personal pleasure for me. Ms.
Brown and I were classmates at Tulane Law School. We both got
our J.D. there. But she went further. She also got her L.L.M.
at Tulane, specializing in energy and environmental law, as
Senator Landrieu mentioned.
She has a wealth of background and experience and expertise
that she will bring to this job. Of course, right now, as was
mentioned, she is city attorney for New Orleans. It is a very
wide-ranging, very challenging position, basically the top
lawyer for all city issues. She has done a number of things,
including mediate over 100 cases, for instance, right after
Hurricanes Katrina and Rita as part of the Louisiana Hurricane
Mediation Program. She is a real expert in environmental law in
particular, with an advanced degree in that. She has taught, as
Senator Landrieu said, a number of places: Loyola Law School,
Southern Law Center, and she was a teaching fellow at Tulane
Law School.
So she does bring a real wealth of public and private
sector experience to the Federal bench. She also brings a great
deal of common sense, a wonderful, warm, calm personality that
will be perfectly suited to the right demeanor a judge should
have. And so it is a real pleasure for me to help introduce her
and to strongly support her confirmation.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator, and thank you,
Senator Landrieu.
Now I would like to invite Senator McCaskill to introduce
Judge Ross from Missouri.
PRESENTATION OF HON. JOHN A. ROSS, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MISSOURI, BY HON. CLAIRE McCASKILL,
A U.S. SENATOR FROM THE STATE OF MISSOURI
Senator McCaskill. Thank you, Mr. Chairman, and my thanks
to the Committee for holding this hearing today so these
important nominees can move forward in our process.
It is my pleasure today to introduce to the Committee John
Ross, and I have a bias, and my bias is that there are people
who choose to labor in the field of public service as it
relates to the law, and that many times they are overlooked in
terms of their skill and their ability to administer justice in
our country, especially at the Federal level. So my bias is
showing today because of who John Ross is and what he has
accomplished.
John Ross graduated from law school in the late 1970's and
very quickly moved into a job where he was an assistant
prosecutor, an assistant prosecutor at the State level. And,
once again, I have a bias, and my bias is that State-level
prosecutors do not get to pick which cases they handle. They
respond to 911 calls, and they take all cases. They do not get
to decide that their time is only worthy of a certain kind of
case. And John Ross worked his way up in the largest
prosecutor's office in the State at that time, in St. Louis
County, eventually becoming the chief trial attorney in that
office.
This is a man who has tried more than 50 jury trials in his
career. In my humble opinion, there is no better place to learn
how to be a good judge than in the courtroom. And in the
courtroom, you get to see lots of different judges in a very up
close and personal way because you are in the trenches actually
trying those cases week in and week out. And you learn about
judicial demeanor. You learn about judges that get robe-itis,
that all of a sudden decide that their judgment cannot be
questioned and that they do not have time to listen carefully,
not just to the lawyers in front of them, but to the witnesses
and to the plaintiffs and to the defendants. And it is, I
think, that experience that uniquely qualifies John Ross to
take this important position on our Federal bench.
He was selected to join the State bench, and for 11 years
he has been a circuit judge in the busiest circuit in Missouri.
And we have a system in Missouri where judges are reviewed by
the lawyers, and this is done anonymously so it is pretty darn
accurate. And the judges that get these surveys from the
lawyers always wait with bated breath as to how the lawyers are
going to rate them.
John Ross always gets if not the highest, one of the very
highest ratings in St. Louis Circuit Court because of the way
he handles his courtroom, because of the way he respects the
lawyers, because of his fairness, because of his love of the
law and his ability to not only just administer justice but
really work at it--I mean, really, really work at it. And so
since 2009 he has, in fact, been the presiding judge of the
busiest circuit in the State of Missouri.
So it is that background that qualifies him to take the
Federal bench, a trial bench, where he will draw upon more than
a decade of service as a State trial judge, more than a decade
of service trying probably more jury trials than 95 percent of
these nominations that come in front of this Committee. And I
think that is more important, frankly, than his degree,
although his degree is from a great university, Emory
University, both his undergraduate and law degree, and I think
in many ways more important than many of the other
qualifications that are sometimes emphasized in these hearings.
He also is very active in the community and particularly in
the area of family violence and shelters for battered women. He
has also been very active in raising money for a charity that
many of us are very partial to because it honors a man who
served as an elected official in St. Louis County for many
years who was struck down very young in his life and who John
had the honor of working for in St. Louis when he ran the
county counselor's office for Buzz Westfall, who is the former
county executive.
So I think he is going to be one terrific Federal judge. I
highly recommend him to you. I think he will be the kind of
judge that all lawyers will look forward to working in front of
and that all of us will be proud of for many years to come.
Thank you, Mr. Chairman, and thank you for the time of the
Committee.
Senator Coons. Thank you very much, Senator McCaskill.
Next we will turn to the Senator from South Carolina, who
will introduce to the Committee Judge Cain.
Senator Graham.
PRESENTATION OF HON. TIMOTHY M. CAIN, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY HON. LINDSEY
GRAHAM, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman.
Senator McCaskill has a bias. I have a big one. Tim used to
be my law partner.
[Laughter.]
Senator Graham. And I hope he can get confirmed in spite of
that. He has been a family court judge for 11 years, I think.
And you talk about the ability to make hard decisions fairly
quickly. That is the ultimate legal experience, I think, is to
be a family court judge sitting over child custody cases,
dealing with abused children complaints, trying to be fair when
it comes to the economic equities of a marriage that is broken.
You really meet the human condition in family court in every
way possible. And how he did this for 11 years I will never
know. He is a far better man than I am, and let me tell you, I
think most people in South Carolina would say that Tim Cain is
one of the best lawyers and judges we have ever produced.
His wife, Renee, is a social worker, also a very dear
friend. She has seen a tough side of life. So we are going to
have a man go on the bench in South Carolina, I hope, who has
seen just about everything you could see, and he has tried to
be as fair as possible. And what more contentious issue than
deciding who gets a child? Every lawyer almost without
exception would tell you that he did his job in the most
outstanding fashion.
He was a city attorney and he was a county attorney, so he
understands local government issues and how it is to advise
politicians, which I would not wish on anybody, legally. He has
been an assistant prosecutor and an assistant public defender.
So he has sat on both sides. He understands what it is like to
defend somebody, and he also understands what it is like to
represent a victim of crime.
He was chosen by our Supreme Court Chief Justice, Jean
Toal, to sit on our Supreme Court for a period of time when an
opening became available, which I think spoke volumes--which I
believe speaks volumes about Tim's legal ability and respect.
He was qualified by the ABA without exception. His son,
Martin, got a new suit for this hearing. We went to dinner last
night, got a new sports jacket, so this was good for the
economy, Mr. Chairman.
[Laughter.]
Senator Graham. And I want to thank President Obama. He
certainly did not have to do this. And Tim will be not a
Republican judge and not a Democratic judge. He will be a
lawyer's judge. I think he will administer justice at the
Federal level in a way that we could all be proud of, and we
have a strong tradition in South Carolina of putting qualified
people on the bench no matter what party is in power. And we
are going to continue that tradition with Tim Cain, literally
one of the nicest people I have ever met in my life. And when
this job is over, as a Senator there are a lot of things you
can look back on, hopefully to be proud of, and some mistakes
we will all make, but I can tell you without any doubt one of
the proudest moments I have had being a U.S. Senator from South
Carolina is getting to introduce Tim and recommending him to
the President and hopefully getting the vote on the floor of
the Senate soon for his confirmation.
Thank you, Mr. Chairman.
Senator Coons. Thank you, Senator. I would like to thank
all of the home State Senators who have spoken on behalf of our
five nominees today.
Before we proceed to the testimony, I will take a moment
for an opening statement and then invite Senator Grassley as
well.
STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Coons. I would just like to take a moment and note
that so far in the 112th Congress the Senate has indeed
increased the pace at which district court nominees are being
confirmed. Through bipartisan cooperation over the last several
months, we have been able to achieve a modest but significant
reduction in the overall number of judicial vacancies.
More work does remain to be done. Ten percent of Federal
judgeships still sit vacant; 37 of these are considered
judicial emergencies, vacancies that have lasted more than 18
months and have caused other judges on the same courts to take
on an overly burdensome caseload. And today Attorney General
Holder testified before this very Committee that the number and
duration of vacancies has created a crisis in our Federal
courts. This is not a partisan issue. Chief Justice Roberts has
similarly noted that the prolonged vacancies are causing acute
difficulties for some judicial districts.
The Senate as a body can help alleviate this crisis by
acting on, I believe, 44 judicial nominations that have been
referred to us, and the majority are wholly noncontroversial
and should be confirmed as promptly as possible.
I am disheartened, however, today that the Senate stands
poised to spend 30 hours over the coming days engaged in a
protracted post-cloture debate regarding the nomination of one
U.S. district court judge, Jack McConnell, nominated for the
District of Rhode Island. To have to file cloture on a district
court nominee with the unanimous support of his home State
Senators is nearly unprecedented. In fact, research by my staff
shows only three cloture petitions have ever been filed for
district court nominees. Democrats did not filibuster a single
nominee to the district court during President Bush's
administration, and my real hope is that the acrimony
concerning Mr. McConnell is just a bump in the road and does
not signal any escalation of the partisan rancor surrounding
judicial nominees that may have characterized previous
Congresses.
The five nominees sitting before us today are, as we have
heard from their home State Senators, outstanding qualified
nominees, and they certainly deserve a prompt and thorough
consideration. I look forward to continuing the great progress
we have made by working with Chairman Leahy, Ranking Member
Grassley, and my fellow Judiciary Committee members to consider
these nominees in a thorough and expeditious manner.
Senator Grassley.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Thank you, Mr. Chairman.
In the first few months that I have been Ranking Member of
the Judiciary Committee, as you just stated, we have worked in
good faith together to forward consensus nominees. As I said a
couple of days ago, by any fair measure we are moving nominees
at a brisk pace. The Senate has been in session only 44 days
this Congress, and in that short period of time, we have
confirmed 19 judges. In fact, thus far we have taken positive
action on 43 of 63 nominees submitted to the Congress. I want
to emphasize that we have taken positive action, in a
percentage form, on 68 percent of the judicial nominees to the
Congress. And I do not have any reason to believe at this
point, unless something comes up that I do not know about, that
these will be controversial that we are hearing from today. So
I am glad to welcome the nominees appearing before us today.
Each of them are nominated to be a District Judge. Of
course, you all have family and friends that you are proud of,
and we welcome them as well. Your qualifications and
backgrounds have been thoroughly vetted and reviewed. Today is
when the public gets the opportunity to hear from you directly.
So, of course, I welcome you all and look forward to your
testimony.
I have a longer statement I am going to insert in the
record.
Senator Coons. Without objection.
Senator Grassley. Thank you.
[The prepared statement of Senator Grassley appears as a
submission for the for record.]
Senator Coons. Thank you very much, Senator.
Now I would like to ask the five nominees to step forward
and please remain standing at your places. If you would please
raise your right hands and repeat after me. Do you solemnly
swear that the testimony you are about to give to the Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Judge Ross. I do.
Judge Cain. I do.
Ms. Jolivette Brown. I do.
Ms. Torresen. I do.
Mr. Kuntz. I do.
Senator Coons. Thank you, and let the record show the
nominees have been duly sworn and taken the oath, and please be
seated.
And now each of the five nominees will in turn have an
opportunity to recognize their family and friends and to give
an opening statement.
Ms. Torresen, starting with you, I welcome you to
acknowledge family members or friends you have here today and
then to offer your opening statement. Ms. Torresen.
STATEMENT OF NANCY TORRESEN, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MAINE
Ms. Torresen. Thank you, Senator Coons.
I want to thank Senator Coons and Senator Grassley for
convening this hearing today. I want to thank President Obama
for nominating me for this position, and I would like to thank
particularly Senators Snowe and Collins for their very kind
introductions. And I would like to introduce my family to you.
Right behind me is my husband, Jay McCloskey, and then my
daughter is here, Abby McCloskey, behind him. My niece is next
to her, AnneMarie Torresen. Beyond those two in the third row
is my mother, Frances Torresen, and my brother, David Torresen.
And in the back there is my brother, Robert Torresen as well. I
know my father, who is deceased, is with us in spirit, and I
also have two children at home, Jack McCloskey and Lilly
McCloskey, who could not make it today because of school
commitments. But I am sure they are with us in spirit as well.
I have no opening statement, and I would be happy to answer
any questions that you have.
[The biographical information of Ms. Torresen follows:]
Senator Coons. Thank you, Ms. Torresen.
Ms. Brown.
STATEMENT OF NANNETTE JOLIVETTE BROWN, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA
Ms. Jolivette Brown. Thank you, Senator Coons. I also want
to thank you and Senator Grassley for holding this hearing and
providing us an opportunity to provide testimony. I want to
thank the President of the United States for making this
nomination. I need to thank Senator Landrieu for her
recommendation to the President, and I am greatly thankful to
Senator Vitter for supporting my nomination.
I have here with me today my husband, Marcus Brown; my two
children, Christopher and Rachel. Looking at us from home are
my siblings, Carolyn, James, Charles, and Dwight. So I just
want to introduce you to them, and also thank who I know is
watching, many people at city hall and New Orleans who have
embraced me and embraced this moment with me.
So with that being said, Senator, I thank you again for
holding this hearing, and I have no further opening statement.
[The biographical information of Ms. Jolivette Brown
follows:]
Senator Coons. Thank you, Ms. Brown.
Mr. Kuntz.
STATEMENT OF WILLIAM F. KUNTZ II, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF NEW YORK
Mr. Kuntz. Thank you very much, Mr. Chairman, and thank you
so much, Senator Grassley, for being here. Can you hear me now?
Can you hear me now?
Senator Coons. Yes.
Mr. Kuntz. Thank you.
Senator Coons. Thank you.
Mr. Kuntz. Not my usual problem. I apologize. Mr. Chairman
and members of the Committee, I too would like to thank
President Obama for nominating me, and I would like to thank
Senator Schumer for recommending me to this august Committee.
I am pleased and honored to introduce to you today my wife
of 33 years, Dr. Alice Beal, who is the director of palliative
care for the Veterans Administration of the New York Harbor
System, who is here today. I would also like to introduce my
daughter, Katharine Lowell Kuntz, who is completing her second
year at Tufts Medical School, the school attended by her
mother. My wife's cousin and best friend, Alletta Belin, who is
a distinguished environmental attorney now working with great
distinction in the Department of the Interior, is here today.
And, finally, Mr. Joel Motley, who is president of Motley
Communications and a friend since college and law school. Joel
first introduced me to his parents, Joel, Sr., and the
Honorable Constance Baker Motley, more than 30 years ago. He
has been a friend and an inspiration throughout my adult life.
Our other two children, William Thaddeus and Elizabeth Ann,
apologize for not being here today. Will is the assistant
director of professional scouting for the New York Yankees and
is taking his law school exams at the night division at
Fordham. And Lizzie is completing her final set of exams and
papers today and is scheduled to graduate from Harvard College
later this month.
I thank you so very much for this opportunity to appear
before you today. My parents are both deceased, but I am sure
they are with us in spirit today, and I thank you so much.
[The biographical information of Mr. Kuntz follows:]
Senator Coons. Thank you, Mr. Kuntz.
Judge Cain.
STATEMENT OF HON. TIMOTHY M. CAIN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF SOUTH CAROLINA
Judge Cain. Thank you, Senator Coons, for presiding at this
hearing today. Thank you, Senator Grassley, and my thanks to
Senator Leahy for scheduling these hearings and for the
important work of the full Committee. I also want to thank the
President for his nomination and also Senator Graham for his
kind introduction.
With me today, as he indicated, are my wife of 25 years,
Renee, right behind me, and my son, Martin, with the new suit.
He is a freshman at Walhalla High School in Walhalla, South
Carolina, and he is here with the consent of his principal, Ms.
Hughes, and his teachers. And so I thank them for their
kindness.
Briefly, I would just like to acknowledge some folks at
home in South Carolina who are probably watching today: my
parents, Harris and Helen Cain, who could not be here for
medical reasons and health reasons; and my sister, Sandra
Mullican, who is actually taking my father for a doctor's
appointment today; and my sister, Pamela Carpenter; my wife's
parents, Louis and Betty Patterson; and all of my brothers and
sisters and colleagues in the South Carolina judiciary, for all
the hard work that they do. Thank you.
[The biographical information of Judge Cain follows:]
Senator Coons. Thank you, Judge Cain.
Judge Ross.
STATEMENT OF HON. JOHN A. ROSS, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MISSOURI
Judge Ross. Thank you, Senator Coons, and I want to thank
Senator Grassley and all of the members of the Committee for
letting us have this hearing here today. We truly appreciate
it. It is truly an honor and privilege to be here.
I want to thank the President for the nomination, and I
especially want to thank Senator McCaskill for her kind words
in introducing me and her support throughout this process.
I am pleased to be here today with family and friends, so I
would like to introduce my wife, Judy, who is behind me. We are
celebrating our 20th anniversary later this year. And my son,
Joe, who will be 13 later this month; and my daughter, Emily,
who will be 16 later this month. And I also had to get approval
from their teachers and principals to allow them to be here for
this experience.
I also have my nephew, William Goodman, who came down from
New York for this; my niece, Lauren Goodman, who is an attorney
here in Washington, D.C.; and my very, very dear friends Dr.
David Robson, his wife, Deb, and their daughters Kelly and
Anna, who are here. And I would also just like to acknowledge
my parents, Bernie and Elizabeth Ross, who are 89 and 86 and
could not travel here, but are with my sister watching this on
a webcam; and my father-in-law, who is a retired St. Louis city
policeman, Fred Lucreth, who I think is also watching it on a
webcam.
So thank you very much.
[The biographical information of Judge Ross follows:]
Senator Coons. Thank you. Thank you to all five of our
nominees for sharing your families and friends with us and for
beginning this process.
I would like to now move to the questions, if we can. We
are going to do 10-minute rounds.
I would like to begin by just asking, if I could, each of
you in turn to briefly describe your judicial philosophy, how
you see the challenge of serving as a Federal district court
judge.
Ms. Torresen.
And we will go in the same order in which you introduced
yourselves, if you would.
Ms. Torresen. Thank you for the question, Senator. I would
say that my philosophy is really about what I am going to do,
if I am lucky enough to be confirmed, and in any case I would
approach the courtroom with an open mind. I would listen
carefully to the arguments presented by both sides. I would
ascertain the facts, and then I would start to study the law in
that area. I would apply existing precedents from the Supreme
Court, and the First Circuit in my instance. And I would try to
resolve the case, the controversy before me as narrowly as
possible. And I think that sums up what I think the judge's
role is and in some ways is really my philosophy as well.
Senator Coons. Thank you, Ms. Torresen.
Ms. Brown.
Ms. Jolivette Brown. Thank you for the question, Senator.
Should I be confirmed, my judicial philosophy would embody
three basic principles: stability, predictability, and
civility. In that regard, I would treat every party and
litigant and participant appearing before me with fairness and
neutrality. I would only decide issues that are properly before
me. I would have a commitment to the rule of law and precedent.
And, finally, my judicial philosophy would be to preside on
every matter with a calm, even temperament. So in that regard,
Senator, that would constitute my judicial philosophy, should I
be confirmed.
Senator Coons. Thank you, Ms. Brown.
Mr. Kuntz.
Mr. Kuntz. Thank you very much for the question, Senator. I
agree with what has been said, and I would say that careful
listening, patience, and humility in terms of the proper role
of the judge are the things that I would bring to the table, if
am fortunate enough to be confirmed. I think those are elements
that are crucial.
Senator Coons. Thank you, Doctor.
Judge Cain.
Judge Cain. Thank you for the question, Senator. I agree
with what my fellow panel members have stated, and the approach
I have tried to take for the last 11 years is to be a neutral
and unbiased arbiter of the cases that come before me, and to
take the facts of each case and apply the law to the facts
without passion or prejudice, and try to ensure that the trial
or hearing is conducted in a way that even though a party may
not get the result they want, they leave the courtroom feeling
that they have had a full and fair opportunity to be heard.
Thank you.
Senator Coons. Thank you, Judge.
Judge Ross.
Judge Ross. Thank you, Senator. Again, I fully believe that
everyone is entitled to a full and fair day in court, and every
litigant who comes into my courtroom is entitled to be treated
with respect and dignity. And I try and listen very carefully
and listen to all sides in any case and apply the law to the
facts, and that would be my intent.
Senator Coons. Thank you.
If I could, in the next round I would be interested in
hearing each of you speak more specifically to your view of
precedent, how you would approach the use of precedent, and
also what is the role of courts in interpreting laws written
and passed by elected legislative bodies as well. So the
combination of legal precedent and what standards or practices
or approach or philosophy you would apply to the interpretation
of laws enacted by legislative bodies.
Ms. Torresen.
Ms. Torresen. Thank you for the question. As far as
precedent goes, I would consider myself strictly bound by the
Supreme Court precedent and by precedents from the First
Circuit Court of Appeals. Their word is the final say, and I
would apply what the law is as they have interpreted it.
As far as statutes go, I think any judge starts with the
plain meaning of the statute, and that is what I would do as
well. You decide whether it is clear on the face of the statute
what the statute says, and if there is ambiguity, then you look
to the purpose of the statute, what was the Congressional
intent behind the statute. And, generally, you can make out
what the statute means and what you should do by those two
tools.
Senator Coons. Thank you, Ms. Torresen.
Ms. Brown.
Ms. Jolivette Brown. Thank you for that question, Senator.
I understand that if I am confirmed as a Federal district court
judge, I am bound by precedent. So I would be following the
precedents set by the United States Supreme Court and the Fifth
Circuit Court of Appeal.
Secondarily, when it comes to the legal interpretation of
laws enacted, I agree with Ms. Torresen that you must first
begin with the text of that law and look to the plain and
obvious meaning. If you cannot come to a conclusion at that
point, then you should look to Supreme Court and appellate
court precedent, again, for either authority on point or
analogous points. And then secondarily, by analogy, you can
look to other State court precedents; and, finally, to the
legislative purpose or intent if that is available.
Senator Coons. Thank you, Ms. Brown.
Mr. Kuntz.
Mr. Kuntz. I agree that legal precedent, Mr. Chairman, is
key and is binding, and I would look to Supreme Court precedent
in the first instance and to the precedent of the Second
Circuit beyond that.
In terms of statutes enacted by the Congress, I would
certainly follow the plain language of those statutes. That is
what you look to to determine what the legislator meant and
what the legislature has meant, and that is where I would focus
my attention.
Senator Coons. Thank you, Doctor.
Judge Cain.
Judge Cain. Thank you for the question, Senator. If I am
fortunate enough to be confirmed, I would review any applicable
Federal statutes and construe them, the words of those
statutes, in accordance with their plain and ordinary meaning.
And I would also look to precedent as established by the U.S.
Supreme Court and the Fourth Circuit Court of Appeals and
follow that precedent. Predictability is very important in our
system, and I would continue to do that as I have done on the
State court level.
Thank you.
Senator Coons. I will confess to being partial to the Third
Circuit myself.
[Laughter.]
Judge Cain. Yes, sir.
Senator Coons. Judge Ross.
Judge Ross. And I would agree with my colleagues.
Initially, you would look at the plain language of the statute
and the legislation and then be bound by the precedent, in my
situation the Eighth Circuit and the United States Supreme
Court, and I would follow the precedent in all circumstances.
Senator Coons. Thank you.
For the first three, you have spent much of your legal
careers as advocates in different roles, whether in practice in
law firms or in various roles in Government roles. But more
often than not, you have appeared in courtrooms as advocates,
and I would be interested in hearing from each of you how you
view the role of a district court judge as distinct from that
of an advocate and how you will make the transition from long
and successful careers as advocates to being more judicial in
your temperament.
Ms. Torresen.
Ms. Torresen. Thank you for the question. I realize that as
an advocate you are trying to put forth your party's case in
the best light for your party, making every reasonable argument
that you can. That is sort of putting a spin on the ball, so to
speak. And I certainly have done that in my career.
I will say that as a Federal prosecutor I see my role not
quite to win the conviction, so to speak, but I see my role to
see that justice is done. And as part of that, I think I take
an objective view of things, and I try to consider all sides,
particularly in the stage where we decide whether to charge a
case or who to charge and what to charge. So I do think I have
some sort of more middle-of-the-road experience with that, and
I think that will be helpful in making the transition to
becoming a District Judge if I get confirmed.
I do see the need for a District Judge to be completely
open-minded and not biased in any way, and I understand that,
and I believe I could do that with ease, actually, and I hope
to get the opportunity to do so.
Thank you.
Senator Coons. Thank you, Ms. Torresen.
Ms. Brown.
Ms. Jolivette Brown. Thank you for the question, Senator.
In making the transition, I think I would look to the totality
of my professional experiences. I have spent a large amount of
my career as an advocate and as a litigator, but I have also
spent some time in the role as counselor and adviser in many
transactional matters. And in my current position as city
attorney, I advise various political and elected officials and
boards and commissions.
I have also been a mediator, and a mediator is a trained
neutral. I have been a law professor. As a city authority, I am
lead prosecutor on municipal and traffic violations.
So if you look at the totality of my professional
experience, I think you can find what I see as guiding
principles of neutrality and fairness. I have a strong
commitment to the rule of law and applying precedent because I
have stood in many different roles and fully appreciate that.
So I think that I could make a smooth transition to the
judiciary with those guiding principles.
Senator Coons. Thank you, Ms. Brown.
Dr. Kuntz, if you might answer, and then we will turn to
Senator Grassley.
Mr. Kuntz. Thank you, Mr. Chairman. In my experience as a
33-year practitioner in the commercial world, I represented
both plaintiffs and defendants, and so I was on both sides of
the aisle in that regard.
I think the most relevant experience is my 23 years that
you hear Senator Schumer advert to on the Civilian Complaint
Review Board, which is a quasi-judicial post where we would
take complaints and have answers from police officers and make
recommendations to the police commissioner. We did not have the
power to impose discipline, but we would make recommendations.
And there we were always fair and impartial and would listen to
both sides. It was, as he alluded to, very demanding work, but
it is something where I always strove to be worthy of serving
the people of New York in that capacity. So I have had that
experience and think that it is relevant to the kind of work
that I would be doing if I am fortunate enough to be confirmed
as a district court judge.
Senator Coons. Thank you, Dr. Kuntz.
Senator Grassley.
Senator Grassley. Yes, welcome again. I will have different
questions for each one of you. I will have some that are a
little more specific, but some along the same lines as the
Chairman has just asked. So I do not want you to think I did
not hear your answers there, but there is an old saying around
the Senate: ``Everything that has been on this subject has been
said, but I have not said it and, by golly, I am going to say
it.''
[Laughter.]
Senator Grassley. So I am going to start, and I am going to
just concentrate on one person for two or three questions. Some
of you will only have one question.
For you, Ms. Brown, I understand an area of interest for
you has been environmental law. In addition to representing
national environmental groups, you have taught courses on the
subject, including a course on environmental justice. As a
judge, you, of course, will be asked to put aside your personal
views and make decisions based on the law and facts before you.
Do you believe you will have any difficulty making the
transition?
Ms. Jolivette Brown. Absolutely not, Senator.
Senator Grassley. Okay. In 2009, you wrote an article on
environmental justice and how its supporters can sometimes be
in conflict with traditional environmental groups. How would
you define and identify environmental justice? And, second,
what role do you believe the court should play in addressing
concerns about environmental justice?
Ms. JolivetteBrown. Thank you for that question, Senator.
Should I be confirmed and should I get an issue of
environmental justice before me, rest assured that I would rely
on the guiding precedents of the Supreme Court and the Fifth
Circuit Court of Appeal and apply--and carefully listen to the
facts and apply the law to the facts. And nothing else would
come into my consideration.
Senator Grassley. Okay. I believe you answered the second
part of it. Could you define and identify the term
``environmental justice'' ?
Ms. Jolivette Brown. Senator, that is a term that different
groups have a different definition to, and it is one that is
left to judicial interpretation as well. So I would not feel
comfortable giving you a definition that would be construed as
my personal opinion on the topic.
Senator Grassley. Well, I can understand why you would not
want to say something now that would impact whether you were
impartial in a court. But surely if you wrote on this subject,
you have some idea of what environmental justice is. So just
from the standpoint of your writing, how did you define it?
Ms. JolivetteBrown. Well, Senator, in that particular
article, I think what I was relaying was the differences in the
interpretation of environmental justice by civil rights
organizations and how traditional environmental organizations
sometimes interpret the environment, and that civil rights
organizations tend to want to include the urban environment,
and traditional environmental groups look to the traditional
air, water, and soil as the environment.
Senator Grassley. Okay. Thank you. This is the last
question for you. Do you believe that economic considerations
such as job opportunities for residents should be taken into
account in litigation that seeks to prevent an undesirable
industry from being located in a poor community?
Ms. Jolivette Brown. Senator, if I were fortunate enough to
be confirmed and that issue were presented before me, I would
only look to the prevailing precedents on that topic from the
Supreme Court and the Fifth Circuit Court of Appeal. Any
personal opinion I would have, I would check at the front door
of the courthouse.
Senator Grassley. You know what? I said that was the last
question, but I have one other one.
[Laughter.]
Senator Grassley. In July 2002, you participated in an
environmental racism panel stating environmental racism is
``just another symptom of general racism. We are not going to
get environmental justice in this country until we get full
social and economic justice.''
I do not want you to apply that to any case or worry about
anything you say applying to a case. I just want to know what
you meant by that statement.
Ms. Jolivette Brown. If that is a statement that was
reported somewhere and a statement I did not necessarily write
myself, I can try to interpret that from that, and I think from
that it is that the injustices people recognize in the
environmental environment are very similar to some of the
overall societal ills that we face in this country.
Senator Grassley. Okay. I have a couple questions for you,
Ms. Torresen. You have been very involved in the Mabel
Wadsworth Women's Health Center. In fact, you served on that
organization's board from 2006 to 2009. The Mabel Wadsworth
Women's Health Center is one of the only clinics providing
abortion-related services in Bangor. According to their
website, the center is also very involved in advocacy of
abortion rights. In 2009, the center held a vigil for Dr.
George Tiller. Dr. Tiller was a medical doctor in Wichita,
Kansas. At the time of his murder, he was one of three doctors
in the Nation that would provide late-term, post-21-week
abortions to women. The center described Tiller as
``inspirational,'' and ``hero and a leader.'' The quote is
``inspirational,'' and the quote is also ``hero and leader.''
While murder is categorically wrong, calling a late-term
abortion doctor a ``hero'' suggests the center holds extreme
views on women's rights to obtain an abortion.
Do you think Dr. Tiller is inspirational, a hero, and a
leader?
Ms. Torresen. Thank you for the question, Senator Grassley.
I would like to say that the Mabel Wadsworth Women's Health
Center is a place where women can receive health care services
on a broad spectrum, and it covers women from puberty through
post-menopausal years.
I was affiliated as a director of the board for 3 years of
that 2006 to 2009, as you said, and I am not familiar with the
particular newsletter or whatever you are citing there. I was
not aware of it. I am pretty busy and have not read every one
of those. But I believe that the center's views are not
squarely aligned with mine. I do not have an opinion as to
whether Dr. Tiller is an inspiration or a hero. I have not
really studied it, and I really know about him tangentially
through the news media but not more than that.
I do not believe that--I know that the Mabel Wadsworth
Center does not provide abortions in late terms, and I would
say that any opinions that I have on that topic I would leave
outside the courtroom, and I would apply whatever the existing
precedents are for both the Supreme Court and the First
Circuit.
Senator Grassley. On another point, did you have any
concerns about your role with the center in your position as
Assistant U.S. Attorney?
Ms. Torresen. Before I joined the board, I spoke with our
office's ethics adviser and had that cleared so that I could be
sure that I was not in violation by doing that outside
community service?
Senator Grassley. I have another question along that line
that I am going to ask you to answer in writing.
[The information referred to appears as a submission for
the record.]
Senator Grassley. In a letter to the editor of the Bangor
Daily News, you strongly criticized the local YWCA for choosing
not to accept a $25,000 gift for cancer education of lesbian
women. The YWCA said that it could not accept money advocating
rights or positions of only a particular group. You wrote, ``It
is clear that homophobia is behind the YWCA's decision to
reject the money. The YWCA's implicit message is that it does
not care if lesbian women die of breast cancer. Pretty hard to
take from a group whose mission is to empower all women.''
Is this an accurate account of your letter to the editor?
Ms. Torresen. I believe that is an accurate account of my
letter to the editor.
Senator Grassley. Do you believe that the YWCA does not
care if lesbian women die of breast cancer?
Ms. Torresen. That was a bit hyperbolic, and I realize
now----
Senator Grassley. That is enough.
Ms. Torresen. Okay.
Senator Grassley. Do your comments illustrate an
appropriate temperament for a Federal judge? I think that is an
appropriate question.
Ms. Torresen. That is an appropriate question. I thank you
for it, and I thank you for the opportunity to address it.
I wrote that I think 16 years ago, and I believe I have
matured since then. I certainly have learned the lesson that
nothing is ever lost by courtesy. I have been in the trenches
in the Federal courtroom, and I know full well the pressure
that the litigants are under, and I would treat all litigants
in the courtroom, if I were lucky enough to be confirmed, with
respect.
Senator Grassley. Okay. I am going to go out here and have
a little meeting, and then I will be back at the end of your 10
minutes. Is that OK?
Senator Coons. I may not go 10 minutes.
Senator Grassley. Okay. I will be available, so just call
me in whenever you are ready.
Senator Coons. Certainly, Senator. Thank you, Senator
Grassley.
I did not want to neglect the two judges on our panel
today. Having previously asked questions of the other three
nominees about their experience as advocates and how they would
transition from their role as an advocate to a Federal judge, I
just wanted to ask both of you what lessons you have learned in
your experiences in your current judicial roles and how you
would apply them to the distinguishable role of a Federal
district court judge.
Judge Cain.
Judge Cain. Thank you for the question, Senator Coons. Over
the last 11-plus years, I have had the good fortune to hold
court in 17 counties throughout the State of South Carolina. I
have had folks come before me of modest means, and I have had
folks come before me in court who have great wealth. And I
think everyone needs to be fed out of the same spoon,
regardless of their station in life, and I have tried to
approach my job in that fashion.
Of course, at the State court level, we operate under the
South Carolina Rules of Civil Procedure, which are modeled
under the--by the Federal rules and the Rules of Evidence,
which are modeled after the Federal Rules, and I would
continue, if I am fortunate enough to be confirmed, to try to
make sure that everyone who comes into court, regardless of
their station in life, receives a full and fair opportunity to
present their case and to feel comfortable that they have had a
judge who has conducted their hearing in a fair and impartial
manner. And I would hope to be able to bring that same
philosophy to the Federal bench.
Senator Coons. Thank you, Your Honor.
Judge Ross.
Judge Ross. Thank you, Senator. If I am fortunate enough to
be confirmed, I think my broad range of experience in the past
will benefit me in making this transition. I started out in the
prosecuting attorney's office handling all criminal cases, and
then spent 9 years as the county attorney in St. Louis County
overseeing all of the civil litigation for county government.
Some of that litigation was Federal litigation. And in my 11
years as a circuit judge in the busiest circuit in the State of
Missouri, I have seen a wide variety of cases, and I think all
of that experience will help me make the transition again, if I
am fortunate enough to be confirmed. And I think, again, that
it will be a transition, and I understand that I will have
things to learn, but I think that all of those experiences will
assist me in making that transition.
Senator Coons. Thank you, Judge.
I have just one last question for the whole panel. I would
be interested in your views on, as a Federal judge, what role
you have in ensuring fair and equal access to our courts, to
our judicial system, to appropriate treatment. You have all
made some reference to it in passing, but I would just be
interested in your view on how you would view your role in
ensuring equal and fair access to our judicial system.
Ms. Torresen.
Ms. Torresen. I think I need a little clarification on the
question. What do you mean by ``fair and equal access to the
judicial system''?
Senator Coons. Well, you make rulings as a district court
judge that can have some impact on whether or not litigants
appearing before you really have the opportunity to be heard,
and I think in voir dire you also have a role in making sure
that they are being reviewed, judged as it were, by a jury of
their peers. Those are just two suggestions. You also
ultimately set some of the rules and have input into the fees
that are paid and the process by which a case gets before you
as a district court judge. I am just suggesting a couple of the
vectors that are of some concern to me.
All of you have had significant lengthy exposure to the
judicial process in your respective States. The Federal courts
sit in a sort of particular place in that, but cases are fed up
into district courts by a variety of means, and there have been
some questions in our history as to whether or not all cases
arrive with the same standing in front of Federal courts.
So I was just interested in your particular views based on
your own particular experiences about how we ensure equal
access to justice for all Americans.
Ms. Torresen. Thank you for the question and thank you for
the clarification. I think the District of Maine may be
somewhat unique in this regard. For my fellow panel members, it
may be slightly different. But in Maine, I do not see an issue
with people having fair and equal access to the Federal courts,
and I think everybody that comes to the Federal court is
treated fairly and equally.
There are instances, I am sure, where if money is an issue,
there are court-appointed lawyers that are available that the
courts can provide in the criminal context, and that is done
routinely. Also, for waiving certain fees like special
assessments, those are often waived in the case of someone who
has the inability to pay. So I do not see that as a particular
problem in the District of Maine.
Also, Maine is a State which I think the recent census data
is something like 98 percent white, and that is, you know--when
we empanel a jury, almost all of the people in the panel are
white. And that is an issue, but we do not--you know, that is
just the demographics of the State of Maine.
So I really do not see that we have an issue of an unfair
or a situation where someone is not getting access to judgment
in the Federal court.
Senator Coons. Thank you, Ms. Torresen.
Ms. Brown.
Ms. Jolivette Brown. Thank you for the question. There are
a number of ways I see that we can address the issue of fair
and equal access to justice. As you know, I have spent a lot of
time as a mediator. Mediation is a part of the Federal practice
now. I think mediation is a cost-efficient and effective way to
move litigants through the system in a way that is less costly
to them.
Secondarily, for those who choose to continue on, I think
early status conferences and opportunities to bring the parties
together again moves those matters along. And I think all of
those things add to the overall access and fairness and justice
to all. And just the simple fact that parties should feel
confident when they appear before any court that only the
issues properly presented before them will be heard, they
should feel confident that they are being treated fairly
despite their position or walk in life.
And so I think all of those three things take into account
those ways that we can play a role in fairness and access to
justice for all.
Senator Coons. Thank you, Ms. Brown.
Mister--Dr. Kuntz.
Mr. Kuntz. Please, ``Bill'' is fine, Mr. Chairman. Thank
you.
In Brooklyn, we do have some of these issues in the Eastern
District of New York, and there are a number of things that I
have been involved with, and others have as well. The expansion
of CJA panels, Criminal Justice Act panels, is important. The
involvement in bar association activities is also important,
such as Federal Bar Council. And we have a very fine group of
magistrate judges who have been very active in terms of helping
the district court judges to provide access to the courts for
more and more people. I think this is an area that is of
immense importance, and particularly in the habeas area as
well.
So I have been involved for 33 years as a litigator through
bar association activities and, if I am fortunate enough to be
confirmed, would certainly continue those efforts to enhance
accessibility. And I thank you for the question, Mr. Chairman.
Senator Coons. Thank you, Dr. Kuntz.
Judge Cain.
Judge Cain. Thank you for the question, Senator.
Everyone should have access to justice and access to the
courts regardless of their station in life. And just to follow
up on my response to an earlier question, I have had folks in
my courtroom of modest means and great means, and the courtroom
is a place where everyone should be treated the same and
treated fairly, regardless of their station in life.
On the State level in which I work, our State Supreme Court
has done a good job of ensuring access to the courts by all
persons and has set rules and procedures by which filing fees
can be waived when appropriate, and I follow those guidelines
and procedures. And when a party applies to file an action or a
motion and be exempted from the requirement of a filing fee, if
it fits within the parameters established by my State Supreme
Court, I freely waive that.
Thank you.
Senator Coons. Thank you, Your Honor.
Judge Ross.
Judge Ross. I also think it is very important to provide
access to the courts, and I think it is important to be
sensitive to the rising costs of litigation. And certainly at
the State court level, we have seen an increase in pro se
litigants trying to file cases on their own, and we have taken
a number of steps in our court to assist pro se litigants and
indigent litigants to have access to the courts. And I would
continue that practice if I am fortunate enough to be
confirmed.
Senator Coons. Thank you, Your Honor.
My time has expired, and I will defer now to Senator
Grassley.
Senator Grassley. Dr. Kuntz, I see you left a lot of money
at Harvard.
[Laughter.]
Senator Grassley. Are there any other degrees you can get
from Harvard?
Mr. Kuntz. My late father-in-law, Senator, wondered if I
would ever get a job and stop going to school.
[Laughter.]
Mr. Kuntz. I am pleased to report that----
Senator Grassley. Do not interpret any of my questions as
keeping you from getting a job so your father-in-law is happy.
For you, sir, on the living constitutional theory, Judge
Scalia said this--and I am only using this as an offshoot. I am
not asking you what you think about what he said. ``The risk of
assessing evolving standards is that it is all too easy to
believe that evolution has culminated in one's own views.'' So
you can understand why the independence of a Federal judge is
very important.
Do you believe that judges should consider evolving
standards when interpreting the Constitution?
Mr. Kuntz. I believe they should not. I believe the
Constitution is written and it says what it means and it means
what it says. And when it is time to amend the Constitution,
the people of this Nation amend the Constitution, not the non-
elected judges.
Senator Grassley. I think you also answered my second
question, but let me ask it anyway. Do you believe that it is
ever appropriate for a Federal judge to incorporate his or her
own views when interpreting the Constitution?
Mr. Kuntz. Never.
Senator Grassley. If confirmed, what sources will you look
to when interpreting provisions of the Constitution?
Mr. Kuntz. You look to the words of the Constitution. I
have studied at the level of doctoral history constitutional
history, and you look to the words. The Founders battled over
every clause, and it is there for a reason, and that is what
you look to.
Senator Grassley. Thank you.
Mr. Ross, Judge Ross, at the time you were a county
counselor, there was an incident where members of the county
Private Industry Council sent an anonymous fax to members of
the council and the local media criticizing the director of
administration for actions he had taken. One of the
whistleblowers was forced to resign. Both filed suit asserting
their rights under the First and 14th Amendments. You were
quoted by the media stating your belief that neither had a
cause of action. The district and appellate courts did not
agree with you, and the county subsequently passed
whistleblower legislation.
You may not know that I am very active in protecting
whistleblowers, so you know the interest behind my question. So
I want to ask two questions that follow on that.
Well, the first question is divided into two parts. Why did
you think the council whistleblowers had no valid suit?
Judge Ross. Thank you, Senator, for the question. My
initial review of the lawsuits when they were filed was that
they did not state a cause of action. It was purely a legal
analysis of the lawsuits as they were initially filed.
They were later amended. There were additional claims that
were raised. We did file a motion to dismiss that was denied,
and the lawsuits were subsequently settled.
But my initial comments were based solely upon an initial
review of the lawsuits as they were filed.
Senator Grassley. Okay. If confirmed as a Federal District
Judge, what will be your approach to whistleblower suits? Will
whistleblower plaintiffs be treated fairly in your courtroom?
Judge Ross. I know I have had a number of whistleblower
lawsuits since I have been a judge, and I think I have followed
the law and would always follow the law as it applies to a
whistleblower. I think whistleblowers can play a very important
role and do play a very important role. So I would certainly
follow the law as it applies to those kinds of cases.
Senator Grassley. My second question to you is similar to
what my colleague just asked in his first questions to all of
you. You have no experience in the Federal court. What
experience do you have that qualifies you for a Federal
judgeship? How do you plan to make the transition?
Judge Ross. Senator, I have had a broad range of
experience. I started out handling all criminal cases in the
prosecuting attorney's office, and I did that for 11 years,
became the chief trial attorney, handled a broad range of
criminal cases.
As county counselor, which I was for 9 years, I supervised
all the civil litigation for county government. Some of that
litigation was, in fact, Federal litigation. I made these
transitions and then made the transition to becoming a judge. I
think all of those things would assist me in making the
transition if I am fortunate enough to be confirmed.
Senator Grassley. Okay. And my last question, you do not
have to answer if you do not want to, but I want to give you a
chance to respond to an allegation. On December 6, 2010,
Congressman Clay wrote to President Obama and expressed his
strong opposition to your nomination based on how you had
handled the case Kevin Buchek v. Robert Edwards. Specifically,
Congressman Clay urged the President to withdraw your
nomination ``[b]ased on Judge Ross' judicial activism, history
of racial and gender discrimination against black elected
officials and employees of the fire district.'' In his letter
to the President, Congressman Clay attached a letter from a
group of elected officials in Missouri opposing your
nomination.
Judge Ross. Thank you, Senator. I appreciate the
opportunity to address that.
I think that the letter that was written to Congressman
Clay by the other officials contains significant inaccuracies.
This case actually came to our court based on a citizens'
petition that was filed by residents of a fire district in
North St. Louis County. It was filed after the Missouri
Attorney General had filed a lawsuit against the district
alleging that they had violated the open meetings laws. There
was also a scathing audit issued by the Missouri State auditor
citing financial improprieties and a lack of financial controls
by the district.
The citizens group requested a temporary restraining order
and asked that a receivership be appointed to take over the
running of the district. The case went to another judge, and
that judge granted the restraining order. It then went to a
second judge, who denied a motion to dissolve the restraining
order.
When both of those judges were disqualified, the case then
was assigned to my division. I did have a hearing, and after a
hearing I determined that a preliminary injunction was
appropriate. I denied the request for a receivership which
would take over the entire operation of the district. I did
appoint a special master. The special master that I appointed
was a retired Missouri court of appeals judge who happens to be
African American. For 14 months, the special master acted, and
I affirmed many of the special master's recommendations.
To give you an idea of what was happening in the district,
they were holding meetings in violation to open meetings laws,
and at one point one member of the district voted to pay the
former fire chief and an attorney over $700,000 in severance
pay. The attorney, who was going to get a portion of that
money, was one of the people who wrote the letter to
Congressman Clay.
So I think that the letter contains significant
inaccuracies, and at the conclusion of the 14 months that the
court was involved in the district, all of the recommendations
of the State auditor's office were implemented, and there were
financial controls in place and a financial budget where the
district was not spending more money than it was bringing in.
I would also point out that during the course of the
court's involvement, another court removed the chairman of the
board of the fire district, and it then came to me to appoint
the new chairman of the fire standard, and I appointed an
African-American male, and in so doing I maintained an African-
American majority on the board.
So I believe that the letter contains some inaccuracies
that were conveyed to the Congressman.
Senator Grassley. Okay. Now, Mr. Cain, if I only ask you
one question, you are going to think I think you are less
significant than the other four.
Judge Cain. I will not be offended, Senator.
[Laughter.]
Senator Grassley. Along the lines of something that the
Chairman asked you, you have little experience in Federal
court. What experience do you have that qualifies you for a
Federal judgeship? And how do you plan to make the transition?
Judge Cain. Thank you for the question, Senator. Again, as
a State court judge for over 11 years, I have used the South
Carolina Rules of Civil Procedure and the South Carolina Rules
of Evidence in conducting hearings and trials. Those rules are
modeled after the Federal rules.
In addition to that, I have heard many types of matters in
family court relating to marital estates that might involve
such assets as interest in limited liability companies,
corporations of various types.
I have also had criminal experience hearing juvenile cases
with folks charged with felonies and misdemeanors. And prior to
my service on the family court bench, I was in practice for
about 14 years and have worked as a public defender and a
prosecutor and was county attorney for 7 years and represented
clients before various Federal agencies, and clients in
primarily State court but also Federal court as well. So I
believe I would be able to make the transition successfully if
I am fortunate enough to be confirmed.
Thank you.
Senator Grassley. Thanks to all of you, and thank you, Mr.
Chairman.
Senator Coons. Thank you very much, Senator Grassley. Do
you have any further questions?
Senator Grassley. No.
Senator Coons. I do not either, so we will hold the record
of this nomination hearing open for a week in the event that
any members of this Committee who were not able to join us
today wish to submit additional questions to our five nominees.
I want to personally thank our five nominees for being here
today and congratulate them on their nominations. You are truly
qualified. You are dedicated public servants, and I am grateful
for your willingness to step up and continue your service to
our Nation through service on the Federal bench.
This Committee stands in recess.
[Whereupon, at 4 p.m., the Committee was adjourned.]
Questions and answers and submissions follow.]
NOMINATIONS OF STEVE SIX, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE
TENTH CIRCUIT; MARINA GARCIA MARMOLEJO, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS; MICHAEL C. GREEN, NOMINEE TO
BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NEW YORK; WILMA
ANTOINETTE LEWIS, NOMINEE TO BE JUDGE FOR THE DISTRICT COURT OF THE
VIRGIN ISLANDS; MAJOR GENERAL MARILYN A. QUAGLIOTTI, USA (Ret.),
NOMINEE TO BE DEPUTY DIRECTOR FOR SUPPLY REDUCTION, OFFICE OF NATIONAL
DRUG CONTROL POLICY
----------
TUESDAY, MAY 24, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:33 p.m., Room
SD-226, Dirksen Senate Office Building, Senator Amy Klobuchar,
presiding.
Present: Senators Grassley, Cornyn, and Lee.
OPENING STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM
THE STATE OF MINNESOTA
Senator Klobuchar. I am pleased to call this nominations
hearing of the Senate Committee on the Judiciary to order, and
pleased to have our Ranking Member, Senator Grassley, here. I
want to thank Chairman Leahy for allowing me to chair this
hearing. As you know, we're starting on time.
I want to give a warm welcome to all of our nominees. We
also welcome the family and friends that have accompanied all
of you. You will have an opportunity to introduce them shortly.
First, I would like to call upon Senator Cornyn, a member
of this Committee, to introduce Marina Garcia Marmolejo, who is
nominated to be a District Judge for the Southern District of
Texas, and I would also like to welcome the Virgin Islands
delegate, Congresswoman Donna Christensen, to introduce Wilma
Lewis, who is nominated to serve on the U.S. District Court of
the U.S. Virgin Islands. Thank you, Senator Cornyn and
Congresswoman Christensen, for appearing today. Please feel
free to excuse yourself when you're done; I know you have busy
schedules.
Senator Cornyn.
PRESENTATION OF MARINA GARCIA MARMOLEJO NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS PRESENTED BY
HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Well, thank you, Madam Chairman, Senator
Grassley. It is my pleasure to speak on behalf of the
nomination of Marina Marmolejo, who is here with her husband in
the front row, and to support her nomination as U.S. District
Judge for the Southern District of Texas in Laredo.
Ms. Marmolejo applied for this position and was screened by
a bipartisan Federal Judicial Evaluation Committee appointed by
Senator Hutchison and myself. Senator Hutchison and I
interviewed her and recommended her to President Obama, and are
pleased that she comes to this Committee as a consensus
nominee. Based on her broad experience and commitment to public
service, I believe she'll make an outstanding addition to the
Federal bench in Texas.
Born in Nueva Laredo, Mexico and naturalized as a U.S.
citizen, Ms. Marmolejo's professional accomplishments are a
testament to her determination and hard work. After graduating
from the University of the Incarnate Word in my home town of
San Antonio, Ms. Marmolejo went to receive her Master's and law
degree from another alma mater of mine, St. Mary's University
School of Law.
She consistently set the standard throughout her academic
career, completing each degree program with honors and serving
as an associate editor on the St. Mary's Law Journal. Following
law school, she demonstrated a strong commitment to public
service, first as an assistant public defender from 1996 to
1999, where she worked to ensure that the indigent and
vulnerable defendants received their constitutional right to a
fair trial.
In that capacity she appeared in 350 cases before Federal
District Courts in both the Southern and Western Districts of
Texas. Her work as a public defender was so impressive that in
1999 she was recruited to serve as an Assistant U.S. Attorney
for the Southern District. In her role as a Federal prosecutor,
she spent the next 8 years handling over a thousand cases that
brought dangerous criminals to justice, such as human
traffickers and drug smugglers, gun runners, and gang members.
Clearly, Ms. Marmolejo's experience fighting these scourges
will suit her well given the Southern District's proximity to
the increasingly dangerous U.S.-Mexico border.
As a prosecutor, Ms. Marmolejo has also worked to ensure
that our elected officials lived up to the highest ethical
standards, prosecuting multiple public corruption cases. For
her work in one high-profile case she earned the prestigious
Director's Award for her superior performance as an Assistant
U.S. Attorney, one of the highest honors available to career
Federal prosecutors.
She also won the attention of her superiors for her
intricate knowledge of the criminal justice system and her
prosecutorial talents. She was repeatedly recruited by the
Department of Justice's Overseas Prosecutorial Development
Assistance and Training Program to teach trial advocacy to
foreign prosecutors and agents in Colombia and the Dominican
Republic.
In 2007, she went into the private practice of law with the
firm Thompson & Knight in San Antonio. In 2009, she joined
Diamond McCarthy, LLP as of counsel, and became a partner later
that year. She is now a partner in the Reid Collins Tsai law
firm based in Austin.
So you can see from her vast experience and her public
service that Ms. Marmolejo is well qualified. She has also
received widespread applause from the community. For example,
the Laredo LULAC Council has recognized with its Tejano
Achiever's Award, and the Nueva Laredo Rotary Club has
similarly awarded her service to the community.
So while I could continue to offer additional praise for
Ms. Marmolejo's career and her character, the record is already
clear. I believe she will probably serve as a Federal District
Judge, so I would urge my colleagues to join Senator Hutchison
and me in supporting Ms. Marmolejo's well-deserved nomination.
Thank you.
Senator Klobuchar. Thank you very much, Senator Cornyn.
Congresswoman Christensen, I will warn you, you may not be
able to match him for having his nominee rhyme with her place
of residence, Marmolejo of Laredo. It almost rhymes. I kind of
liked it.
Ms. Christensen.
PRESENTATION OF WILMA ANTOINETTE LEWIS, NOMINEE TO BE JUDGE FOR
THE DISTRICT COURT OF THE VIRGIN ISLANDS PRESENTED BY HON.
DONNA M. CHRISTENSEN, A U.S. REPRESENTATIVE FROM THE U.S.
VIRGIN ISLANDS
Representative Christensen. Thank you, Madam Chair and
Ranking Member Grassley, for the opportunity to introduce the
Hon. Assistant Secretary Wilma A. Lewis, President Obama's
nominee to serve as the next District Court Judge in the U.S.
Virgin Islands.
As the daughter of the first native Virgin Islands judge of
our District Court, it is an honor to introduce an exceptional
woman and public servant who, with your confirmation, would
create another judicial milestone, as she would become the
first woman to serve as a Federal judge in the District Court
of the U.S. Virgin Islands.
Assistant Secretary Lewis would bring an extensive, varied,
and broad wealth of experience from both the public and private
sector to the District Court of the U.S. Virgin Islands. We are
so very proud of her record of distinguished service and know
that any number of other Federal judicial districts would have
vied to have her bring her level of expertise to them, and many
would have wanted to have the honor and privilege that I have
to introduce her to you today.
I know her as a devoted daughter of parents who themselves
gave a collective 67 years of service to the Federal
Government, her father Walter Lewis in the U.S. Postal Service,
and her mother Juta Lewis in what was then the U.S. Customs
Service.
We are both active members of the Moravian church that
played an important role in bringing equity and justice to the
enslaved Africans they came to live among back in the early
1700s.
I know that you have her outstanding resume, but she has
served the District of Columbia and our Nation in some of the
most demanding local and Federal positions of government. Her
tenures in those offices are of immense pride to the people of
the U.S. Virgin Islands and I would not be able to go back home
if I did not at least mention some of the more important ones
as I present her to you today.
In 2009, President Obama and Interior Secretary Ken Salazar
called upon Attorney Lewis' vast expertise to serve as the
Assistant Secretary for Lands and Minerals Management at one of
the most challenging times for that agency. She previously
served as Interior's Inspector General, and earlier as an
Associate Solicitor in the General Law Division.
Assistant Secretary Lewis served the U.S. Department of
Justice as the U.S. Attorney for the District of Columbia, as
well as on several key boards, committees, and commissions,
including the Judicial Nomination Commission and the Committee
on Local Rules of the U.S. District Court for the District of
Columbia.
Attorney Lewis has also had significant experience in the
private sector. Madam Chair and Ranking Member, throughout her
life, Wilma A. Lewis has distinguished herself at every turn,
in college, in law school, and in the coveted legal position
she had held and executed with honor, distinction, and
excellence.
She was the valedictorian of her All Saint's Cathedral High
School in 1974, graduated with honors from Swathmore in
Political Science in 1978, and from Harvard Law School in 1981.
She was featured in the 2003 Harvard Law Bulletin as among the
50 female graduates who used their legal education to take them
to extraordinary places, and has been recognized and honored by
many organizations in the Virgin Islands and across the U.S.
mainland.
Although the nominee has spent most of her professional
life on the United States mainland, she has maintained close
and continuous contact with her home through the church,
several community organizations, and of course through her ties
to family and friends. The Virgin Islands Bar Association
unanimously voted her as the Most Qualified and recommended her
highly for this position.
We're asking that this body, in confirming this outstanding
individual, give her the opportunity to do what has always been
her dream: to use all of the experience and skill she has
accumulated over the years of service to serve her beloved
home.
Thank you for the opportunity again to present this
outstanding individual and nominee for the District Court of
the U.S. Virgin Islands.
Senator Klobuchar. Well, thank you, Congresswoman
Christensen. Thank you for joining us today.
I would also like to note that Senators Schumer and
Gillebrand were not able to make it today, but they have
submitted remarks for our nominee, Michael Green. These
statements will be submitted to the record.
[The prepared statements of Senators Schumer and Gillebrand
appear as a submission for the record.]
Senator Klobuchar. I believe that Senator Hutchison is
going to be joining us shortly. Before Senator Grassley gives
an opening statement, I would like to introduce the rest of our
nominees.
Steve Six has been nominated to serve on the U.S. Court of
Appeals for the Tenth Circuit. Currently he is a partner at the
Kansas law firm of Stevens & Brand. He is also a research
scholar with Columbia University Law School's State Attorney
General program. Mr. Six previously served as the Kansas
Attorney General, and he even has experience living in
Minnesota. I knew you would be interested in that, Senator
Grassley. He graduated from Carlton College in Northfield,
Minnesota, before attending the University of Kansas School of
Law.
Michael Green has been nominated to sit on the U.S.
District Court for the Western District of New York. Currently,
the District Attorney for Monroe County, New York, Mr. Green
was previously Assistant District Attorney for Monroe County
and an associate at the Morris & Morris law firm in Rochester,
New York. Mr. Green attended LeMoyne College and received his
J.D. from Western New England College School of Law.
Last, but certainly not least, we have Major General
Marilyn Quagliotti. General Quagliotti has been nominated to be
Deputy Director for Supply Reduction in the Office of National
Drug Control Policy. Wow, that's a long title! She is currently
a management consultant with the Durango Group, and she had a
long and distinguished career in the U.S. Army, serving for
over 30 years. Welcome, General Quagliotti.
Now I'm going to turn it over to Senator Grassley for any
opening remarks he would like to make.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. I extend my welcome to the nominees
appearing before us today. I also welcome their family and
friends, and I know you're proud of your family and friends
that are being nominated for these prestigious positions.
I'm eager to hear testimony and I'll be asking many
questions. I expect the nominees will fully answer my
questions. Too often, nominees appear before us and fail to
give meaningful responses. Unfortunately, a well-worn response
that we get to questions, meant to have questions of substance,
we too often hear, ``I will follow the law, if confirmed''.
That type of response, which sounds coached, even robotic at
times, doesn't really get us very far with understanding the
competence, integrity, and temperament of a particular nominee.
It certainly gives us no insight into the thought process,
legal reasoning skills, or general judicial philosophy of the
nominee.
I am going to insert the rest of my statement in the record
because it's very long. So, I'll yield the floor.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Klobuchar. OK. Thank you.
I will now ask our first nominee, Mr. Steve Six, to come
forward and remain standing and raise your right hand. I'll
administer the oath.
[Whereupon, the witness was duly sworn.]
Senator Klobuchar. Thank you. Have a seat.
Mr. Six, do you want to take a moment to introduce anyone
who is with you here today at this hearing?
STATEMENT OF STEVE SIX, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR
THE TENTH CIRCUIT
Mr. Six. I do. Thank you, Senator Klobuchar, for that kind
introduction, and Senator Grassley, for those welcoming
remarks. Introducing my family who is with me here today
supporting me, I'll start with my wife Betsy. My wife of 15
years. Going in age from the oldest, my daughter Emily Six, Sam
Six, Henry Six, and Will Six. And I'm also fortunate to have my
parents, retired Supreme Court Justice--Kansas Supreme Court
Justice Fred Six here, and my mother, Lillian Six. Thank you
all.
Senator Klobuchar. That's almost six Sixes.
[Laughter.]
Senator Klobuchar. That's very good.
Mr. Six. I do thank the Committee for allowing me to have
this hearing today, and look forward to your questions.
Senator Klobuchar. Well, very, very good. I have a few
questions. I know it sounds like Senator Grassley has some
questions as well.
Could you talk about how you describe your judicial
temperament and why you think you'd make a good judge?
Mr. Six. Well, thank you for that question, Senator. In my
past work experience, I had the honor of serving as a State
judge in our Kansas system and the approach that I took in that
position was to really try to show up every day and work hard
on being fair, to be independent, and to do what sounds kind of
trite, but to impartially apply the law as I saw it to the
facts that appeared before me. That's the judicial philosophy I
practiced for the time I was a State court judge, and what I'd
hope to do if I was fortunate enough to be confirmed to this
position.
Senator Klobuchar. Thank you. And has your father passed
along any ideas to you?
Mr. Six. Well, he has been very influential in my life,
certainly in a lot of ways. I don't know that there's any
particular judicial lessons he's passed on. It's been more
certainly ethics, integrity, how do you present yourself, what
does your word mean when you give it to someone, and really how
to practice law in, I think, a very gentleman-like or
professional fashion.
Senator Klobuchar. So going to the Circuit Court, if you're
confirmed, is a little different than being a District Court
judge or a State Court judge, as you will be working with many
judges, active senior judges. And do you think it's important
to seek out agreement with your colleagues? Is there value to
finding common ground, even if it slightly narrower in scope,
to get a unanimous opinion? What are your views on that?
Mr. Six. Well, I think what I've learned over my legal
career, both in the private sector and public sector, is that
it's important in the law to have a vigorous debate about what
you believe a statute may be or what the cases say about the
law or the precedents. Whether you're doing that with lawyers
in private practice or, as I did when I questioned lawyers when
I was a judge, you can have that vigorous debate but still when
you're done be civil and get along.
And certainly I would anticipate, if I was fortunate enough
to be confirmed, that I would have a vigorous debate with my
colleagues on a panel, respecting other views, listening to
other views. But at the end of the day, you need to make your
own decisions and hold true to what your principles or beliefs
are in the law that you've studied.
Senator Klobuchar. Thank you.
Then last, Mr. Six, as Kansas Attorney General you played a
role in, or commented on, many high-profile matters, like
prosecuting child pornographers. As a former prosecutor, I know
that that is--I believe it's very useful experience. How do you
think that will play into your background as you look to the
Circuit Court judgeship?
Mr. Six. Well, as--as someone with young children, when I
was Attorney General, one of the priorities that soon came to
my attention was the dangerous that young children are facing
online in various ways through all kinds of activity. That
certainly was a priority and, when you're working hard for
something that you think and believe in, it's sort of like not
even going to work in the day because you enjoy the work so
much. You know, that was important work to me in those
positions.
And, you know, I advocated for a lot of things as Attorney
General, but I certainly recognized that there's a difference
in our foundation and form of government in the separation of
powers between someone's role in the executive branch, and
certainly the judicial branch.
Senator Klobuchar. Well, thank you.
And before I turn to Senator Grassley and Senator Lee for
their questions, we're going to take a little break as Senator
Hutchison is here to speak for Ms. Marmolejo of Laredo.
PRESENTATION OF MARINA GARCIA MARMOLEJO, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS, PRESENTED BY
HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Hutchison. Thank you, Madam Chairman, very much. I
appreciate it. I was in another hearing, and when I got word
that you all were ready I raced over. So, thank you, because I
am pleased to be here to introduce Marina Garcia Marmolejo. She
has been nominated to serve as a District Judge for the
Southern District in Laredo, Texas. This is a bench that needs
all hands on deck. It's got a heavy, heavy caseload, and so we
are looking for her confirmation as expeditiously as possible.
She received a Bachelor of Science degree in English at the
University of the Incarnate Word in San Antonio, where she
graduated magna cum laude. She went on to graduate from St.
Mary's University with a Master of Arts degree in International
Relations, and then received her Juris Doctorate from St.
Mary's University School of Law.
She was born in Nueva Laredo, Mexico, but grew up going to
school in Laredo, Texas and learned very early the value of a
strong education. She became a U.S. citizen in 1995. She's
married to Wesley Boyd and has two children, Natalia, age 10,
and Nicolas, age 8. Since completing her studies, she served as
a substitute teacher in Laredo, and after law school served as
an Assistant Federal Public Defender for 3 years, where her
performance was consistently rated as substantially exceeding
expectations.
In 1999, she became an Assistant U.S. Attorney in the
Southern District of Texas, where she worked for 8 years and
handled over 1,000 cases. In 2002, the Department of Justice
awarded her the prestigious Director's Award for superior
performance as Assistant U.S. Attorney for her work with
several public corruption cases.
In 2007, she went with the firm of Thompson & Knight in San
Antonio, and now is a partner at Reed, Collins & Sigh. In 2010,
she was named by Hispanic Business Magazine one of the top 100
influential Hispanic leaders. In 2011, Super Lawyers named her
a Texas Rising Star. She has a solid understanding of the law
and a strong reputation in this South Texas community.
I believe she is well qualified to handle the daily
challenges of being a Federal judge and look forward to working
for her confirmation.
Thank you very much for letting me intervene and show my
support for Ms. Marmolejo.
Senator Klobuchar. Well, thank you very much, Senator
Hutchison. I'm aware of those heavy caseloads in Texas, so I'm
glad that this has moved along and that this nomination has
been made. Appreciate it.
Senator Hutchison. Thank you.
Senator Klobuchar. Senator Grassley.
Senator Grassley. Mr. Six, I understand you have the
support of two Republican Senators from your State. I
congratulate you on that.
I have some questions, as I indicated. When you were
appointed Attorney General in 2008, there was an ongoing
controversy related to the investigation of Dr. Tiller and the
Planned Parenthood Clinic and the allegations that they were
performing illegal, late-term abortions. Your predecessor
closed the investigation and wrote Planned Parenthood a letter,
stating that no charges would be filed. The District Attorney
continued to pursue charges.
According to media reports, you refused to reopen the
investigation even though Judge Anderson testified that there
were discrepancies in the Planned Parenthood medical records,
and that those discrepancies raised ``substantial, factual and
legal issues about their competence within the law''.
My first question: if you were aware of Judge Anderson's
concerns about the medical records prior to making your
decision, why didn't you reopen the investigation?
Mr. Six. Well, thank you for that question, Senator. As you
mentioned, prior to me being appointed Attorney General we had
had a period going back to two prior Attorney Generals where
the issue you were talking about had been vigorously engaged in
a back-and-forth between them. We had an Attorney General that
then resigned. When I was appointed, I stepped into some of
those challenging issues. There certainly weren't any issues
that I sought out, but tried to handle them in the most
professional way that we could.
We had Assistant Attorney Generals who were working on the
case. And like all criminal cases, as the Attorney General, I
have a Criminal Division and prosecutors who handle the cases.
I don't in any case in our Criminal Division tell the
prosecutors what I think they should do or not do. They're
given their ethical duties and responsibilities and instructed
to seek a conviction for charges that they believe evidence
supports. For all the cases we handled in the Attorney
General's Office, that's what I did.
Senator Grassley. Well, where----
Mr. Six. And the issues----
Senator Grassley. Were you aware of Judge Anderson's
concerns prior to making your decision?
Mr. Six. Well, there was never a decision on my part to
pursue or not pursue that case. It simply wasn't something that
was going on. The different----
Senator Grassley. Were you----
Mr. Six. The different cases, including the prosecution of
George Tiller, was going on. That continued after I became
Attorney General and there were various issues that went up to
our Kansas Supreme Court on sensitive medical records. We
continued to bring those to the attention of the Supreme Court
because they had previously entered instructions for us about
how we were to handle those records, and we were very sensitive
about that because the prior Attorney General is before the
disciplinary board of our State now and has been sanctioned in
limited ways by our Supreme Court over various activities
relating to that. So I was very sensitive to always bring it to
the court and let the court make the decisions.
Senator Grassley. Were you ever subject to any pressure or
communication with the Governor of the State or anybody in the
administration not to pursue charges against Planned
Parenthood?
Mr. Six. The Governor at the time I took office was now
Secretary Sebelius, and I never had a discussion with her about
any topics or any cases in the Attorney General's Office in our
Criminal Division. We would occasionally brief her on cases
before the State. We had a lottery case----
Senator Grassley. You've answered my question. That's OK.
Mr. Six. Thank you.
Senator Grassley. While your office refused to continue the
investigation of Planned Parenthood, Mr. Phil Kline, who was
District Attorney and former Attorney General, continued the
case. Did you ever seek to impede his prosecution of Planned
Parenthood?
Mr. Six. Again, when I took office this litigation had been
going on for some period of time. The judge you mentioned had
previously testified in a hearing overseen by our Kansas
Supreme Court before I became Attorney General. The case you've
just referenced, the judge received a subpoena to appear in
District Court and testify. When any judge in the State is
subpoenaed or receives--is sued, they contact the Attorney
General's Office for representation.
In this case, that is what happened. Given the sensitive
nature of the case I thought it would be best to apply outside
counsel outside of the office to him. He, under our procedure,
got his own attorney and the matter was referred again to our
Kansas Supreme Court. The Kansas Supreme Court then issued
orders about what the judge should and shouldn't do, and that
was the appropriate forum, I thought, for how it should be
handled.
Senator Grassley. Is that your answer then also to why did
you continue to have legal action to compel Mr. Kline to return
all documents that he retained from the investigation in the
Attorney General's Office?
Mr. Six. Again, the medical records, these private patient
medical records, were the subject of an order by the Kansas
Supreme Court about how they were supposed to be handled. When
Mr. Kline left office, he took the entire file and the records
with him on the morning he left office. Then another Attorney
General, Attorney General Morrison, went into office and he
started a case to get those materials returned. That started
sometime in January of 2007.
I became Attorney General in February of 200--or January
30, 2008. And at the time I became Attorney General, my name
was substituted into the caption where the previous Attorney
General's name had been. The court ordered that the lawyers
show up for oral argument. An Assistant Attorney General from
my office showed up and argued the case and again said that
these patient records should be redacted to remove identifying
information and they should be managed in a secure law
enforcement way and put the matter before the Supreme Court.
Senator Grassley. The case brought against Planned
Parenthood relied in part on Kansas' late-term abortion law.
Recently Kansas amended their abortion law to bar abortions at
22 weeks gestation, except to save the mother's life. Do you
believe that the Kansas law is consistent with the Supreme
Court's decision of Planned Parenthood v. Casey, where the
court said that abortion restriction cannot impose ``an undue
burden''1A?
Mr. Six. You know, when I was Attorney General I did not
evaluate that issue. And since I've gone into private practice
I haven't had any similar issues like that come out and I
haven't read the Kansas statute. I simply haven't studied it,
Senator.
Senator Grassley. I think I'll put the rest of the
questions for answer in writing.
[The questions appear under questions and answers.]
Senator Klobuchar. OK. Very good. Thank you.
Senator Lee.
Senator Lee. Thank you very much, Mr. Six, for joining us.
I have a special interest in the Tenth Circuit, in part because
it includes my State. So, thank you for being with us today.
While you were serving as Attorney General of Kansas, 13
States originally filed a lawsuit challenging the
constitutionality of the Affordable Care Act, also known as
Obama Care, insofar as it relates to the individual mandate
aspect of that. It's my understanding that Kansas, after you
left office, later became one of the now 26 States. Some of the
original States included Florida, Michigan, Pennsylvania,
Washington, a whole host of others, including Utah. Kansas has
since joined then. A total of 60--26 States have joined in on
this, a majority of them--a majority of all States.
But when the question was presented to you as to whether or
not you wanted to sign documents getting your State involved in
it, you were quoted as saying ``arguments have been advanced
that the law's requirement that all individuals purchase health
insurance is unconstitutional. Under current U.S. Supreme Court
precedent, such an argument is highly unlikely to succeed''.
Now, that litigation is still ongoing. We've had a couple of
courts issue opinions going a couple of different ways. But
needless to say, it has proven to be a complex issue, certainly
not a straight up-or-down issue.
I was wondering if you could just talk to me briefly about
kind of what you had in mind, what precedent you were relying
on in saying that this is highly unlikely to succeed and that
it would be essentially a waste of taxpayer revenue to become
involved in a lawsuit.
Mr. Six. Yes. Thank you, Senator Lee. What I did with all
issues that appeared in the Attorney General's Office, was they
would come in and we'd try to apply the best analysis we could.
I don't know when in the course of time I made that statement,
but, you know, I assigned various claims, the six or so claims
under the individual or employer mandate to lawyers in the
office. They researched them. They returned reports that we
then reviewed. And my opinion after that review was that the
great majority of the claims looked unlikely to succeed. I
think that's proven true perhaps through all the courts, that
maybe four of the claims have uniformly been dismissed.
The other thing I did then on the individual mandate, which
I think was the most challenging aspect, was we reviewed it as
to the State Attorney General, because that's the decision we'd
been making. Our analysis was that under the standing cases,
that the State Attorney General didn't have the authority to
pursue the individual mandate claim. And for those reasons, I
thought that our State, you know, given the limitations and the
challenges we were facing, had other cases and things that we
were struggling to meet the demands of, and for the resources
that would be required to get involved in that. You know, we
decided not to, and ultimately my view was it would go to an
appellate court and the Supreme Court and that would apply to
our State anyway.
Senator Lee. So it was your conclusion that the State would
lack Article 3 standing or prudential standing in order to
bring that?
Mr. Six. You know, I did not review what the conclusion was
before appearing here today. I can just recall, as we analyzed
it, as it applied to the Attorney General bringing that claim,
we didn't think we had standing.
Senator Lee. OK. But your recollection is that your
analysis was based on standing rather than on the merits
position on the substantive legal outcome?
Mr. Six. The standing issue is what we felt like would be
determinative on the Attorney General bringing that. We knew
that in that case there were individual plaintiffs that may be
advancing the claim, and so if it was going to succeed it would
apply to our State. And, you know, the final reason really was
that our--under our Kansas statutes, the House or the Senate
can pass a resolution to have the Attorney General file a
lawsuit and the House had that resolution and they voted it
down. And certainly we didn't want to be in a position where we
were advancing a case that the House and the people at least
voted down as far as pursuing.
Senator Lee. Sure. Sure. But that wouldn't affect your
standing analysis.
Mr. Six. No, not on a legal----
Senator Lee. I mean,--has standing or he doesn't.
Mr. Six. Correct.
Senator Lee. It seems odd to me that an Attorney General
could be thought not to have standing to challenge a law that
requires substantial investment on the part of the State to set
up certain infrastructure with all kinds of mandates that are
not necessarily funded, at least not directly to the States.
But I understand that to be your position.
Now, in response to the argument that the unfunded mandate
requiring the States to expand the eligibility standards for
Medicaid, or else, you know, in the alternative, lose risking--
risk losing Federal funds. In response to an argument that that
might violate the State's rights, the State's Tenth Amendment
rights, you argued, as I understand it, that this was a policy
argument, not a constitutional argument. How can you defend
that statement in light of Prince v. United States and the
acknowledge that the Federal Government cannot commandeer State
executive or legislative machinery in order to adopt or
implement a Federal legislative or administrative program?
Mr. Six. Well, I don't recall the context. I don't dispute
that I made that statement and that it's accurate. I don't
recall the context of what I said at that time. And
unfortunately, Senator, I apologize, but I don't know what the
Prince case--I have not reviewed that.
Senator Lee. OK. But if--in light of that precedent, let's
just--just take for a moment--I understand that you haven't had
an opportunity to review Prince, but that would make it a
constitutional argument as opposed to a policy argument, would
it not?
Mr. Six. I would say that all of the arguments should be
legal arguments and would be decided in a court of law as
opposed to a policy. So that might have just been a loose
statement on my part. As you know, when you are in the time
period we're talking about, I imagine that when I was
campaigning for Attorney General, and you make a lot of
statements all day all over the State, I would agree that it is
a legal argument on each of the claims that have been advanced
in the Florida lawsuit as to whether they are constitutional or
not constitutional, and those would not be policy arguments.
Senator Lee. All right. I see my time has expired. Just as
I would do if I were arguing before the Tenth Circuit, I'll
yield the floor.
Mr. Six. Thank you, Senator.
Senator Grassley. I have one more.
Senator Klobuchar. OK. One more thing, Senator Grassley.
Then I had a few follow-ups.
Senator Grassley. I'm going to--even though I asked you a
lot of questions about the Planned Parenthood case, I would ask
you to submit a full statement regarding your actions and
involvement with regard to that case. Then as a result of that,
I may have follow-up questions after I review your statement.
Would you agree to do that?
Mr. Six. Certainly, Senator.
Senator Grassley. Thank you.
Senator Klobuchar. Thank you. I'm sure I was listening to
your exchange with Senator Lee, and I would hope he would put
that question in writing so you'd have a chance to look at the
case and expand on that more after you have a chance to look at
what you said and what the case said.
Mr. Six. Thank you.
Senator Klobuchar. All right. Very good.
And I just want to confirm here, both Senator Moran and
Senator Roberts, two Republican Senators, are supporting you
for this position?
Mr. Six. You know, I have had a conversation with Senator
Moran and I wouldn't presume to----
Senator Klobuchar. Well, they've allowed your nomination to
go forward. Let me put it that way.
Mr. Six. I am here today.
Senator Klobuchar. OK. Very good.
Senator Lee.
Senator Lee. Do we have time for one more round of
questions? I just wanted to follow up on a couple of issues.
Senator Klobuchar. Sure. I'm actually asking some now.
Senator Lee. Oh. Oh, great. OK.
Senator Klobuchar. I'm doing my second round and then that
would be great.
Senator Lee. Then I will follow you. OK. I just wanted to
make sure.
Senator Klobuchar. OK. Excellent. Very good.
And then the--I wanted to follow up a little bit on this--
the questions involving your role as Attorney General.
Obviously you were Attorney General representing the State of
Kansas in litigation and other matters. Could you describe how
you see the role of Attorney General different than the role of
a judge, a Circuit Judge?
Mr. Six. Well, thank you for that question, Senator.
Certainly as Attorney General, you are an advocate often for
positions, whether they relate to public safety or other types
of activities the office may pursue. At the same time, you're
also the legal representative of the State and you defend
statutes passed by the State legislature as to their
constitutionality. You certainly do that whether you believe
it's the right view or the wrong view, or a good statute or a
bad statute. It's just your role to support what the
legislature has done. So we did that in various ways and
represented the State, and certainly if I were fortunate enough
to be confirmed, I understand that under our separation of
powers, as a judge you're in a completely different role.
Senator Klobuchar. Right.
And with regard to the discussion on the patient protection
Affordable Care Act, in that role you looked at the law and
made a legal analysis. Is that right?
Mr. Six. Not only that, I assigned it to our Assistant
Attorney Generals, experts in various areas, and had them
submit reports back to me. Then we met and talked about that.
The conclusion not just of me but the research attorneys, the
four or five of them in the office that were part of the team
and were attorneys that were there prior to my becoming
Attorney General, supported the view that I had in the
discussion with Senator Lee.
Senator Klobuchar. And it sounds like the--just looking at
the numbers, the States were basically split on this, whether
to get involved in this suit or not. Is that right?
Mr. Six. Well, it's----
Senator Klobuchar. Or this appeal.
Mr. Six. It appears to be a bit of a rolling boulder
gaining some speed, so there are more on now than at the time
we made our decision.
Senator Klobuchar. OK. Very good.
And the--and you also were involved and you wrote a letter
objecting to that Nebraksa compromise. Is that correct?
Mr. Six. That was shortly before the bill was passed. There
was the Cornhusker kickback, or the Nebraska compromise, what
they were calling it. Essentially as I understood it, and it
was a----
Senator Klobuchar. I suppose you said we have more corn in
Kansas.
Mr. Six. You know, I don't know if we do or not. But
certainly the view of the people in Kansas was that they
shouldn't be treated any differently or disfavorably from
perhaps the folks in Nebraska. It was a complicated act and a
lot of pages. From what we could gather, that was one of the
potential results. I wrote a letter to the Congress suggesting
that perhaps we shouldn't proceed that way.
Mr. Six. And just to clarify the Tiller questions that
Senator Grassley had asked, that in fact your office actually
prosecuted Tiller on misdemeanor charges. Is that right?
Mr. Six. That's correct. When I took over as Attorney
General I didn't go back through every case in the office and
interject personal opinions into them. We had qualified
prosecutors who were pursuing them. The cases that Senator
Grassley discussed with me and the case against Dr. Tiller, I
took over, and the cases continued with the Assistant Attorney
Generals pursuing them, applying their ethical duties as
prosecutors, and handling tough cases. There wasn't anybody in
the office that would have chose to do that, but when it's your
job as a prosecutor that's what you do.
Senator Klobuchar. And then just to clarify for the record,
Dr. Tiller was the doctor that was killed during church. Is
that correct?
Mr. Six. That's correct.
Senator Klobuchar. Thank you very much.
Senator Lee, you had more questions to ask?
Senator Lee. Thank you very much.
I just wanted to follow up on our previous line of
questioning. I noticed that on October 24, 2010, in a local
paper in your State, you noted an explanation for your analysis
that really wasn't related to the lawsuit, it was related to
the constitutionality of the Affordable Care Act generally,
saying, ``Following a thorough legal analysis I determined that
there were no constitutional defects with the new health care
law'', which is different than just saying there's no standing
problem.
So in light of that, I want to delve into some of those
issues for a minute if we could, dealing with the individual
mandate. Would you agree, first of all, that James Madison got
it right when he said in Federalist #45 that the powers of the
Federal Government are few and defined, while those reserved to
the States are numerous and indefinite. Do you agree with that
general principle?
Mr. Six. I would agree with that. I believe the Tenth
Amendment supports that.
Senator Lee. OK. And in light of that, if in fact the
powers of the Federal Government are few and defined, then
there does have to be some limit on Federal power.
Now, if Congress can wield the power necessary to tell
individual Americans, individual Americans living within some
State, whether it's Utah, or Kansas, or some other State, if
Congress has the power to say to such a person, you must go out
and you must buy a specific product, not just any product, but
health insurance, the kind of health insurance that we in our
infinite wisdom tell you that you must buy.
Isn't there a real slippery slope there in the sense that
if we can do that and if we can then tell people they've got to
buy that or else pay a penalty because it's good for their own
health, what would then stop us from telling people that they
need to go out and buy two servings of green, leafy vegetables
every single day and eat those so that they will be healthy?
Couldn't we do that?
Mr. Six. Well, I understand the principle you're talking
about and I think the Supreme Court, in the United States v.
Lopez and United States v. Morrison cases, talked about the
limits that you've just articulated. And I certainly would
follow those precedents and that guidance. I think it's
difficult of course to decide cases in the hypothetical. I
think requiring somebody, just thinking about it as you
presented it, to ingest something probably raising some
substantive due process arguments that may not exist to having
to buy something.
But I certainly understand the concept you're talking
about, and if presented with that I would try to apply
certainly the guidance that the Supreme Court has, and
hopefully very soon maybe some analogous guidance that may come
out of the Fourth Circuit, or certainly from the Supreme Court
when they get this issue.
Senator Lee. Well, and in fairness if the hypothetical
statute we were addressing were one just requiring you to
ingest it, in addition to any substantive due process problems
that might present, that also would be something regulating
non-economic activity, eating, as opposed to actually
purchasing health insurance.
But couldn't we change that simply by saying you must
purchase? In other words, you must take the first $200 a month
out of your paycheck and buy two servings of green, leafy
vegetables. We're not going to enforce it to make sure you
actually eat it, but you have to buy it. How do you distinguish
that from the individual mandate in the Affordable Care Act?
Mr. Six. Well, I think it is not something that I have
analyzed approaching for today and the hypothetical you have
referenced. It certainly is, I think, a similar analysis.
Senator Lee. And if there are in fact limits on Federal
authority, they would certainly have been breached by the time
we get to the point of telling people they have to buy $200 of
green, leafy vegetables every month.
Mr. Six. That seems like an example that perhaps, if you
just polled the room here, most people would agree with, I'd
say.
Senator Lee. OK. And would they be right?
Mr. Six. Again, it's hard to decide things in advance in a
specific way or commit to what I would rule if that case would
appear before the court. But I certainly hear what you're
saying and it has a very solid sound to it.
Senator Lee. OK. Thank you.
Thank you very much.
Senator Klobuchar. Anything else?
[No response].
Senator Klobuchar. Well, thank you very much, Mr. Six.
Mr. Six. Thank you.
Senator Klobuchar. I see one of your sons is yawning. I
won't say which one.
[Laughter.]
Senator Klobuchar. But I thank you for appearing before us
today. We look forward to hearing from you again. The record
will stay open for any additional questions for 1 week. Thank
you very much.
Mr. Six. I appreciate the Committee's time. Thank you.
[The biographical information follows.]
Senator Klobuchar. Very good.
Now, does our next panel want to come up? I already
introduced all of you. If you could raise your right hand, will
you please stand to be sworn.
[Whereupon, the witnesses were duly sworn.]
Senator Klobuchar. Very good. Thank you, everyone.
You all have interesting and good backgrounds. I think
we'll start. We'd love to have you introduce the people who are
here with you today. Now that the Six's have cleared out, there
are some empty seats behind you. Everyone that doesn't have a
seat is welcome to move up. Here we go. Let's get Ms.
Marmolejo's family. I just love saying your name, as you can
tell. There we go. OK. Very good.
Ms. Marmolejo, do you want to begin? Let's get everyone
seated here. There we go. Do you want to begin and introduce
your family?
STATEMENT OF MARINA GARCIA MARMOLEJO, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
Ms. Marmolejo. Yes. Thank you, Senator. First of all, I
would like to say thank you for the opportunity and the
privilege of being here today and for your consideration of my
nomination.
I would like to begin by thanking our President, Barack
Obama, for this nomination and this incredible honor. I would
like to thank Congressman Henry Cuellar and his staff for their
unconditional and unwavering support. Clearly, I would not be
here today if it wasn't for their support and that of the Texas
Democratic delegation.
I would like to convey a similar sentiment of gratitude to
both of my Texas Senators who are here today. They, too, have
given me their bipartisan support from the very beginning of
this process and I am very grateful for them. I also thank them
for such a kind and generous introduction today.
And now if I may, I'm pleased and honored to introduced all
of my family members. I've got my husband here today, Wesley
Boyd, and our two children, Natalia, who is 10 years old, and
Nicolas, who is 8 years old. I am blessed to have both of my
parents here, Abraham and Marina Garcia, my aunts Drs. Martha
and Gloria Marmolejo, my sister Sarah Santos, her husband
Frank, and my two-year-old nephew Frankie, my sister Maria
Aurora Garcia, her husband Mark McPherson, and their two
children, Ava and Levi. And I believe Levi's out in the crying
room because he's only 6 months old. My brother Abraham and his
wife Melissa could not join us today, but I know that they're
watching the webcast and so I salute them today.
I also have my cousin Anna Garcia with me here today, and
two dear friends, Brigadier General Dixie Morrow, who was
confirmed during the 111th Congress, and my friend Janice
Ayala.
And finally, I would be remiss if I didn't thank some of my
friends at home who are watching this webcast who have been
incredibly supportive throughout this entire process: Michael
McCromm, Ron Adder, Marylou Castillo, Don DeGabriel, Doris
Morrow; and my friends at Thompson & Knight: Debbie Alsip, Jim
Kowser, John Martin, Richard Roper, and others. Thank you so
much.
Senator Klobuchar. Well, thank you. And we welcome your
extended family here.
Ms. Marmolejo. Thank you, Senator.
Senator Klobuchar. So we're very glad that you're all here.
Mr. Green.
[The biographical information follows.]
STATEMENT OF MICHAEL C. GREEN, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF NEW YORK
Mr. Green. Thank you. I would also like to start by
thanking the President for the honor of this nomination. I'd
like to thank Senator Schumer for recommending me and for his
support, and I'd like to thank his staff for all the work that
they've done on my behalf. I would like to thank you, Senator,
and all of the members of this Committee and Senator Grassley
for providing me the opportunity to have this hearing. I would
like to also thank Senator Gillebrand for her support
throughout this process.
Just briefly, if I can introduce my family and some friends
here with me. I have my wife Karen here with me, my daughter
Victoria, who's a junior at Pittsford-Menden High School. My
older daughter Megan could not be with us; she's studying
abroad in Spain right now and I believe watching on the
webcast.
I also have my parents, George and Carol Green with us
today. I have a good friend, Mike Donoghue, who's here, and
another good friend, Sarah Clark, who's also on Senator
Gillebrand's staff, and a long-time assistant, my long-time
assistant and friend, Karen Farsace, who's here.
I would also like to acknowledge many special friends at
home who I believe are watching. I'd like to acknowledge many
family members who couldn't be here who are watching. And
finally, I would like to acknowledge my staff at the Monroe
County District Attorney's Office. It's just an outstanding
group of public servants. I want to thank them and acknowledge
them as well.
Senator Klobuchar. Well, thank you very much, Mr. Green. We
welcome your friends and family, and everyone watching via
webcast.
Ms. Lewis, thank you for being here. You had a nice
introduction from Congresswoman Christensen.
[The biographical information follows.]
STATEMENT OF WILMA ANTIONETTE LEWIS, NOMINEE TO BE JUDGE FOR
THE DISTRICT COURT OF THE VIRGIN ISLANDS
Ms. Lewis. Yes, indeed I did. And I would like to thank
Congresswoman Christensen for that wonderful introduction.
First, though, I will start by thanking President Obama for
the honor of this nomination. If I'm confirmed by the Senate,
it would be a great privilege for me to have the opportunity to
serve in the Virgin Islands, the place that I am always proud
to call home. I would also like to thank this Committee for
conducting the hearing and for considering my nomination, thank
you; Madam Chair, for presiding today; and Senator Grassley,
for your presence here as well.
I also would like to thank my current boss, Ken Salazar,
for his support throughout the process. He's been a great
leader, a wonderful boss, and he has given me his complete
support during the course of this process and I would like to
thank him for that.
I do have some family members and friends here whom I'd
like to introduce. I will start with my immediate family, and
first among those is my mother, Juta Lewis, who's sitting
behind me, as Congresswoman Christensen mentioned, a former
Customs Official, the Assistant District Director of Customs to
the Virgin Islands, retiring after 30 years of service.
I would like to acknowledge as well and recognize my late
father who's not here with us physically, but I know is here
with us in spirit and I'm sure is smiling and is very proud
today. It is my mom and my dad to whom I will be eternally
grateful for the person whom I have become, because it is their
example, it is their love, their support that has made me the
person who I am today and I'm very pleased that my mother is
here in person and my dad is here in spirit.
I will continue with my brother, Warren Lewis, who is also
a public servant with some 37 years under his belt. He's
currently the executive officer at Interpol, and previously
served with the former Immigration and Naturalization Service
in a number of capacities, including as Assistant Regional
Commissioner and as District Director of two different
jurisdictions.
He's here as well with his wife and my sister-in-law, Jean
Lewis, recently retired from the Internal Revenue Service after
some 34 years of government service, and my nephew, Aaron
Lewis, who will be a senior this year at St. Mary's College of
Maryland. He's a scholar/athlete, I'm proud to say, on the
honor roll, on the dean's list there, and also quite the soccer
player, having returned last night from Puerto Rico after
helping the U.S. Virgin Islands National Soccer team secure a
victory in Puerto Rico. So I'm pleased that he is back today.
We have some close friends of the family: Leslie Turner,
who is the chief legal officer at Coca-Cola, a former colleague
and personal friend; Reed Raymond, who is the vice president
and administrative officer for the Federal Reserve Bank of
Philadelphia. Reed Raymond, another close personal family
friend. And also Hon. Thomas Motley, a former colleague of mine
and current Superior Court judge here in the District of
Columbia.
There are a number of other people in the audience who are
supporters. I would like to thank some members of my church who
are here today, Faith Moravian Church of the Nation's Capital,
who always surround me with a blanket of love and support, and
they continue to do so today by their presence here, as well as
on the webcast where I know some are watching.
I have some other personal friends here as well, and also
some colleagues from the Department of Interior, in particular
the corridor, the Assistant Secretary's corridor. They are here
as well. They are tremendous colleagues, hardworking public
servants, and I thank them for their support. Thank you very
much.
Senator Klobuchar. Very good. Thank you.
And then, General Quagliotti.
[The biographical information follows.]
STATEMENT OF MAJOR GENERAL MARILYN A. QUAGLIOTTI, USA (Ret.],
NOMINEE TO BE DEPUTY DIRECTOR FOR SUPPLY REDUCTION, OFFICE OF
NATIONAL DRUG CONTROL POLICY
Major Quagliotti. Thank you, Senator and Ranking Member
Grassley. It's an honor to be here today as President Obama's
nominee for Deputy Director for supply reduction at the Office
of National Drug Control Policy.
I have only one person to introduce, my husband of 30
years, Greg Quagliotti. He's the guy sitting back there with
the 82nd Airborne Division pin on today.
And I would like to acknowledge the many friends around the
world who sent notes and well wishes and who wanted to be here
today, but could not because they remain on active duty.
Thank you.
Senator Klobuchar. Very good. Thank you very much. Thank
you, all of you.
I'm going to turn it over to Senator Grassley to first ask
some questions.
Senator Grassley. Mr. Green, have you ever tried a case in
Federal court? Have you ever appeared in Federal court?
Mr. Green. No, I've not tried a case in Federal court.
Senator Grassley. Your Senate questionnaire also states
that less than 1 percent of your practice has been in civil
proceedings. How are you prepared to handle civil matters in
Federal court?
Mr. Green. The civil work that I did, Senator, was with
Morris & Morris prior to joining the District Attorney's
Office. For the last 24 years I have done extensively--or
exclusively criminal work in the District Attorney's Office. I
think that certainly it will be a transition that I will have
to make, but I've proven throughout the course of my career
that I can make transitions and I've transitioned into
different areas of law.
For example, when New York State enacted the capital
statute in 1995, I had to make the transition. I was the person
designated to get up to speed on capital prosecutions, lead the
office, and in fact wound up teaching attorneys around the
State how to prosecute capital cases. So this will clearly be a
transition, but I think my record shows that given my work
ethic and given my ability, I'll be able to make that
transition.
Senator Grassley. A minority of the ABA Standing Committee
found you Not Qualified for the position. Tell the Committee,
please, about your background and experience that make you
qualified to sit as a Federal District Court Judge.
Mr. Green. Certainly. I started my career working at Morris
& Morris, doing mainly plaintiffs' personal injury work and
real estate work. It was a very short period of time that I was
there. I joined the District Attorney's Office, and for the
last 24 years have been doing almost exclusively criminal
litigation. I've tried about 110 felony cases. In addition to
that, I've tried hundreds of misdemeanor cases. I continue to
try cases. I've been the District Attorney for the last 8 years
and have continued to try the major high-profile cases in our
office during that time.
I've spent the bulk of my 24 years as an attorney in court,
trying major cases, litigating. I think that that experience--
through that experience I know what it takes to be a good judge
in a case. I know the difference a good judge can make. I've
had the opportunity to see the qualities that judges exhibit
that help make sure that justice is done in particular cases. I
think that litigation experience will clearly help me make the
transition.
I think the other thing that will help me make the
transition is, as a prosecutor, I'm not just an advocate.
Clearly I am an advocate and that's different than the role of
a judge, but I'm also tasked with the responsibility of seeking
justice. And for the last 24 years, I've done that. While the
work that I do seeking convictions may get more publicity,
there are many occasions when doing justice requires me or my
assistants to dismiss cases or make decisions not to bring
charges because that's just. And I think that that experience
will also help me make the transition.
Senator Grassley. You served as a member of the New York
Commission on Sentencing Reform. In a New York Law Journal
article you were cited as supporting the proposition that non-
violent, drug-addicted offenders should be sent into treatment
instead of prison, so long as it does not jeopardize humans'
public safety. Would you please explain this idea to the
Committee?
Mr. Green. Certainly. I did serve as a member of the
Sentencing Reform Commission. I was one of 11 members. There
was some very vigorous debate on the commission with regard to
where New York should go with their sentences and with their
legislation, particularly in the area of the drug legislation.
I tried to advocate for positions that I felt struck an
appropriate balance between providing treatment for people in
the criminal justice system that needed treatment, but also
making sure that it was done in a way that did not jeopardize
public safety. There were some parts of the Sentencing
Commission's recommendations that I agreed with and I felt
struck that balance appropriately. There were other parts that
I disagreed with and felt that they did not strike that balance
and that they did not adequately provide for public safety.
Senator Grassley. As a prosecutor, what has been your
record on prosecuting non-violent drug offenders, particularly
focusing on those charged with use or possession as opposed to
distribution?
Mr. Green. I think the first thing I would say is that
sometimes I think it's a misnomer to say ``non-violent'' drug
crimes because I think if you just look at the crime itself and
the label that you put on it, it doesn't tell the whole story.
I think that as a prosecutor, you have to look behind each case
and look at the person you're dealing with, look at the record,
and try and figure out if this is someone who is a user who's
never engaged in violence before, is not posing a risk to the
community as opposed to, is this someone who is involved in,
for example, gang activity, drug sales.
Even if the charge they're arrested for is a possession
charge, you know, are they someone who poses a significant
danger to the community? That's what I've tried to do as a
prosecutor, and on occasions where I feel with drug possession
cases, that we have someone who can safely be put into drug
treatment without jeopardizing the community, I've certainly
supported that position at times. In other cases where I felt
that we had an individual with charges pending who posed a
significant danger to the community, I've advocated that that
person be incarcerated to protect the community.
Senator Grassley. My last question. The previous New York
Journal that I referred to quoted you as stating that ``both
prosecutors and judges should play a meaningful role in who
gets placed into treatment''. You're a board member of Huther-
Doyle Memorial Institute, a not-for-profit agency that provides
addiction treatment and recovery services to drug and alcohol
addicts.
Do you see any conflict of interest with your current role
as District Attorney where you'll recommend treatment in your
position as a board member for the institute, an institution
providing treatment services, and presumably receiving payment
for those services?
Mr. Green. I do not see any conflict. If there's a
particular issue that came up that I felt posed a conflict I
would recuse myself.
In terms of the article that you referenced, maybe you can
rephrase that part of the question. I'm sorry, I got focused on
the Huther & Doyle part.
Senator Grassley. I will state the whole question again. Do
you see any conflict of interest with your current role as
District Attorney where you recommend treatment in your
position as board member for the institute, an institution
which provides treatment service and presumably receiving
payments for those services?
Mr. Green. First of all, our office is not involved in
terms of making payments. We certainly have a role in
recommending or opposing someone being put into treatment. As
to the first part of your question where you pointed out that
in some instances I felt that prosecutors and judges should
have a meaningful role, one of the things that I advocated for
throughout the Sentencing Commission proceedings was on what I
felt were serious drug felony cases, people who in my community
were involved in drug sales, many times were gang members,
people that posed a risk to the community.
I felt that on those types of cases, prosecutors shouldn't
be cut out of the equation. I felt prosecutors had some
information, sometimes information that judges don't have, and
sometimes information that's very difficult to share on the
record. And in certain instances I felt members of the
Sentencing Commission were trying to push legislation that
would cut prosecutors out of that decisionmaking process and I
was opposed to that.
As to the Huther-Doyle part of the question, no, I don't
see any conflict. I see my role on the board, and my role on
the board has been where I can, to help make sure that Huther-
Doyle, and frankly other treatment agencies, are aware of the
needs of the criminal justice system and are in a position to
respond to the needs of the criminal justice system when judges
see fit to refer people.
Senator Grassley. Thank you, Mr. Green.
Thank you, Madam Chairman.
Senator Klobuchar. Thank you very much, Senator Grassley.
And just to confirm, Mr. Green, the majority of the ABA found
you qualified for this position. Is that right?
Mr. Green. That's correct. Thank you, Senator.
Senator Klobuchar. OK. Very good.
And I just thought I'd ask a general experience--a general
question of all of you. I just was noting that you all have
decades of experience under your belt. That's why I said the
word ``experience''. And I thought if you could just each go,
the first three of you, go through your--what you describe as
your judicial temperament and what you think would make you a
good judge.
Ms. Marmolejo.
Ms. Marmolejo. Thank you, Senator, for the question. Thank
you for the question, Senator. I have been fortunate in that I
have grown up in the Federal system. My first job out of law
school was working as an assistant Federal public defender for
a couple of years, and then I worked as a Federal prosecutor
for over 8 years. And I believe that during this time my
colleagues would describe me as a person who is not only fair,
but who possesses a calm and even-tempered demeanor.
And I believe the judges should, in fact, possess a calm
and even-tempered demeanor, and that's what I would hope to
bring to the bench, along with a strong commitment to follow
the law in every case and a commitment to approach each case
with an open mind, without pre-judging any situation, and to
truly give litigants their day in court.
Senator Klobuchar. Very good.
Mr. Green.
Mr. Green. Thank you, Senator. As District Attorney, I
think I find myself every day in many pressure-packed
situations and I always pride myself on the fact that I am calm
as I do my job, I reason through decisions, and I think people
respect the work that I do. As a judge, I think that those
qualities would serve me well. I think it's important that a
judge sets the tone for his or her courtroom, and I would do
that through my work ethic, through the quality of my work, and
through the dignity and the respect that I show for all parties
that appear in my courtroom.
In terms of the work itself, I would be the type of judge
who, in finding the facts, would make sure to convey to all of
the litigants that I understand their position. Once I found
the facts, I would apply the law as it is, whether it's from
the Constitution, or statutes, or Supreme Court, or Second
Circuit cases that I would be bound to follow, and I would try
and render decisions promptly as possible because I believe all
parties, particularly parties in Federal court, are entitled to
justice that's not only appropriate, but also prompt.
Senator Klobuchar. Very good. Thank you.
And Ms. Lewis.
Ms. Lewis. Thank you, Senator. I believe during the course
of my professional career I've had the opportunity to perform
in a number of different roles, as advocate, as impartial
decisionmaker, and in particular as the Inspector General of
the Department of the Interior, and as the U.S. Attorney, as
counselor, in an in-house capacity of the Department of the
Interior, indeed, as teacher as I served as an adjunct faculty
member of the George Washington University Law School in terms
of--with respect to trial advocacy matters.
Throughout the course of that career I believe I have
developed the kinds of skills, and indeed the temperament, that
would hold me in good stead as a Federal District Judge. I
believe I have a very strong commitment to public service, I
think as demonstrated by my record. I believe I would be fair,
but firm. I listen carefully to all different perspectives
before making decisions, and indeed like to hear the opposite
perspective to the direction that I am inclined to go.
So I believe I would have that as an attribute as well as a
judge. I believe I would set a tone for the courtroom. I would
strive to do that, in which everyone has the opportunity, all
the litigants have their day in court, and to have a full and
fair opportunity to be heard. I would be strictly adhering to
the rule of law and the precedent, and I think throughout my
career I have demonstrated that as well. So I think those
skills, those qualities would be the ones that I would seek to
bring to the bench.
Senator Klobuchar. Thank you very much.
General Quagliotti, just a few questions of you. Could you
describe what your job is for everyone that you are being
nominated for, the Director for Supply Reduction? I can guess,
but can you describe it for all of us?
General Quagliotti. Yes, Senator. I'll be happy to. In the
Office of National Drug Control Policy there are three
deputies: one is for supply reduction, which would be the one
that I am being nominated for; one is for demand reduction; and
one is for State, local and tribal collaboration and
coordination. So I would be nominated for Supply Reduction.
Senator Klobuchar. OK. Very good.
And what's the major focus then? It's on making sure that
we reduce our supply of illegal drugs? Is that right?
General Quagliotti. Correct. And really the portfolio for
this office is mainly an international portfolio, so dealing
with countries that are outside the United States which are
trying to reduce drug trafficking organizations within their
own country.
Senator Klobuchar. Very good.
And in Panama you spent 2 years as a Brigade Commander,
working to stop the flow of illegal drugs into the U.S. And you
also advised the Colombia army on command and control issues
related to illegal drugs. Can you tell us about this experience
and how that will help you in this job?
General Quagliotti. Yes, Senator. You know, I've traveled
across the world throughout my 32 years as an active duty
soldier, spent a lot of time, 9 years, overseas. The 2 years
that really impressed me the most was the time that I spent in
Panama as Brigade Commander.
And during that period of time my organization deployed
over 50 times into Central and South America, and during those
deployments we were actually supporting projects that were
sponsored by the State Department and really the responsibility
of SouthCom, which is the military command in that region. We
were supporting emerging democracies because at that time,
which was 1995 to 1997, we still had insurgency movements in
Central and South America.
So I really became familiar with the effect that drugs can
have on a democracy, on the corrupting effects that it can have
with the judicial system, the military, law enforcement, and
even in the daily lives of the people who live in the
countries. So I believe that I have the international
experience, the interagency experience to negotiate,
collaborate, and work with Central and South America, as well
as other countries, to reduce the flow of drugs into the United
States.
Senator Klobuchar. Very good.
And I also wanted to congratulate you on becoming the first
female signal soldier to obtain the rank of Major General.
General Quagliotti. Thank you, Senator.
[The biographical information follows.]
Senator Klobuchar. Very good. I note that three of our four
nominees are women. You broke the glass ceiling, Mr. Green, to
be included in this group.
[Laughter.]
Senator Klobuchar. In any case, I want to congratulate all
of you on a job well done. I don't think we have any remaining
questions, although Senators are welcome to submit questions
for the record. The record will remain open for 1 week.
I wish you all well. Thank you and all of your extended
families for being here, and those of them watching on webcast.
So, have a very good day.
With that, this hearing is adjourned.
[Whereupon, at 3:43 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]