Text: S.Hrg. 107-584 — CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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[Senate Hearing 107-584]
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                                                 S. Hrg. 107-584, Pt. 4
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

           MAY 9, MAY 23, JUNE 13, JUNE 27, AND JULY 23, 2002

                               __________

                                 PART 4

                               __________

                          Serial No. J-107-23

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director



                            C O N T E N T S

                              ----------                              

                         THURSDAY, MAY 9, 2002
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington     1
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   231

                               PRESENTERS

Akaka, Hon. Daniel, a U.S. Senator from the State of Hawaii 
  presenting Richard Clifton, Nominee to be Circuit Judge for the 
  Ninth Circuit..................................................     2
Cox, Hon. Christopher, a Representative in Congress from the 
  State of California presenting Richard Clifton, Nominee to be 
  Circuit Judge for the Ninth Circuit............................     5
Hart, Hon. Melissa, a Representative in Congress from the State 
  of Pennsylvania presenting Joy Flowers Conti, Nominee to be 
  District Judge for the Western District of Pennsylvania........     8
Holden, Hon. Tim, a Representative in Congress from the State of 
  Pennsylvania presenting John E. Jones, III, Nominee to be 
  District Judge for the Middle District of Pennsylvania.........     7
Inouye, Hon. Daniel K., a U.S. Senator from the State of Hawaii 
  presenting Richard Clifton, Nominee to be Circuit Judge for the 
  Ninth District.................................................    69
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting Christopher C. Conner, Nominee to be 
  District Judge for the Middle District of Pennsylvania, Joy 
  Flowers Conti, Nominee to be District Judge for the Western 
  District of Pennsylvania, and John E. Jones, III, Nominee to be 
  District Judge for the Middle District of Pennsylvania.........     4
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting Christopher C. Conner, Nominee to be 
  District Judge for the Middle District of Pennsylvania, Joy 
  Flowers Conti, Nominee to be District Judge for the Western 
  District of Pennsylvania, and John E. Jones, III, Nominee to be 
  District Judge for the Middle District of Pennsylvania.........     3

                       STATEMENTS OF THE NOMINEES

Clifton, Richard, Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................     9
    Questionnaire................................................    16
Conner, Christopher C., Nominee to be District Judge for the 
  Middle District of Pennsylvania................................    66
    Questionnaire................................................    75
Conti, Joy Flowers, Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................    66
    Questionnaire................................................   134
Jones, John E., III, Nominee to be District Judge for the Middle 
  District of Pennsylvania.......................................    68
    Questionnaire................................................   188

                         THURSDAY, MAY 23, 2002
                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   493
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   239
    prepared statement...........................................   498
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   241
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina, prepared statement...................................   504

                               PRESENTERS

Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Henry E. Hudson, Nominee to be District Judge for 
  the Eastern District of Virginia...............................   252
Bond, Hon. Kit, a U.S. Senator from the State of Missouri 
  presenting Henry E. Autrey, Nominee to be District Judge for 
  the Eastern District of Missouri and Richard E. Dorr, Nominee 
  to be District Judge for the Western District of Missouri......   249
Brady, Hon. Robert, a Representative in Congress from the State 
  of Pennsylvania presenting Timothy J. Savage, Nominee to be 
  District Judge for the Eastern District of Pennsylvania........   256
Carnahan, Hon. Jean, a U.S. Senator from the State of Missouri 
  presenting Henry E. Autrey, Nominee to be District Judge for 
  the Eastern District of Missouri and Richard E. Dorr, Nominee 
  to be District Judge for the Western District of Missouri......   254
Clay, Hon. William Lacy, a Representative in Congress from the 
  State of Missouri presenting Henry E. Autrey, Nominee to be 
  District Judge for the Eastern District of Missouri............   255
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois presenting Amy J. St. Eve, Nominee to be District 
  Judge for the Northern District of Illinois....................   244
Fitzgerald, Hon. Peter, a U.S. Senator from the State of Illinois 
  presenting Amy J. St. Eve, Nominee to be District Judge for the 
  Northern District of Illinois..................................   245
Hutchinson, Hon. Tim, a U.S. Senator from the State of Arkansas 
  presenting Lavenski R. Smith, Nominee to be Circuit Judge for 
  the Eighth Circuit.............................................   246
Lincoln, Hon. Blanche, a U.S. Senator from the State of Arkansas 
  presenting Lavenski R. Smith, Nominee to be Circuit Judge for 
  the Eighth Circuit.............................................   247
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting Timothy J. Savage, Nominee to be 
  District Judge for the Eastern District of Pennsylvania........   251
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting Timothy J. Savage, Nominee to be 
  District Judge for the Eastern District of Pennsylvania........   243
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting Henry E. Hudson, Nominee to be District Judge for 
  the Eastern District of Virginia...............................   243

                       STATEMENTS OF THE NOMINEES

Autrey, Henry E., Nominee to be District Judge for the Eastern 
  District of Missouri...........................................   302
    Questionnaire................................................   310
Dorr, Richard E., Nominee to be District Judge for the Western 
  District of Missouri...........................................   302
    Questionnaire................................................   338
Hudson, Henry E., Nominee to be District Judge for the Eastern 
  District of Virginia...........................................   302
    Questionnaire................................................   380
St. Eve, Amy J., Nominee to be District Judge for the Northern 
  District of Illinois...........................................   303
    Questionnaire................................................   410
Savage, Timothy J., Nominee to be District Judge for the Eastern 
  District of Pennsylvania.......................................   303
    Questionnaire................................................   441
Smith, Lavenski R., Nominee to be Circuit Judge for the Eighth 
  Circuit........................................................   257
    Questionnaire................................................   270

                         QUESTIONS AND ANSWERS

Responses of Henry E. Hudson to questions submitted by Senator 
  Leahy..........................................................   473
Responses of Amy J. St. Eve to questions submitted by Senator 
  Leahy..........................................................   477
Responses of Timothy J. Savage to questions submitted by Senator 
  Leahy..........................................................   480
Responses of Lavenski R. Smith to questions submitted by Senator 
  Cantwell.......................................................   482
Responses of Lavenski R. Smith to questions submitted by Senator 
  Kennedy........................................................   487

                       SUBMISSIONS FOR THE RECORD

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, statement in support of Amy St. Eve, Nominee to be 
  District Judge for the Northern District of Illinois...........   491
Moran, Hon. James P., a Representative in Congress from the State 
  of Virginia, letter in support of Henry E. Hudson, Nominee to 
  be District Judge for the Eastern District of Virginia.........   502
Saslaw, Hon. Richard L., Senate Minority Leader, Senate of the 
  Commonwealth of Virginia, Springfield, Virginia, letter........   503
Virginia Bar Association, Jeanne F. Franklin, President, 
  Richmond, Virginia, letter.....................................   508
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  statement in support of Henry E. Hudson, Nominee to be District 
  Judge for the Eastern District of Virginia.....................   509

                        THURSDAY, JUNE 13, 2002
                     STATEMENT OF COMMITTEE MEMBER

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   726

                               PRESENTERS

Bartlett, Hon. Roscoe, a Representative in Congress from the 
  State of Maryland presenting Lawrence Greenfeld, Nominee to be 
  Director, Bureau of Justice Statistics, Department of Justice..   519
Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky 
  presenting John M. Rogers, Nominee to be Circuit Judge for the 
  Sixth Circuit..................................................   516
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Morrison Cohen England, Jr., Nominee to 
  be District Judge for the Eastern District of California.......   513
McConnell, Hon. Mitch, a U.S. Senator from the State of Kenutcky 
  presenting John M. Rogers, Nominee to be Circuit Judge for the 
  Sixth Circuit..................................................   515
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting David S. Cercone, Nominee to be 
  District Judge for the Western District of Pennsylvania........   517
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting David S. Cercone, Nominee to be 
  District Judge for the Western District of Pennsylvania........   518

                       STATEMENTS OF THE NOMINEES

Cercone, David S., Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   559
    Questionnaire................................................   570
England, Morrison Cohen, Jr., Nominee to be District Judge for 
  the Eastern District of California.............................   560
    Questionnaire................................................   657
Greenfeld, Lawrence, Nominee to be Director, Bureau of Justice 
  Statistics, Department of Justice..............................   561
    Questionnaire................................................   692
Marra, Kenneth A., Nominee to be District Judge for the Southern 
  District of Florida............................................   560
    Questionnaire................................................   621
Rogers, John M., Nominee to be Circuit Judge for the Sixth 
  Circuit........................................................   521
    Questionnaire................................................   528

                         QUESTIONS AND ANSWERS

Responses of John M. Rogers to questions submitted by Senator 
  Leahy..........................................................   714
Responses of John M. Rogers to questions submitted by Senator 
  Kennedy........................................................   721

                       SUBMISSIONS FOR THE RECORD

Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  letter in support of Morrison Cohen England, Jr., Nominee to be 
  District Judge for the Eastern District of California..........   724
Graham, Hon. Bob, a U.S. Senator from the State of Florida, 
  letter in support of Kenneth A. Marra, Nominee to be District 
  Judge for the Southern District of Florida.....................   725

                        THURSDAY, JUNE 27, 2002
                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   744
    prepared statements and attachment...........................   982
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin...   737
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   996
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   735

                               PRESENTERS

Hart, Hon. Melissa, a Representative in Congress from the State 
  of Pennsylvania presenting Arthur Schwab and Terrence McVerry, 
  Nominees to be District Judges for the Western District of 
  Pennsylvania...................................................   751
Hollings, Hon. Fritz, a U.S. Senator from the State of South 
  Carolina presenting Dennis Shedd, Nominee to be Circuit Judge 
  for the Fourth Circuit.........................................   736
    prepared statement...........................................   992
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting Arthur Schwab and Terrence McVerry, 
  Nominees to be District Judges for the Western District of 
  Pennsylvania...................................................   738
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting Arthur Schwab and Terrence McVerry, 
  Nominees to be District Judges for the Western District of 
  Pennsylvania...................................................   737
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina presenting Dennis Shedd, Nominee to be Circuit Judge 
  for the Fourth Circuit.........................................   736
    prepared statement...........................................  1002
Wilson, Hon. Joe, a Representative in Congress from the State of 
  South Carolina presenting Dennis Shedd, Nominee to be Circuit 
  Judge for the Fourth Circuit...................................   750

                       STATEMENTS OF THE NOMINEES

McVerry, Terrence, Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   741
    Questionnaire................................................   865
Schwab, Arthur, Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   740
    Questionnaire................................................   806
Shedd, Dennis, Nominee to be Circuit Judge for the Fourth Circuit   740
    Questionnaire................................................   769

                         QUESTIONS AND ANSWERS

Responses of Dennis Shedd to questions submitted by Senator 
  Cantwell.......................................................   922
Responses of Dennis Shedd to questions submitted by Senator 
  Edwards........................................................   935
Responses of Dennis Shedd to questions submitted by Senator 
  Feingold.......................................................   942
Responses of Dennis Shedd to questions submitted by Senator 
  Kennedy........................................................   952
Response of Dennis Shedd to a question submitted by Senator 
  Specter........................................................   965
Responses of Arthur Schwab to questions submitted by Senator 
  Leahy..........................................................   970

                       SUBMISSION FOR THE RECORD

Jones, Thomas W., Jr., Attorney at Law, Rosenberg Proutt Funk & 
  Greenberg, LLP, Baltimore, Maryland, letter in support of 
  Dennis Shedd, Nominee to be Circuit Judge for the Fourth 
  Circuit........................................................   995

                         TUESDAY, JULY 23, 2002
                    STATEMENTS OF COMMITTEE MEMBERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................  1013
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......  1014
    prepared statement...........................................  1323
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.  1021
    prepared statement...........................................  1337
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky, 
  prepared statement and attachment..............................  1341
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................  1063

                               PRESENTERS

Gramm, Hon. Phil, a U.S. Senator from the State of Texas 
  presenting Priscilla Owen, Nominee to be Circuit Judge for the 
  Fifth Circuit..................................................  1022
Granger, Hon. Kay, a Representative in Congress from the State of 
  Texas presenting Priscilla Owen, Nominee to be Circuit Judge 
  for the Fifth Circuit..........................................  1025
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Priscilla Owen, Nominee to be Circuit Judge 
  for the Fifth Circuit..........................................  1029
Nelson, Hon. Bill, a U.S. Senator from the State of Florida 
  presenting Timothy J. Corrigan, Nominee to be District Judge 
  for the Middle District of Florida and Jose E. Martinez, 
  Nominee to be District Judge for the Southern District of 
  Florida........................................................  1024
    prepared statement...........................................  1353

                       STATEMENTS OF THE NOMINEES

Corrigan, Timothy J., Nominee to be District Judge for the Middle 
  District of Florida............................................  1131
    Questionnaire................................................  1135
Martinez, Jose E., Nominee to be District Judge for the Southern 
  District of Florida............................................  1131
    Questionnaire................................................  1168
Owen, Priscilla, Nominee to be Circuit Judge for the Fifth 
  Circuit........................................................  1026
    Questionnaire................................................  1085
    prepared statement...........................................  1359

                         QUESTIONS AND ANSWERS

Responses of Priscilla Owen to questions submitted by Senator 
  Feingold.......................................................  1212
Responses of Priscilla Owen to questions submitted by Senator 
  Kennedy........................................................  1225
Responses of Priscilla Owen to questions submitted by Senator 
  Leahy..........................................................  1242
Responses of Priscilla Owen to questions submitted by Senator 
  Schumer........................................................  1268

                       SUBMISSIONS FOR THE RECORD

Bishop, E. Thomas, President, Texas Association of Defense 
  Counsel, Inc., Austin, Texas, letter...........................  1279
Casanova, Roy V., Jr., Legislative Director, Republican National 
  Hispanic Assembly, San Antonio, Texas, letter..................  1280
Concerned Women for America, Washington, D.C., memorandum........  1281
De Leon, Hector, Attorney at Law, De Leon, Boggins & Icenogle, 
  Austin, Texas, letter..........................................  1295
Gonzales, Alberto R., Counsel to the President, White House, 
  Washington, D.C., letter.......................................  1298
Gonzalez, Raul A. and Rose Spector, Justices, Texas Supreme 
  Court, Austin, Texas, joint letter.............................  1301
Graham, Hon. Bob, a U.S. Senator from the State of Florida, 
  letter in support of Timothy J. Corrigan, Nominee to be 
  District Judge for the Middle District of Florida and Jose E. 
  Martinez, Nominee to be District Judge for the Southern 
  District of Florida............................................  1302
Gray, C. Boyden, former Counsel to the President, Washington, 
  D.C., article..................................................  1304
Hill, John L., former Chief Justice, Texas Supreme Court, 
  Houston, Texas, letter.........................................  1330
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas..........................................................  1333
Hutchison, Hon. Kay Bailey and Hon. Phil Gramm, U.S. Senators 
  from the State of Texas, joint letter..........................  1332
Ivey, Jon David, Counsellor at Law, Baker & Hostetler, LLP, 
  Houston, Texas, letter.........................................  1334
Jordan, Darrell E., Attorney at Law, Hughes Luce LLP, Dallas, 
  Texas, letter..................................................  1335
Matthews, Charles W., Irving, Texas, letter......................  1340
Mott, Robert, Attorney at Law, Perdue, Brandon, Fiedler, Collins 
  & Mott, L.L.P., Houston, Texas, letter.........................  1352
Obenhaus, Stacy R., Gardere Wynne Sewell LLP, Dallas, Texas, 
  letter.........................................................  1358
Ploeger, Lori R.E., Attorney at Law, Austin, Texas, letter.......  1363
Policyholders of America, letter.................................  1365
Reynolds, Herbert H., President and Chancellor Emeritus, Baylor 
  University, Waco, Texas, letter................................  1367
Schwartz, Victor E., Attorney at Law, Shook, Hardy & Bacon 
  L.L.P., Washington, D.C., letter...............................  1368
Shapiro, Hon. Florence, Senator, Senate of the State of Texas, 
  Austin, Texas, letter..........................................  1372
Smith, Jason C.N., Attorney at Law, Fort Worth, Texas, letter....  1374
Vaughan, Shelton M., Attorney at Law, Houston, Texas, letter.....  1378

                              ----------                              

                     ALPHABETICAL LIST OF NOMINEES

Autrey, Henry E., Nominee to be District Judge for the Eastern 
  District of Missouri...........................................   302
    Questionnaire................................................   310
Cercone, David S., Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   559
    Questionnaire................................................   570
Clifton, Richard, Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................     9
    Questionnaire................................................    16
Conner, Christopher C., Nominee to be District Judge for the 
  Middle District of Pennsylvania................................    66
    Questionnaire................................................    75
Conti, Joy Flowers, Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................    66
    Questionnaire................................................   134
Corrigan, Timothy J., Nominee to be District Judge for the Middle 
  District of Florida............................................  1131
    Questionnaire................................................  1135
Dorr, Richard E., Nominee to be District Judge for the Western 
  District of Missouri...........................................   302
    Questionnaire................................................   338
England, Morrison Cohen, Jr., Nominee to be District Judge for 
  the Eastern District of California.............................   560
    Questionnaire................................................   657
Greenfeld, Lawrence, Nominee to be Director, Bureau of Justice 
  Statistics, Department of Justice..............................   561
    Questionnaire................................................   692
Hudson, Henry E., Nominee to be District Judge for the Eastern 
  District of Virginia...........................................   302
    Questionnaire................................................   380
Jones, John E., III, Nominee to be District Judge for the Middle 
  District of Pennsylvania.......................................    68
    Questionnaire................................................   188
Marra, Kenneth A., Nominee to be District Judge for the Southern 
  District of Florida............................................   560
    Questionnaire................................................   621
Martinez, Jose E., Nominee to be District Judge for the Southern 
  District of Florida............................................  1131
    Questionnaire................................................  1168
McVerry, Terrence, Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   741
    Questionnaire................................................   865
Owen, Priscilla, Nominee to be Circuit Judge for the Fifth 
  Circuit........................................................  1026
    Questionnaire................................................  1085
    prepared statement...........................................  1359
Rogers, John M., Nominee to be Circuit Judge for the Sixth 
  Circuit........................................................   521
    Questionnaire................................................   528
Savage, Timothy J., Nominee to be District Judge for the Eastern 
  District of Pennsylvania.......................................   303
    Questionnaire................................................   441
Schwab, Arthur, Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   740
    Questionnaire................................................   806
Shedd, Dennis, Nominee to be Circuit Judge for the Fourth Circuit   740
    Questionnaire................................................   769
Smith, Lavenski R., Nominee to be Circuit Judge for the Eighth 
  Circuit........................................................   257
    Questionnaire................................................   270
St. Eve, Amy J., Nominee to be District Judge for the Northern 
  District of Illinois...........................................   303
    Questionnaire................................................   410

 
  NOMINATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE FOR THE 
NINTH CIRCUIT; CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE MIDDLE DISTRICT OF PENNSYLVANIA; JOY FLOWERS CONTI, NOMINEE TO BE 
 DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; AND JOHN E. 
  JONES, III, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF 
                              PENNSYLVANIA

                              ----------                              


                         THURSDAY, MAY 9, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 2:05 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Maria 
Cantwell presiding.
    Present: Senators Cantwell, Leahy, and Specter.

 OPENING STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM 
                    THE STATE OF WASHINGTON

    Senator Cantwell. The Senate Judiciary Committee will come 
to order.
    Good afternoon. I would like to welcome everyone here to 
the Judiciary Committee's 16th nomination hearing of 2002. We 
are here to consider the nominations of four individuals to the 
Federal bench, one nominee for the Ninth Circuit Court of 
Appeals, and three nominees to the district courts in 
Pennsylvania.
    We are fortunate to have a talented group of nominees with 
us, and I would like to extend a welcome to them and to their 
families who are here, and the friends that may have joined 
them as well.
    I am pleased to be able to chair this hearing today. Moving 
57 judicial nominees through the confirmation process and on to 
the Federal courts around the country over the past 10 months 
has required that all the members assist the chairman, and I am 
happy to take part in that, as well as today's hearing.
    The nominees here today all have strong records that have 
demonstrated the ability to analyze complex and important legal 
concepts in a manner befitting a Federal judge. Their records 
reflect a commitment to our fundamental constitutional 
protections and rights, including the advancement and 
protection of civil rights and liberties for everyone.
    Some of the nominees have the support of bipartisan 
delegations, and all are here with the support of both of their 
home state Senators. We take that support and sponsorship 
seriously. As Federal judges, the nominees before us will have 
a vital role to play at very difficult times in our Nation's 
history. But with their individual records of public service, I 
am confident that they will take this role seriously, take the 
responsibility to heart, and ensure that the decisions that 
they make demonstrate the fairmindedness that we rely upon and 
that have been a part of our rich history and judicial 
precedent.
    I would like to make a special note that Mr. Clifton, the 
nominee for the Ninth Circuit Court of Appeals, is a long-time 
resident of Hawaii, and upon his confirmation he will be the 
first member of the Ninth Circuit Court actually from Hawaii, 
since 1984. My state of Washington is part of the Ninth Circuit 
Court and has a longstanding and close relationship with 
Hawaii. I am pleased that Hawaii will have local representation 
on the court of appeals.
    Before we hear from the distinguished Senators here that 
are taking part in this hearing to introduce the nominees, I 
would like to ask Senator Specter for any of his comments.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, thank you, Madam Chairwoman. I am 
delighted to see these distinguished judicial nominees, even 
more delighted to see three from the Commonwealth of 
Pennsylvania. Let the proceedings begin.
    Senator Cantwell. We really do want these nominees.
    [Laughter.]
    Senator Cantwell. Senator Akaka, would you like to start?

 PRESENTATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE NINTH CIRCUIT BY HON. DANIEL AKAKA, A U.S. SENATOR FROM 
                      THE STATE OF HAWAII

    Senator Akaka. Thank you very much, Madam Chairwoman. I 
greatly appreciate this opportunity to appear before this 
committee this afternoon on the nomination of Richard Clifton 
to the United States Court of Appeals for the Ninth Circuit. I 
would like to welcome with much aloha Mr. Clifton and his wife, 
Teresa, and his family.
    Aloha, and welcome.
    Madam Chairman, I want to commend this committee and the 
Senate for the progress made on judicial nominations during the 
107th Congress. I applaud the committee and its members and the 
committee staff for holding 16 hearings involving 55 judicial 
nominations during the past 10 months, leading to the 
confirmation of at least 52 judicial nominees in the 107th 
Congress. I am glad that today we confirm four of them.
    As you know, Hawaii has waited a number of years for Senate 
confirmation of a Hawaii resident for a position on the U.S. 
Court of Appeals for the Ninth Circuit. In 1995, I introduced 
legislation to require representation on the court from each 
State within the jurisdiction of the court. We have waited many 
years for this opportunity. I am pleased that Hawaii will 
finally have a judge on the Ninth Circuit.
    I first had the pleasure of meeting Mr. Clifton last year, 
after I learned that the White House was considering him for 
this judicial position. Mr. Clifton has had a distinguished 
legal career. The Hawaii State Bar Association found him to be 
highly qualified for this position.
    A graduate of Princeton University, he received his juris 
doctorate from the Yale Law School in 1975. Mr. Clifton has 
practiced in Hawaii since 1975 and has been a partner with the 
law firm of Cades, Schutte, Fleming and Wright in Honolulu, 
Hawaii, since 1982.
    Mr. Clifton is licensed to practice before Hawaii's State 
and Federal courts, Illinois State courts, the United States 
Courts of Appeals for the Second and Ninth Circuits, and the 
U.S. Supreme Court. Mr. Clifton has written articles published 
in the Yale Review of Law and Social Action and the Hawaii Bar 
News. He has extensive legal experience in civil litigation, 
primarily business and commercial litigation. I believe he will 
be an asset to the Court of Appeals for the Ninth Circuit, and 
I offer my full support of his nomination.
    Thank you very much for this chance to speak up on him. 
Thank you very much.
    Senator Cantwell. Thank you, Senator Akaka. As I said in my 
statement, we do appreciate you being here and the comments 
that you have made about the nominee.
    Senator Akaka. I would like to be excused for a markup.
    Senator Cantwell. Thank you.
    Senator Specter, would you like to introduce the nominees 
from Pennsylvania?

 PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS 
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
 PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. ARLEN 
     SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Specter. Yes, thank you very much.
    The nominees are, ladies first, Joy Flowers Conti, who 
brings an outstanding academic and professional resume and 
public service, a graduate of Duquesne University in 1970 and 
the law school in 1973, summa cum laude. The first woman hired 
as an associate by Kirkpatrick and Lockhart, a very prestigious 
Pittsburgh law firm, she was later professor at the Duquesne 
University School of Law. She is co-chair of the Pennsylvania 
Bar Association's Task Force on Legal Services for the Poor. So 
Ms. Conti has quite a record of academic achievement and work 
as a professor and also in the community sector.
    Christopher C. Conner is a graduate of Cornell University, 
with a bachelor's degree in 1979, and Dickinson Law School in 
1972, a shareholder--that is the current word for partner, with 
the corporate structure taking over the law firms--in the 
distinguished law firm of Mette, Evans and Woodside, and vice 
president of the Pennsylvania Bar Association. He received two 
special achievement awards from the Pennsylvania Bar for 
leadership in the campaign for reform of judicial discipline 
and co-chairing the statewide high school mock trial 
competition.
    John Jones has had a distinguished career, a bachelor's 
degree from Dickinson College in 1977 and Dickinson School of 
Law in 1980. He has served as chairman of the Commonwealth of 
Pennsylvania Liquor Control Board from 1995 to the present 
time, and that is a very complicated, very high-pressure job.
    He has had a distinguished record in the practice of law, 
having a one-man office, a great item, from 1986 to the present 
time, almost an extinct species. He had been an associate and 
partner in Dolbin, Cori and Jones, a very prestigious law firm 
in Pottsville, Pennsylvania.
    I could say a great deal more about these three outstanding 
nominees, but I am going to defer at this time, if I may, to my 
distinguished colleague, Senator Santorum.

 PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS 
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
 PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. RICK 
    SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Santorum. Thank you, Senator. I appreciate the 
opportunity to be here, and I want to thank the committee for 
holding hearings on these three district court nominees from 
Pennsylvania. We have had 11 vacancies in Pennsylvania. Three 
have been confirmed to date, and this will double that number 
and we are very happy to see that progress here today.
    I too will take them in order, as Senator Specter did. Let 
me first comment on Joy Conti. Joy, as you mentioned, was one 
of the first hired at Kirkpatrick and Lockhart. And you are 
right; it is a very distinguished firm. I used to work at it. 
She was a partner when I was a lowly associate at that law firm 
and she had an incredible reputation for integrity, for hard 
work, and being just incredibly fair in dealing obviously with 
her clients, but also with those of us who were underlings at 
the firm.
    She had just a sparkling reputation, and I am very, very 
excited. She no longer works at that firm. She works at 
Buchanan and Ingersoll, but she had an incredible reputation at 
the firm and has distinguished herself in the Pittsburgh legal 
community over quite a period of years and we are very, very 
fortunate that she has agreed to take on this task of serving 
in the Federal judiciary. So I want to thank her for that, and 
thank her husband and three children for being here today.
    Kit


  NOMINATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE FOR THE 
NINTH CIRCUIT; CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE MIDDLE DISTRICT OF PENNSYLVANIA; JOY FLOWERS CONTI, NOMINEE TO BE 
 DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; AND JOHN E. 
  JONES, III, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF 
                              PENNSYLVANIA

                              ----------                              


                         THURSDAY, MAY 9, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 2:05 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Maria 
Cantwell presiding.
    Present: Senators Cantwell, Leahy, and Specter.

 OPENING STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM 
                    THE STATE OF WASHINGTON

    Senator Cantwell. The Senate Judiciary Committee will come 
to order.
    Good afternoon. I would like to welcome everyone here to 
the Judiciary Committee's 16th nomination hearing of 2002. We 
are here to consider the nominations of four individuals to the 
Federal bench, one nominee for the Ninth Circuit Court of 
Appeals, and three nominees to the district courts in 
Pennsylvania.
    We are fortunate to have a talented group of nominees with 
us, and I would like to extend a welcome to them and to their 
families who are here, and the friends that may have joined 
them as well.
    I am pleased to be able to chair this hearing today. Moving 
57 judicial nominees through the confirmation process and on to 
the Federal courts around the country over the past 10 months 
has required that all the members assist the chairman, and I am 
happy to take part in that as well as today's hearing.
    The nominees here today all have strong records that have 
demonstrated the ability to analyze complex and important legal 
concepts in a manner befitting a Federal judge. Their records 
reflect a commitment to our fundamental constitutional 
protections and rights, including the advancement and 
protection of civil rights and liberties for everyone.
    Some of the nominees have the support of bipartisan 
delegations, and all are here with the support of both of their 
home state Senators. We take that support and sponsorship 
seriously. As Federal judges, the nominees before us will have 
a vital role to play at very difficult times in our Nation's 
history. But with their individual records of public service, I 
am confident that they will take this role seriously, take the 
responsibility to heart, and ensure that the decisions that 
they make demonstrate the fairmindedness that we rely up on and 
that have been a part of our rich history and judicial 
precedent.
    I would like to make a special note that Mr. Clifton, the 
nominee for the Ninth Circuit Court of Appeals, is a long-time 
resident of Hawaii, and upon his confirmation he will be the 
first member of the Ninth Circuit Court actually from Hawaii, 
since 1984. My stae of Washington, is part of the Ninth Circuit 
Court and has a longstanding and close relationship with 
Hawaii. I am pleased that Hawaii will have local representation 
on the court of appeals.
    Before we hear from the distinguished Senators here that 
are taking part in this hearing to introduce the nominees, I 
would like to ask Senator Specter for any of his comments.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, thank you, Madam Chairwoman. I am 
delighted to see these distinguished judicial nominees, even 
more delighted to see three from the Commonwealth of 
Pennsylvania. Let the proceedings begin.
    Senator Cantwell. We really do want these nominees.
    [Laughter.]
    Senator Cantwell. Senator Akaka, would you like to start?

 PRESENTATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE NINTH CIRCUIT BY HON. DANIEL AKAKA, A U.S. SENATOR FROM 
                      THE STATE OF HAWAII

    Senator Akaka. Thank you very much, Madam Chairwoman. I 
greatly appreciate this opportunity to appear before this 
committee this afternoon on the nomination of Richard Clifton 
to the United States Court of Appeals for the Ninth Circuit. I 
would like to welcome with much aloha Mr. Clifton and his wife, 
Teresa, and his family.
    Aloha, and welcome.
    Madam Chairman, I want to commend this committee and the 
Senate for the progress made on judicial nominations during the 
107th Congress. I applaud the committee and its members and the 
committee staff for holding 16 hearings involving 55 judicial 
nominations during the past 10 months, leading to the 
confirmation of at least 52 judicial nominees in the 107th 
Congress. I am glad that today we confirm four of them.
    As you know, Hawaii has waited a number of years for Senate 
confirmation of a Hawaii resident for a position on the U.S. 
Court of Appeals for the Ninth Circuit. In 1995, I introduced 
legislation to require representation on the court from each 
State within the jurisdiction of the court. We have waited many 
years for this opportunity. I am pleased that Hawaii will 
finally have a judge on the Ninth Circuit.
    I first had the pleasure of meeting Mr. Clifton last year, 
after I learned that the White House was considering him for 
this judicial position. Mr. Clifton has had a distinguished 
legal career. The Hawaii State Bar Association found him to be 
highly qualified for this position.
    A graduate of Princeton University, he received his juris 
doctorate from the Yale Law School in 1975. Mr. Clifton has 
practiced in Hawaii since 1975 and has been a partner with the 
law firm of Cades, Schutte, Fleming and Wright in Honolulu, 
Hawaii, since 1982.
    Mr. Clifton is licensed to practice before Hawaii's State 
and Federal courts, Illinois State courts, the United States 
Courts of Appeals for the Second and Ninth Circuits, and the 
U.S. Supreme Court. Mr. Clifton has written articles published 
in the Yale Review of Law and Social Action and the Hawaii Bar 
News. He has extensive legal experience in civil litigation, 
primarily business and commercial litigation. I believe he will 
be an asset to the Court of Appeals for the Ninth Circuit, and 
I offer my full support of his nomination.
    Thank you very much for this chance to speak up on him. 
Thank you very much.
    Senator Cantwell. Thank you, Senator Akaka. As I said in my 
statement, we do appreciate you being here and the comments 
that you have made about the nominee.
    Senator Akaka. I would like to be excused for a markup.
    Senator Cantwell. Thank you.
    Senator Specter, would you like to introduce the nominees 
from Pennsylvania?

 PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS 
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
 PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. ARLEN 
SPECTER, A UNITED STATES SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Specter. Yes, thank you very much.
    The nominees are, ladies first, Joy Flowers Conti, who 
brings an outstanding academic and professional resume and 
public service, a graduate of Duquesne University in 1970 and 
the law school in 1973, summa cum laude. The first woman hired 
as an associate by Kirkpatrick and Lockhart, a very prestigious 
Pittsburgh law firm, she was later professor at the Duquesne 
University School of Law. She is co-chair of the Pennsylvania 
Bar Association's Task Force on Legal Services for the Poor. So 
Ms. Conti has quite a record of academic achievement and work 
as a professor and also in the community sector.
    Christopher C. Conner is a graduate of Cornell University, 
with a bachelor's degree in 1979, and Dickinson Law School in 
1972, a shareholder--that is the current word for partner, with 
the corporate structure taking over the law firms--in the 
distinguished law firm of Mette, Evans and Woodside, and vice 
president of the Pennsylvania Bar Association. He received two 
special achievement awards from the Pennsylvania Bar for 
leadership in the campaign for reform of judicial discipline 
and co-chairing the statewide high school mock trial 
competition.
    John Jones has had a distinguished career, a bachelor's 
degree from Dickinson College in 1977 and Dickinson School of 
Law in 1980. He has served as chairman of the Commonwealth of 
Pennsylvania Liquor Control Board from 1995 to the present 
time, and that is a very complicated, very high-pressure job.
    He has had a distinguished record in the practice of law, 
having a one-man office, a great item, from 1986 to the present 
time, almost an extinct species. He had been an associate and 
partner in Dolbin, Cori and Jones, a very prestigious law firm 
in Pottsville, Pennsylvania.
    I could say a great deal more about these three outstanding 
nominees, but I am going to defer at this time, if I may, to my 
distinguished colleague, Senator Santorum.

 PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS 
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
 PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. RICK 
    SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Santorum. Thank you, Senator. I appreciate the 
opportunity to be here, and I want to thank the committee for 
holding hearings on these three district court nominees from 
Pennsylvania. We have had 11 vacancies in Pennsylvania. Three 
have been confirmed to date, and this will double that number 
and we are very happy to see that progress here today.
    I too will take them in order, as Senator Specter did. Let 
me first comment on Joy Conti. Joy, as you mentioned, was one 
of the first hired at Kirkpatrick and Lockhart. And you are 
right; it is a very distinguished firm. I used to work at it. 
She was a partner when I was a lowly associate at that law firm 
and she had an incredible reputation for integrity, for hard 
work, and being just incredibly fair in dealing obviously with 
her clients, but also with those of us who were underlings at 
the firm.
    She had just a sparkling reputation, and I am very, very 
excited. She no longer works at that firm. She works at 
Buchanan and Ingersoll, but she had an incredible reputation at 
the firm and has distinguished herself in the Pittsburgh legal 
community over quite a period of years and we are very, very 
fortunate that she has agreed to take on this task of serving 
in the Federal judiciary. So I want to thank her for that, and 
thank her husband and three children for being here today.
    Kit Conner, or Christopher Charles Conner, is looking for a 
position here in the Middle District of Pennsylvania. He is 
someone who is an outstanding litigator. He comes with the 
highest of recommendations. He went to a great law school. It 
happens to be the law school I graduated from, Dickinson School 
of Law, and he has made a tremendous contribution to that 
school and to jurisprudence in the Middle District. He is going 
to be an outstanding member of the court.
    John Jones is another outstanding lawyer and has served not 
just as an outstanding lawyer, but served the community beyond 
the practice of law. As Senator Specter mentioned, he was the 
head of the Liquor Control Board in Pennsylvania which, as 
Senator Specter noted, is a very difficult position. It is a 
position that is constantly under scrutiny of attempts to 
privatize, to modernize, and he has shepherded it through some 
very difficult waters and dramatically improved efficiency 
there and has just done an outstanding job for Governor Ridge, 
and now Governor Schweiker, in an appointed position in that 
regard. It shows his commitment to public service, but he has 
also been, as Senator Specter noted, an outstanding litigator, 
an outstanding attorney in Schuylkill County.
    So I am very, very excited about all three of these 
nominees. I think the committee, under review, will find them 
to be incredible nominees for these positions, and I certainly 
recommend that the committee move them to the floor and get 
them voted on and seated quickly.
    Senator Cantwell. So, Senator Santorum, you have not worked 
with Mr. Jones before?
    Senator Santorum. No, but I did mention he also went to the 
same law school I went to. So he also has an outstanding legal 
education.
    Senator Cantwell. I thought perhaps you were on the Liquor 
Control Board and we hadn't known about it.
    [Laughter.]
    Senator Santorum. No. I have tried. Well, that is another 
story. Let's not go there.
    Senator Cantwell. We are honored to have three of our 
colleagues from the House here to also give comments on the 
nominees. I am glad to see Representatives Cox and Holden, whom 
I have served with in the House. It is good to have you here, 
as well, Congresswoman Hart.
    Representative Cox?

 PRESENTATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE NINTH CIRCUIT BY HON. CHRISTOPHER COX, A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF CALIFORNIA

    Reprensentative Cox. Thank you, Madam Chairman. I am happy 
to be here with Senators Inouye and Akaka in support of 
President Bush's nomination of Richard Clifton to the Ninth 
Circuit Court of Appeals. Like you, I am a resident of the 
Ninth Circuit and I am very, very pleased that Mr. Clifton, 
whom I have known for a quarter century, is going to become a 
judge of that court, if, as and when the Senate votes to 
confirm him.
    I have known Rick for 25 years. I have known his, wife, 
Terrie, for 14 years, and most importantly I have known David 
Clifton and Katherine Clifton for their entire lives. I think 
it is a very nice thing that they all here from Honolulu with 
us today.
    As you have heard from Senator Akaka, Rick Clifton is an 
outstanding lawyer, a legal scholar, a civic leader, and he is 
very involved in his community and widely admired by his peers 
in the profession. But it must be said at the outset that more 
than all of that, and more even than his lifelong support of 
the Chicago Cubs, Rick Clifton is a dedicated husband and 
father. It is a special honor, as I said, for that reason, to 
have his entire family here with us today.
    When I first met Rick Clifton in 1977, I served as law 
clerk to U.S. Court of Appeals Judge Herbert Choy, the first 
Asian American Federal appellate judge in America. Rick had 
preceded me as Judge Choy's law clerk in 1975, after graduating 
with honors from Princeton University and Yale Law School.
    By 1977, when I met him, he was a lawyer in private 
practice with Cades, Schutte, Fleming and Wright, one of the 
most prestigious law firms in Hawaii. He became a partner with 
Cades Schutte in 1982. In the last two decades, his practice 
has focused on commercial litigation, with an emphasis on 
complex litigation and appellate practice. Today, Richard 
Clifton is recognized as one of Hawaii's premier trial and 
appellate lawyers.
    Beyond the courtroom, he has been active in the bar. He has 
served on the board of directors of the Hawaii Women's Legal 
Foundation, and remains a member of that organization. He 
served the State bar as chairman of its Special Committee on 
Quality of Life for 3 years. He is a leader of the Hawaii 
Chapter of the American Judicature Society and serves as a 
director of the Ninth Circuit Historical Society. He is a 
delegate to the Judicial Conference of the U.S. District Court 
for the District of Hawaii. Previously, he has served as a 
delegate to the Hawaii State Judicial Conference.
    He has also been a teacher of law. For many years, he was 
an adjunct professor of law at the University of Hawaii William 
S. Richardson School of Law, where he taught appellate 
advocacy.
    But neither teaching law nor practicing law, nor even 
serving the bar, was enough to consume Rick Clifton's energies 
for public service. He served not just on the board of 
directors, but as chairman of Hawaii Public Radio for 5 years, 
from 1995 to 2000. He remains both a director and a member of 
the executive committee of the board of Hawaii Public Radio.
    Even more taxing perhaps was his service as a Cub Scout den 
leader and a youth soccer coach and referee. I am certain that 
refereeing youth soccer games provided exceptionally valuable 
experience for his commercial litigation practice, and should 
serve him especially well as well on the Federal bench.
    From the time I met Richard Clifton a quarter century ago, 
I have been impressed with his quickness of mind, his ready 
grasp of even the most difficult legal concepts, his always 
calm and reasoned approach to issues, and his honesty and 
fairness. In these exceptional personal qualities, he is much 
like Judge Herbert Choy, whom we both deeply admire and from 
whose powerful example of integrity we both learned at a 
formative point in our careers.
    When confirmed by the Senate, Rick Clifton will become only 
the second Hawaiian ever to serve on the Ninth Circuit. I 
cannot imagine a more qualified person.
    Madam Chairman, Senator Specter, it is both a privilege and 
honor this afternoon to join with Senators Inouye and Akaka in 
introducing Rick Clifton to this committee. He will be an 
outstanding Federal judge because he is an outstanding 
individual.
    I thank you.
    Senator Cantwell. Thank you, Congressman Cox, for your 
comments.
    Congressman Holden?

  PRESENTATION OF JOHN E. JONES, III, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE MIDDLE OF PENNSYLVANIA BY HON. TIM HOLDEN, A 
   REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Holden. Madam Chairwoman, nice to see you again.
    Senator Cantwell. Nice to see you.
    Mr. Holden. Madam Chairman, it is an honor and a privilege 
for me to be here to support my constituent and my friend, John 
Jones, and I say that with all sincerity. As the Pennsylvanians 
who are here today know, John and I were political opponents in 
1992, but I stand here today in strong support of John Jones' 
nomination to be a district judge in the Middle District of 
Pennsylvania.
    I have known John Jones for well over 20 years. I have 
known him in a professional manner. Before coming to Congress, 
I served as the sheriff of Schuylkill County, and during that 
time period John was a practicing attorney in Schuylkill 
County, as well as a public defender. I can tell you that all 
the court-related staff who worked with John during those years 
have the highest respect for the dedication, for the sincerity, 
and for the real drive that he performed his duties with 
representing his clients.
    I also just want to comment briefly on what Senator Specter 
and Senator Santorum have said about John's duty as chairman of 
the Pennsylvania Liquor Control Board. As they have said, that 
is not an easy position, but he has done an outstanding job and 
he has made all Pennsylvanians, and particularly all Schuylkill 
Countians proud of the job that he has done.
    I am not an attorney, so I don't feel all that qualified to 
comment on John's ability in the courtroom. But I come here 
today with the strongest possible support and recommendations 
from three members of the bench in Schuylkill County.
    Judge Joseph F. McCluskey, who is now in senior status on 
the Commonwealth Court and a former president judge of 
Schuylkill County, Judge William Baldwin, who is now the 
president judge in Schuylkill County, and Judge D. Michael 
Stein, who is a sitting judge in the Court of Common Pleas in 
Schuylkill County, have all spoken to me in the last 24 hours 
and asked me to relay to you and to the committee their 
strongest support of the qualifications of John and how they 
believe he would really be an asset to the Middle District 
Court.
    Finally, Madam Chairwoman, I also would like to bring the 
recommendation of a former prosecutor in Schuylkill County, Cal 
Shields, who was the district attorney for 16 years and fought 
neck-and-neck, head-to-head with John in many, many cases. They 
also go back to their days as undergraduates at Dickinson 
College, and he also sends his highest possible 
recommendations, and believes truly that John would be a 
tremendous asset to the court.
    Madam Chairwoman, I want to note that all four of those 
individuals are Democrats, so I want you know that this is a 
bipartisan effort. People in Schuylkill County are proud to 
have John Jones sit on the Federal court, and again I ask the 
committee to move the nomination and take it to the Senate 
floor.
    I thank you for the opportunity today.
    Senator Cantwell. Thank you, Congressman Holden.
    Congresswoman Hart?

PRESENTATION OF JOY FLOWERS CONTI, NOMINEE TO BE DISTRICT JUDGE 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. MELISSA HART, 
  A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

    Representative Hart. Thank you, Madam Chairwoman. Fellow 
members and Senators Specter and Santorum, I am honored to be 
here as well to reintroduce, as she has already been introduced 
to you, Joy Flowers Conti, who is the nominee for the U.S. 
District Court in western Pennsylvania.
    I first met Joy Conti as a young attorney in Pittsburgh 
just beginning my practice. She at that time already had a 
stellar professional and personal reputation within our 
community, and in the years since she has certainly built on 
that reputation. She embodies all that is unique and great 
about Pennsylvania. She has a strong and proud work ethic, 
coupled with an important commitment to helping her community, 
as her resume clearly indicates.
    She was mentioned by the Senators as being a pioneer for 
women in the law, being the first at her firm. But she has also 
worked to improve the profession for women as a beginning 
member of our women's bar association, and also contributing a 
significant amount to the education of young women as a 
professor at the Duquesne University School of Law, but also 
furthering our legal knowledge as attorneys by giving a 
significant amount of her time in continuing education as a 
seminar speaker.
    Her character and her dedication have well served the 
clients of her law practice. She also has served the 
individuals aided by the groups on which she voluntarily serves 
as a board member throughout the community, whether it is 
Catholic Charities or serving on one of her child's sport 
team's mother's groups; I believe football mothers, in fact, at 
this time.
    She has always been respected by the legal community in 
Allegheny County, where I have practiced law, and is just an 
outstanding woman. Her talents and her dedication will serve us 
all with honor on the U.S. district court and I recommend her 
highly.
    Thank you for allowing me to be here.
    Senator Cantwell. Thank you, Congresswoman Hart, and again 
thank you for taking time out of your schedules. We hope you 
will look favorably on those Senate bills that we are passing 
over to the House and we are glad that you made time today to 
talk about these important nominees.
    Thank you.
    I would like to call up Richard Clifton.
    If, Richard, you could just stand to be sworn in, do you 
swear that the testimony you are about to give before the 
committee will be the truth, the whole truth and nothing but 
the truth, so help you God?
    Mr. Clifton. I do.
    Senator Cantwell. Welcome, Mr. Clifton, to the committee. 
We obviously like nominees to take the opportunity to introduce 
their families and friends who have traveled with them. I can't 
think of too many people that could have traveled farther than 
you and your family, so if you would please take that 
opportunity.

STATEMENT OF RICHARD CLIFTON, OF HAWAII, NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE NINTH CIRCUIT

    Mr. Clifton. Thank you, Senator. I would like to start with 
my family, seated directly behind me: my wife, Terrie; our 
children, David and Katherine. Tied with us for the record of 
longest distance, I am happy to recognize U.S. District Judge 
Helen Gillmor, of the District of Hawaii, who I confess was in 
Washington for other business but took advantage of the 
opportunity to be here today--other business, had to leave.
    And then there are several people from my past who have 
promised to be discreet about my past, dating back to friends 
in high school. Roger Wilson from Chicago and Jim Lutton from 
Syracuse and Jim's son, Michael Lutton, are all here; my 
college roommate, David Whitman, from Baltimore.
    And then as you heard, I am a member of what we call the 
Federal family of Judge Choy, the only Hawaii resident to sit 
on the Ninth Circuit to date. Representative Cox is one of my 
colleagues there, and two other of my colleagues from that 
family are here, Anna Durand Kraus and Doug Jordan, both of 
whom are lawyers here in Washington.
    I don't know if somebody else has slipped in while I was in 
the front, but I think that is it.
    Senator Cantwell. Thank you, and welcome to all of you. We 
appreciate you being here.
    Obviously, Mr. Clifton, as a nominee to the circuit court 
of appeals, you have not previously served as a judge so you 
don't have a record of decisions that the committee can 
evaluate regarding your commitment to precedent. With that in 
mind, could you just comment, in your opinion, on how strongly 
should judges follow precedent set in previous cases, and does 
the commitment to following precedent change with the type of 
court, whether it is the district court level or the court of 
appeals? If you could comment on that?
    Mr. Clifton. I would be happy to, Senator. A court of 
appeals such as the one to which I have been nominated is 
absolutely obligated to follow precedent set down by the U.S. 
Supreme Court. It is also obligated, at least in the case of 
the Ninth Circuit, to follow established Nine Circuit 
precedent. So if there is a previous Ninth Circuit decision, an 
individual judge or an individual panel of three judges is not 
at liberty to alter or overturn that decision.
    The court's procedures require than an en banc court be 
called if there is to be a reversal or overturning of prior 
Ninth Circuit precedent. So if I am given the opportunity to 
serve, I would be bound by and would be committed to comply 
with all precedent from the Supreme Court and all prior Ninth 
Circuit Court decisions.
    I apologize for my voice. I picked up a cold on the flight 
here, I am afraid.
    Senator Cantwell. You are likely aware of a trend of 
decisions by the Supreme Court that have basically questioned 
Congress' constitutional authority to pass Federal regulations.
    In your opinion, are there any Federal statutes that go 
beyond Congress' enumerated powers under the Constitution?
    Mr. Clifton. I am not sure that I have a good answer to 
that question, Senator. I haven't considered it. I am aware of 
the recent decisions of the U.S. Supreme Court which have 
called into question Congress' exercise of the commerce power, 
for example, as to whether a particular statute properly falls 
within the ambit of the power to regulate interstate commerce, 
and suggestions that perhaps stronger connections have to be 
made or more explicit findings might be useful. I am not aware 
and have not identified any statutes that would run afoul of a 
similar decision, so I am afraid I cannot identify any others 
to you.
    Senator Cantwell. Thank you. One issue that we have 
obviously had a lot of dealings with on this committee so far 
is the issue with regard to personal privacy, everything from 
the appropriate level of government intervention into personal 
decisions as it relates to the PATRIOT Act that we passed, to 
other concerns about how businesses handle personal 
information.
    Do you believe there is a constitutional right to privacy 
and can you just describe, if you do believe there is a 
constitutional right, where that exists?
    Mr. Clifton. Well, it is my understanding from Supreme 
Court decisions which I would be obligated to follow that there 
is, in fact, a constitutional right of privacy that I think 
comes primarily from the 14th Amendment and the due process 
rights of all citizens.
    I should say that my own State of Hawaii has a separate 
constitutional right of privacy. And there is no such separate 
articulated right within the U.S. Constitution, but the Supreme 
Court has found it within the document and I join that opinion.
    Senator Cantwell. Thank you.
    Senator Specter, do you have questions for Mr. Clifton?
    Senator Specter. Yes, thank you very much.
    The Supreme Court of the United States has stricken 
considerable legislation on the grounds that Congress hasn't 
``thought it through,'' challenging what I consider to be 
fairly extensive records having been made in the legislative 
process.
    Have you followed those decisions?
    Mr. Clifton. I have read a good number, I believe, of the 
opinions that you are referring to.
    Senator Specter. What are your views as to the scope of a 
congressional record which is necessary in order to avoid 
having them stricken on those constitutional grounds?
    Mr. Clifton. Well, Senator, I believe the starting point 
ought to be the assumption, indeed the legal presumption, that 
an enactment of Congress is presumed to be constitutional, and 
I don't believe any judge should lightly entertain the notion 
that an act exceeds the power of Congress.
    There certainly are constitutional limitations on the power 
of Congress, as with each of the branches of Government. But 
the starting point, I think, would be an assumption that 
Congress had reason to do what it did, because it is Congress 
that is supposed to make the laws, and exercised power that was 
properly granted to it under the Constitution.
    Senator Specter. What standing do you believe the Supreme 
Court has to conclude that Congress hasn't thought some matter 
through? Is the thought process of the Court superior to the 
thought process of the Congress?
    Mr. Clifton. Well, as a court of appeals judge, I would be 
legally bound to follow Supreme Court precedent, so I don't 
want to call that into question. I don't believe a 
constitutional standard exists as to whether or not Congress 
has sufficiently thought things through. I don't know that 
that--in fact, indeed I don't believe that is a proper basis 
for striking down any statute enacted by Congress as being an 
excess of congressional power.
    Senator Specter. There has been considerable disclosure of 
people who have had their innocence established through DNA, 
and there are many who are on death row who have been 
exonerated by DNA evidence. Many of the States have been very 
slow to give DNA tests to inmates who are serving for very long 
periods of time.
    One Federal judge made a finding that it was a 
constitutional right to have DNA evidence, part of due process, 
and a number of bills have been introduced on the subject, some 
trying to encourage the States to give DNA tests. I have 
introduced legislation to establish access to DNA testing as a 
constitutional right pursuant to section 5 of the 14th 
Amendment, which gives Congress the authority to legislate in 
furtherance of due process.
    You might want to submit a written response to this 
question, or perhaps you would care to answer it now. Do you 
think that the one district court which found a constitutional 
right to have DNA testing is accurate?
    Mr. Clifton. Senator, let me start by observing that Hawaii 
does not have the death penalty, and I became aware when I was 
asked about and considered accepting the nomination to the 
Federal bench that there is a Federal death penalty, and 
further that the Federal courts review State convictions. Other 
States within the Ninth Circuit do have the death penalty and 
it becomes an increasing part of any judge's responsibility to 
deal with those issues.
    Representative Cox revealed that I am a lifetime fan of the 
Chicago Cubs, and because of that I daily check the Chicago 
Tribune, which had a series a couple of years ago on what is 
the case in Illinois and reached the conclusion that there were 
as many innocent people on death row in Illinois as there had 
been people put to death, a series which ultimately led 
Governor Ryan to impose a moratorium on death penalties in 
Illinois.
    There must be enormous concern. The Supreme Court has 
stated clearly that the death penalty is constitutional, and it 
would be my obligation as a court of appeals judge to adhere to 
that case law. Yet, any judge has to take seriously the 
responsibility that he or she has when considering a matter of 
literally life and death.
    I don't know that I can comment to the precise question you 
pose because it could come to me as a court of appeals judge; 
that is, whether there is a constitutional right to DNA 
testing. But I will observe that at least from my reading, I am 
not aware of a challenge to Federal convictions of the same 
kind there has been a challenge to State convictions.
    I think such things as the Federal Public Defender Service 
and the resources given to defense lawyers within the Federal 
system makes an enormous difference in at least reducing the 
possibility that an innocent man is convicted and sentenced to 
death, and I think any judge considering cases brought before 
the court needs to be mindful of that.
    Senator Specter. Well, I think your observation about the 
difference in procedures in the Federal court is accurate. But 
as a court of appeals judge, you would have habeas corpus cases 
which come up through the State.
    I believe that the death penalty is a deterrent, and I 
believe that having been district attorney of Philadelphia for 
some 8 years. I am not going to take the time now to give my 
reasons, but I think that the death penalty will be lost if it 
is not administered properly and if there are not tests given 
for DNA and adequate counsel provided, which I have taken up as 
a legislative matter.
    Beyond protecting the death penalty for society's interest, 
it is a matter of fundamental fairness for the defendant not to 
be in jail if there is the potential for exonerating evidence 
to come up through DNA testing which wasn't available at the 
time of his conviction and original sentencing.
    Well, on to more serious matters, how did you become a Cub 
fan?
    [Laughter.]
    Mr. Clifton. Exposure through my father, and proximity.
    Chairman Leahy. Your answer may determine whether you get 
through or not.
    [Laughter.]
    Mr. Clifton. My father was a Cub fan and he inflicted it on 
me, as I am slowing inflicting it upon my own son.
    Senator Cantwell. But coming to the Ninth Circuit, don't 
you think you will pick a Ninth Circuit West Coast team?
    Chairman Leahy. Trust me, you don't want to answer that 
question.
    [Laughter.]
    Mr. Clifton. They have had a good team in Seattle lately, 
so maybe I will find another team.
    Senator Cantwell. Thank you.
    Senator Specter. What was Stan Hack's lifetime batting 
average?
    Mr. Clifton. My father's generation, but I can probably 
give you Billy Williams. I am afraid I can't give you Stan 
Hack.
    Senator Specter. Are you a native Chicagoan?
    Mr. Clifton. No. My family moved there when I was 10, and 
so I lived there until I went to college. Those were probably 
the critical years of cementing the Cub fandom.
    Senator Specter. Why did you pick the Yale Law School?
    Mr. Clifton. Because at the time I believed that it was the 
best law school in the country and----
    Senator Specter. Now, you are in trouble with everybody but 
me.
    [Laughter.]
    Mr. Clifton. I did say ``at the time.'' I was a foolish 21-
year-old at that time.
    [Laughter.]
    Senator Specter. Thank you very much, Mr. Clifton.
    Mr. Clifton. Thank you, Senator.
    Senator Cantwell. Thank you.
    Senator Leahy has joined us. Senator Leahy, do you have 
comments or questions?
    Chairman Leahy. Both, Madam Chair. I obviously welcome 
everybody here. I will put my whole statement in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Leahy. I do have a couple of questions of Mr. 
Clifton, but I was also glad to see Ms. Conti's nomination.
    I commend you for taking the time to do this. Earlier in 
the week, we were told that my friends on the other side of the 
aisle would object, as they have the right to under the Senate 
rules, to us holding hearings today. I am glad they did not 
because I know a lot of you came from long distances to be 
here.
    I am glad Ms. Conti is here. It is the first hearing on a 
nominee to the Western District of Pennsylvania since 1994. I 
mention that because during the past 6 years under other 
control of the Senate, no nominee from the Western District 
received a hearing. In fact, one of the nominees to the Western 
District, Lynette Norton, waited for almost 1,000 days. She did 
not get a hearing or a vote, and she died, never knowing how we 
might have voted. So I was glad that we could move far faster 
on Ms. Conti.
    I remember when Judge Legrome Davis was nominated by 
President Clinton, the committee did not give him a hearing for 
868 days, notwithstanding the very strong support he had from 
the senior Senator from Pennsylvania, who had worked very hard 
to get him a hearing. In fact, I give Senator Specter credit 
for getting the President to renominate Judge Davis earlier 
this year. Unfortunately, during the other time he couldn't get 
a hearing or a vote.
    In fact, the junior Senator from Pennsylvania testified 
that Judge Davis did not get a hearing because local Democrats 
objected. I was the ranking Democrat at that time and I never 
heard that before. But I am glad he got through and I am glad 
that we were able to get Ms. Conti through faster.
    Let me ask you this, Mr. Clifton, on the question of DNA. 
Obviously, that is not going to be dispositive in a lot of 
cases. I think you would agree with me that there will be an 
awful lot of cases, murder cases and others, in which there 
will be no DNA. I mean, I wouldn't want us to fall in this trap 
of thinking that we can determine guilt or innocence in a case 
because of DNA, because in a lot of cases there just will be no 
DNA evidence available.
    Would you agree with that?
    Mr. Clifton. I agree, Senator.
    Chairman Leahy. Just as a lot of times in a trial people 
say, well, let's wait for the fingerprint evidence, when in a 
criminal case, a large majority of them, there is no 
fingerprint evidence either. Would you agree with that?
    Mr. Clifton. Yes, sir.
    Chairman Leahy. Would you also agree, though, that what can 
be the most important thing is to have competent counsel if 
somebody is charged with a capital crime? Would you agree with 
that? I am talking about competent counsel on both sides.
    Mr. Clifton. I would certainly agree, and indeed from the 
defendant's perspective one of the problems that has been 
identified in many cases over the past few years where 
apparently innocent persons have been convicted is the lack of 
competent counsel at the time of trial and the lack of 
resources the defendant needs to defend himself effectively.
    Chairman Leahy. Wouldn't it be far more likely if you have 
competent counsel, if there is DNA evidence or fingerprint 
evidence or something like that, the counsel would have made 
sure that was presented?
    Mr. Clifton. DNA may be unique because it is becoming known 
to us in a way that was not known before, and so----
    Chairman Leahy. I am thinking of prospectively.
    Mr. Clifton. Correct. Certainly, now that we know DNA we 
evidence exists, competent counsel would be expected to pursue 
that avenue if it had any applicability in the given case, if 
they had evidence they could work with that would speak to 
guilt or innocence.
    Chairman Leahy. I mention the need for competent counsel. 
There was a murder case in Texas where, in effect, the person 
who was convicted appealed, supplying irrefutable evidence that 
his attorney slept through most of the trial. The Texas Supreme 
Court said the Constitution requires him to have counsel; it 
does not require the counsel to be awake.
    You are not going to be ruling on the Texas Supreme Court 
case, but as a practicing lawyer, would you feel that counsel, 
to be competent, should, at a minimum, stay awake during the 
trial?
    Mr. Clifton. You would hope so. I will confess having sat 
in proceedings where sometimes I wondered if I wanted to stay 
awake. But you think a criminal trial--you would hope that 
counsel would be paying enough attention to follow what was 
happening.
    Chairman Leahy. You realize this desire to doze off during 
a hearing never occurs in the U.S. Senate.
    [Laughter.]
    Mr. Clifton. Not when I am sitting here.
    Chairman Leahy. We are usually dealing with billions of 
dollars and things like that, but not with somebody's life.
    Madam Chair, I just wanted to compliment you for holding 
this hearing. I know you had a dozen other places you were 
supposed to be and I do appreciate you doing it. I appreciate 
the fact that the Senator from Pennsylvania has----
    Senator Cantwell. Three nominees.
    Chairman Leahy[continuing]. Three nominees here, and that 
we are able to start moving finally on nominees for 
Pennsylvania, a wonderful State.
    Senator Cantwell. Thank you, Senator Leahy.
    Thank you, Mr. Clifton, for your answers to the questions, 
and you are excused.
    Mr. Clifton. Thank you, Madam Chair.
    [The biographical information of Mr. Clifton follows:]

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    Senator Cantwell. I would like to call up now the three 
district court nominees--Joy Conti, Christopher Conner, and 
John Jones--and if you would please stand so we can swear you 
in?
    Do you swear that the testimony you are about to give 
before the committee will be the truth, the whole truth and 
nothing but the truth, so help you God?
    Mr. Conner. I do.
    Ms. Conti. I do.
    Mr. Jones. I do.
    Senator Cantwell. Thank you.
    As with Mr. Clifton, we appreciate that family and friends 
have joined you on this journey to Washington for this hearing 
and if you would like to each take the opportunity to introduce 
your family and friends, we will give you that opportunity.
    Mr. Conner?

STATEMENT OF CHRISTOPHER C. CONNER, OF PENNSYLVANIA, NOMINEE TO 
   BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

    Mr. Conner. Thank you, Madam Chair. I am here with my wife 
and four children--my wife, Kathy, and my four children, Greg, 
Lauren, Ben, and Casey. My parents are here from Harrisburg, 
Pennsylvania, Marcia and Ben Conner, as is my sister, Mona 
Conner, who is an artist in Brooklyn, New York. I also have my 
sister-in-law's husband, Eric Levine, here from Frederick, 
Maryland.
    I have been blessed with some long-time friendships from 
Cornell University and three of my friends from Cornell are 
here--Shaun Eisenhauer, Gregory Strub, and Samuel Fisher. I 
also have some law school classmates and long-term friendships 
that have developed over time, and one of the sitting Common 
Pleas judges in Pennsylvania, Judge Tom Kistler, is here with 
his wife, Mary Jane. And my friend, Randall Bachman, with his 
wife, Lenore, and his daughter, Lauren, are here.
    Thank you, Madam Chair.
    Chairman Leahy. No wonder there is such a crowd here today.
    Senator Cantwell. Thank you, Mr. Conner.
    Ms. Conti?

STATEMENT OF JOY FLOWERS CONTI, OF PENNSYLVANIA, NOMINEE TO BE 
    DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA

    Ms. Conti. Thank you. It is an honor to be here, and a 
privilege. I appreciate the opportunity to introduce my family 
and colleagues and friends.
    First of all, I would like to introduce my husband, Anthony 
Thomas Conti; as we call him, Tony. He is my husband for 31 
years and a big supporter of mine. I have my three sons with me 
as well. My oldest son, Andrew, Drew, is 26; my second son, 
Michael, who is 23; and my youngest son, Gregory, who is 16. He 
is the football player presently. All my other boys have also 
been football players in high school.
    I am also fortunate to have with me my mother, Elizabeth 
Rodgers. She is living in Richmond, Virginia, and in 
Pittsburgh, Pennsylvania. I am happy that she is able to join 
us today. My mother-in-law, Ann Conti, is also here and she has 
been a big help to us throughout the years.
    I am fortunate to have my brother here, Lieutenant General 
Robert Flowers, who has the command of the Corps of Engineers 
and is presently a resident in the District of Columbia. His 
wife, Lynda, is here as well, and my nephew, Matt Flowers, who 
is my brother's youngest son, is here.
    I have my two sisters. My sister, Kathy Mayo, is here with 
her husband, Bill Mayo, and their son, Bill Mayo. They are from 
Richmond, Virginia. My youngest sister, Elizabeth, Betsy, 
Horvat is here with her husband, Ken Horvat, and they have 
traveled from Pittsburgh, Pennsylvania, to be with me today.
    I also have my husband's brother, Mark Conti, and his wife, 
Diane Conti. They have come down from Beaver Falls, 
Pennsylvania, and with them are their two children, Kevin 
Conti--and his wife, Jackie Conti. My niece, April Conti, and 
her fiance, Jeremy Dean, are also here today.
    I am fortunate to have a long-time friend of mine from 
Pittsburgh who was a predecessor of mine as the President of 
the Allegheny County Bar Association, and we have been friends 
for many years, J. Frank McKenna. He is with the law firm of 
Reed Smith. I am fortunate that he is here today, as well.
    My fellow shareholder at Buchanan Ingersoll, Sister Melanie 
DiPietro, is here with me. I am happy that she could join us. 
And last but not least is my colleague at Buchanan, a personal 
friend, my project assistant, Sarah Pankey. I am also pleased 
to have my step-niece, Angela Pegram, who is going to be--who 
just took her last exam at Catholic University Law School and 
will be joining Jones Day in their D.C. office after she passes 
the bar.
    Have I forgotten anyone?
    [Laughter.]
    Senator Cantwell. Thank you, Ms. Conti.
    Chairman Leahy. If I might, I apologize for the 
mispronunciation of your name.
    Ms. Conti. That is fine. We go variously, Conti or Conti, 
so we answer to both.
    Chairman Leahy. I grew up in an Italian American family and 
many friends of mine in Vermont pronounce it Conti, and I 
apologize.
    Ms. Conti. Well, I pronounce it that way, too, but they 
go--in Elwood City, where my husband is from, it is Conti. In 
Pittsburgh, it is pronounced Conti, so do we answer to both.
    Chairman Leahy. I don't feel so badly.
    [Laughter.]
    Senator Cantwell. Well, thank you, Ms. Conti.
    Mr. Jones, if there is anybody left in the room----
    [Laughter.]
    Senator Cantwell. Thank you for being here and we would 
love to hear introductions of your friends and family.

STATEMENT OF JOHN E. JONES, III, OF PENNSYLVANIA, NOMINEE TO BE 
     DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

    Mr. Jones. I don't have as many, Madam Chairwoman. It is an 
honor to be before this committee, and my name is a little 
easier for everybody, but I have a number of folks here who 
have honored me by their presence.
    First and foremost, my family: my wife, Beth, and my 
daughter, Meghan, and my son, John. John has the space shuttle 
tie on right behind me. My parents are deceased, unfortunately, 
but I am very honored to have my father-in-law here, Emil 
Feryo. He is seated behind my wife and children; my nephew and 
his grandson, Emil Feryo. And my sister-in-law, Amie Feryo, is 
here as well.
    I have a group of friends from the Pennsylvania Liquor 
Control Board--my assistant, Emma Pettis; Patty Lookinbaugh; 
Steve Schmidt; Darryl Stackhouse, our Director of 
Administration from the Pennsylvania Liquor Control Board. 
Patty Lookingbaugh's daughter, I think, is here also.
    I also have a dear friend of mine from home, Frank 
Schoeneman, from Schuylkill County. And Representative Bob 
Allen from Schuylkill County, a member of the Pennsylvania 
State House of Representatives, is here with me today.
    Have I forgotten anybody? I hope that I have not. I 
apologize if I have, but thank you, Madam Chairwoman.
    Senator Cantwell. Well, thank you, and welcome to all of 
you. We appreciate you attending this important hearing.
    I will start, I think, with Ms. Conti and Mr. Conner.
    Ms. Conti, your professional experience as a lawyer has 
focused on general corporate matters, with a concentration in 
bankruptcy. Mr. Conner, your experience has mostly been in 
general civil litigation, I believe. Thus, you both have 
limited criminal experience. As you know, a significant portion 
of the Federal judicial docket deals with criminal matters.
    Could you tell us how you plan to prepare to handle complex 
criminal cases and what steps you will take to prepare for the 
challenge of handling the criminal matters that will be before 
you?
    Ms. Conti. Madam Chair, that is a matter that I have given 
some very serious consideration to. I have spoken with members 
of the Federal bench in Western Pennsylvania and I have talked 
with them about what I would need to do personally to prepare 
for that. They have assured me that I would have their full 
assistance.
    I know that the Federal Judicial Center, as well as the 
Administrative Office, has very fine educational programs which 
I would be fully committed to participating in. I am a quick 
study. I have entered various areas of the law and am able to 
understand the read very diligently, and I would work very hard 
to become competent in the areas of criminal law and procedure 
as soon as possible.
    Mr. Conner. Madam Chair, I would make the same commitment 
that Ms. Conti has described, and make the same commitment 
toward hard work and getting up to snuff in all of the areas of 
criminal law that I am not currently exposed to, and relying 
also on the resources of the Federal Judicial Center.
    I have also spoken with the members of the court of the 
Middle District and they have encouraged me to seek their 
counsel if I am fortunate enough to be confirmed and I 
certainly would do that.
    Senator Cantwell. Thank you.
    I see that we have been joined by Senator Inouye, from 
Hawaii.
    Senator if you would join these three distinguished 
nominees at the table and give your comments on Richard 
Clifton, whom we just heard from, we would be honored to hear 
those comments.
    Senator Specter. He has done very well so far, Senator 
Inouye.

   PRESENTATION OF RICHARD CLIFTON, OF HAWAII, NOMINEE TO BE 
CIRCUIT JUDGE FO THE NINTH CIRCUIT BY HON. DANIEL K. INOUYE, A 
             U.S. SENATOR FROM THE STATE OF HAWAII

    Senator Inouye. Madam Chairman and members of the 
committee, I am pleased to present to you Richard R. Clifton, 
Esquire, a very distinguished member of the State of Hawaii who 
has been nominated by the President to serve on the Ninth 
Circuit Court of Appeals.
    He is here this afternoon with his wife, Teresa, whom you 
have just seen, and two children, Katherine and David.
    Mr. Clifton was born in Framingham, Massachusetts. He 
received his bachelor of arts degree from Princeton and his 
juris doctor from Yale Law School. He is currently a 
distinguished member of the Hawaii State Bar Association and a 
partner in the firm of Cades, Schutte, Fleming and Wright, and 
until recently was legal counsel for the Hawaii Republican 
Party.
    I have met with Mr. Clifton, I have met with his family, 
and I am certain he will serve this court with much distinction 
and integrity. So I recommend his confirmation by this 
committee and by the U.S. Senate.
    Thank you very much.
    Senator Cantwell. Senator Inouye, thank you for being here. 
Mr. Clifton introduced his family and answered questions from 
the committee, all of which I think were very well received by 
the committee, including his comments on major league baseball 
teams in America, and we look forward to proceeding.
    Senator Inouye. Madam Chair, when do I vote for him?
    [Laughter.]
    Senator Cantwell. Well, I am sure there will be a Judiciary 
Committee meeting shortly after today's hearing on these 
nominees that we heard testimony and comments from today. So 
thank you very much for being here.
    Senator Inouye. Thank you, ma'am. May I be excused?
    Senator Cantwell. Yes.
    I thank the panel for their indulgence in allowing our 
colleague to give his comments on Mr. Clifton's nomination.
    Mr. Jones, you have served as the Chairman of the 
Pennsylvania Liquor Control Board since 1995, I believe it is.
    Mr. Jones. That is correct.
    Senator Cantwell. In that capacity, you have had, I am 
sure, to develop strategies on how to reduce the risks of 
under-age drinking of young people. Could you tell us about 
that, some of your strategies and what has worked in order to 
prevent high-risk drinking?
    Mr. Jones. We have had an emphasis, Senator, on under-age 
drinking and binge drinking for the last 7 years of my tenure 
and I have been very proud of our efforts. I don't want to go 
on excessively long about them, but in a nutshell, Senator, 
what we have done is created, among other things, over 70 
campus-community coalitions across Pennsylvania where we have 
put together college administrators, law enforcement officials, 
students, liquor licensees, and others to come up with 
strategies.
    We believe that you need to have enforcement, but that you 
can't arrest your way out of the problem of under-age drinking, 
so we are getting to the culture, we think, on these college 
campuses. I believe that under-age drinking and binge drinking 
by our youth is one of the largest health risks that we face in 
the United States today.
    Among other things that we have done have been to train 
licensees in good practices. We have created a statewide 
coalition that will survive me, if I am fortunate enough to be 
confirmed, Pennsylvanians Against Under-Age Drinking, which is 
a broad coalition of groups all across the Commonwealth of 
Pennsylvania.
    Fundamentally, I think what we have done is we have taken a 
problem that, although it had some attention 7 years ago, I 
think we have put it on the radar screen for all of the United 
States. And I am very happy to say that a lot of what have done 
in Pennsylvania on the Liquor Control Board has been picked up 
nationally by other States and duplicated, and that is the 
highest form of flattery, I think, that we have been copied and 
emulated in other States.
    Senator Cantwell. Thank you.
    Senator Specter, do you have questions for the nominees?
    Senator Specter. Yes, thank you very much.
    Ms. Conti, when were you hired by Kirkpatrick and Lockhart, 
thus becoming the first woman to be employed by them?
    Ms. Conti. I was the first woman summer associate in the 
summer of 1972, and after I returned from clerking for a 
justice on the Pennsylvania Supreme Court, I was the first 
woman lawyer hired in 1974.
    Senator Specter. Well, there has been quite a dramatic 
change on the hiring of women from law schools and generally, 
and quite a dramatic change in the number of women who go to 
law school. I know in my class there were 4 women out of 125, 
and today I understand the statistics are about 50-50.
    How many were in your class at Yale?
    Mr. Clifton. About 25 percent.
    Senator Specter. So that shows some improvement, but it is 
surprising that it would take until 1974 for a major firm--how 
many lawyers did the firm have when you were hired?
    Ms. Conti. At that time, they were considered to be quite a 
large firm and we had 35 lawyers. The largest firm in 
Pittsburgh at that time was Reed Smith and they had 50, and 
that was in the summer. When I came back in 1974, Kirkpatrick 
and Lockhart had approximately 50 lawyers. Today, they have 
over 450, perhaps over 600.
    Senator Specter. When I joined Barnes, Decker, Price, 
Meyers and Rhodes in 1956, that was the same year that the 
first woman was hired there, although come to think of it, 
there was a woman partner before. When I was elected D.A. in 
1965, I made it a top priority to hire a woman, and then women, 
but in the first group a woman.
    I was surprised to hear recently that Justice Ruth Bader 
Ginsburg, when she graduated from law school, got a job in a 
law firm as a secretary, couldn't get a job as a practicing 
lawyer. So it is nice to see times changing.
    Ms. Conti. Yes, it is, and we need to have more women 
staying in the practice of law, practicing and achieving levels 
of leadership.
    Senator Specter. Mr. Conner, you have extensive litigation 
experience which should stand you in good stead. Any ideas 
about how to speed up the civil docket?
    Mr. Conner. Things are working reasonably well in the 
Middle District. In terms of speeding up the civil docket 
there, I think if I were to follow the orders, scheduling 
orders that are currently in place among the members of the 
bench, I would be well served.
    In terms of overall prompt disposition of cases, I concur 
in the statement that justice delayed is justice denied, and I 
would try to move those matters before me as quickly as I 
could, giving deference to the parties and their rights to 
litigate their case.
    Senator Specter. Any thoughts on the limitation of 
discovery, such as excessive interrogatories?
    Mr. Conner. There are some limitations by local rule in the 
Middle District and I would follow those limitations. I think 
that the Federal judiciary has gotten some excellent--has 
undergone some excellent changes in connection with Rule 26 and 
the mandatory disclosures under Rule 26, and I think maybe to 
the extent that could be expanded that would be terrific.
    Senator Specter. Mr. Jones, how long did you practice as a 
sole practitioner?
    Mr. Jones. I practiced as a solo practitioner, Senator, 
from 1986 to just 2 years ago, when I took on an associate.
    Senator Specter. How did you handle all of the complexities 
of the modern law?
    Mr. Jones. You commented in your introduction that I am a 
somewhat--I am not sure that you used this word, but I am an 
anachronism as a solo practitioner and in a small firm. But it 
is difficult and you have to know your limitations and you have 
to be dedicated, and it entails that you go into your office at 
very early hours and you stay late hours and you work 
Saturdays. But it has been a very rewarding life for me.
    I have been a--I describe myself frequently as a country 
lawyer and I mean that in the best possible sense, but it has 
given me broad experience in so many different areas.
    Senator Specter. To what extent do you think your 
experience as Chairman of the Pennsylvania Liquor Control Board 
will assist you in judicial functions?
    Mr. Jones. Well, it is a quasi-judicial function in the 
sense that I have dealt with complex cases and numerous cases. 
As I have frequently said to people, I came from being the 
aforesaid country lawyer to Harrisburg 7 years ago and was 
given the reins to a 4,000-person, billion-dollar State agency. 
And there was no manual left on my desk from my predecessor on 
how to run that and I hope that I have distinguished myself in 
that job.
    I think that more than anything else, it gives you the 
opportunity to have a structure and an order, and to set a 
style that I would to as a trial judge, and bring the skills 
that hopefully are portable in organizing things to bear on the 
Federal court.
    Senator Specter. Mr. Jones, I know the people in the 
Williamsport area will be glad to know that you will be sitting 
in Williamsport. I believe that the different locations for the 
Federal court is a very, very important item.
    During my tenure in the Senate, I took the lead in 
establishing new stations in Lancaster, and also in Johnstown. 
We have stations in Allentown and Easton as well, and, of 
course, courthouses, in addition to Pittsburgh and 
Philadelphia, in Erie, Harrisburg, Scranton, and Wilkes-Barre.
    The station in Williamsport has been in existence for a 
long time, and Judge Muir is 86 years old, as I understand it. 
I know that you and Judge Vanaskie, the Chief Judge of the 
Middle District, have worked out an arrangement where your 
chambers will be in Williamsport and you will be committed to 
sitting in Williamsport.
    Mr. Jones. That is correct, Senator, and if I am fortunate 
enough to be confirmed, I will be able to call on the wisdom of 
Senior Judge Muir and Senior Judge McClure, whom I will be 
replacing, although, of course, as a senior judge he is going 
to continue to work. So I am glad to help and I feel so 
fortunate to be nominated for this position and, if confirmed, 
I will happily take my place in upstate Pennsylvania.
    Senator Specter. Well, Judge McClure was recommended, I 
think, by Senator Heinz and myself some time ago because we 
wanted to be sure Williamsport--Judge McClure, I think, comes 
from Union County?
    Mr. Jones. He does. That is exactly correct.
    Senator Specter. So the people will know, you come from 
Schuylkill County, from Pottsville, the home of John O'Hara, a 
very famous Pennsylvania town. Senator Santorum and I have been 
very careful to disperse the judicial selections as much as we 
can. There is, candidly, a little over-balance in the big 
cities, but we are trying to disperse as much as possible.
    In the competition, there were some very able people from 
Williamsport who aspired to be Federal judges and who may yet 
be. But Pottsville is not too far from Williamsport and in 
making the recommendation to the President which Senator 
Santorum and I did on you, after your approval by the 
bipartisan nominating commission, it was with the expectation 
that you would sit in Williamsport. I am glad to hear that 
Judge Vanaskie and you have worked that out and that you are 
committed to doing that.
    Mr. Jones. Yes, sir, we are, Senator. I have had great help 
from Judge Vanaskie, Chief Judge Vanaskie, I might say. And as 
I said, if I am fortunate enough to be confirmed, it appears to 
me to be a great court and one which I would be proud to serve 
on in Williamsport.
    Senator Specter. Thank you very much. I look forward to all 
of you serving. I think you will be very fine judges.
    Madam Chairwoman, I have decided not to read Senator 
Hatch's lengthy statement, but just would like unanimous 
consent that it be inserted into the record.
    Senator Cantwell. Without objection.
    I have one last question for actually all of you, a panel 
question. Some of our most beloved judges in history have been 
judges who made decisions that were against popular sentiment, 
or stood up to protect the rights of minorities or people's 
whose views made them outcasts.
    Can you tell me of an instance in your career where you 
have stood up, took an unpopular stand, or fought for 
something, maybe a client, and how you stood up to those 
pressures?
    Mr. Conner. Madam Chair, the first thing that comes to my 
mind is a case that I am currently involved in in Lancaster 
County. I represent a group of hoteliers who are challenging a 
hotel tax that has been imposed by Lancaster County, in part to 
support a convention center that is proposed in Lancaster 
County.
    One of the parties which is interested in that convention 
center is the Lancaster newspapers, which is a partner in the 
hotel that is going to be built next to the convention center. 
So I have been taking a stance on behalf of my clients, the 
hoteliers, which has been unpopular locally for those who would 
like to see the convention center built. That case is currently 
pending before the Pennsylvania Supreme Court.
    Senator Cantwell. Mr. Jones or Ms. Conti?
    Mr. Jones. I served for 10 years, Madam Chairwoman, as an 
assistant public defender in Schuylkill County, and so very 
frequently I found myself enmeshed in unpopular areas 
representing unpopular people. In particular, in 1989, I 
represented an individual who was alleged to have murdered a 
12-year-old boy.
    It was, as you can imagine, coming from a small town, a 
highly charged atmosphere. We had a week-long trial. I 
represented him throughout in a most difficult circumstance, 
with the community at large very much against him. He was 
convicted. I was able to keep him from suffering the death 
penalty in that case.
    But I learned perhaps more than anything else that I ever 
did as an attorney about the obligation that we have as 
attorneys to take on occasionally unpopular cases, and that at 
that time was the most unpopular case that I could possibly 
have chosen to have undertaken. And so that stands out amongst 
all the cases that I ever handled, or matters that I have 
handled as the most unpopular, but I was very proud to do that 
as an assistant public defender consistent with my obligations 
as an attorney.
    Senator Cantwell. Ms. Conti?
    Ms. Conti. I have had a career-long commitment to equal 
justice that includes justice for the poor, and throughout my 
career, in addition to doing pro bono work, I was active in the 
bar association with respect to protecting the rights of the 
poor in terms of access to justice.
    I can recall earlier in my career debating and bringing 
forth before the House of Delegates of the Pennsylvania Bar 
Association resolutions to enhance statutory protections for 
indigents in connection with landlord-tenant disputes. And I 
think the quality of the debate on the floor of the House of 
Delegates--the fact that we did move those proceedings forward 
in terms of providing in Pennsylvania additional protections 
for indigents in those circumstances is something that comes to 
my mind as a contribution to equal justice.
    Senator Cantwell. Thank you.
    Senator Specter, any more questions from you?
    Senator Specter. No. Thank you very much.
    Senator Cantwell. We will keep the record open for a week 
for any of our colleagues who want to submit questions and have 
you answer them. We appreciate your time this afternoon and 
your answers to our questions, and appreciate again the large 
crowd that is here to accompany all of you today.
    With that, the Senate Judiciary Committee is adjourned.
    [The biographical information of Mr. Conner, Ms. Conti, and 
Mr. Jones follow:]

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    [Whereupon, at 3:15 p.m., the committee was adjourned.]
    A submission for the record follows.]

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 NOMINATION OF LAVENSKI R. SMITH, NOMINEE TO BE CIRCUIT JUDGE FOR THE 
 EIGHTH CIRCUIT; HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE FOR THE 
 EASTERN DISTRICT OF MISSOURI; RICHARD E. DORR, NOMINEE TO BE DISTRICT 
JUDGE FOR THE WESTERN DISTRICT OF MISSOURI; HENRY E. HUDSON, NOMINEE TO 
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA; AMY J. ST. EVE, 
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; AND 
TIMOTHY J SAVAGE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 
                            OF PENNSYLVANIA

                              ----------                              


                         THURSDAY, MAY 23, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 2:08 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Durbin, Specter, and Sessions.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I want to welcome everybody here. The 
nominees before us come from Arkansas, Missouri, Virginia, 
Pennsylvania, Illinois, and I know a number of the nominees' 
families have made the journey with them, and I extend the 
welcome to them.
    With today's hearing, in just about 10 months, the Senate 
Judiciary Committee will have held 19 hearings involving a 
total of 71 judicial nominations--in fact, the only judicial 
hearings held by this Congress. Control, of course, was in the 
other party the first 6 months. That is more hearings, 
actually, on judges than my friends on the other side held in 
any year of their control of the Senate. In fact, it is more 
hearings than they held in 1996 and 1997 combined and includes 
more judicial nominees than were accorded hearings in 1999 and 
2000. I just thought I would point that out because of some of 
the misinformation that has been floating around, certainly not 
by any of those who are going to testify today, but it has 
happened.
    Indeed, actually, one-sixth of President Clinton's judicial 
nominees--more than 50--never got a committee hearing and 
committee vote when the committee was under other control.
    One of these vacancies was on the Eighth Circuit, a vacancy 
recently filled by Michael Melloy of Iowa. That was the seat to 
which President Clinton nominated Bonnie Campbell, a talented, 
well-qualified candidate who did get a hearing but was never 
allowed to come up for a vote, and it was finally returned.
    Now, since the change in control of the Judiciary 
Committee, even though, as I said, while there were some 
nominees the first 6 months of last year, no hearings were 
held, but we started ours--noticed the first one of our 
hearings 10 minutes after I became chairman. We moved quickly 
to fill vacancies on the Eighth Circuit. We have already 
confirmed two judges to this circuit: William Riley from 
Nebraska and Judge Melloy from Iowa. I was determined not to do 
to President Bush what the other party had done to President 
Clinton.
    The nominations to the district courts today deserve 
mention. I am pleased to be able to move so many of these in a 
hurry. In fact, as soon as the senior Senator from Virginia, a 
well-respected man, a close personal friend, came to me to ask 
me to schedule Judge Hudson for a hearing--I actually have to 
admit I didn't realize his name was here, but as soon as 
Senator Warner mentioned him, I was happy to accommodate him. 
In fact, the ink on the paperwork on the other trial court 
nominees before us this afternoon is practically still wet. Mr. 
Savage's file was completed about 9 days ago; Mr. Dorr's, 6 
days ago; Ms. St. Eve's, 3 days ago; Judge Autrey's, 2 days 
ago.
    I almost shouldn't mention that, 5, 3, 6 days, because 
somebody is going to say, well, why didn't we do them on that 
day?
    While some of the vacancies to which these nominees have 
been named arose relatively recently, the vacant seat in the 
Eastern District of Pennsylvania to which Mr. Savage has been 
nominated has been empty since the beginning of 1999. Now, 
President Clinton did nominate somebody for that, who waited 
there for a couple years, did not come before this committee in 
9 days the way Mr. Savage has. But he had to wait quite a bit, 
never got a hearing, which turned into a benefit for Mr. 
Savage.
    As of today's hearing, this Judiciary Committee will have 
held hearings for seven nominees to judgeships in Pennsylvania, 
including Judge Legrome Davis, Judge Michael Baylson, and Judge 
Cynthia Rufe, who were all confirmed last month, and we are 
already through another one, on a split vote but a comfortable 
margin, from Pennsylvania this morning----
    Senator Specter. Are you referring to Judge Smith?
    Chairman Leahy. Yes. I just mention this because we did 
have--I do recall when at least one person from Pennsylvania 
apparently wanted to hold up Judge Legrome Davis and did for 
years. We are moving through a lot quicker.
    The vacancy to which Judge Autrey has been nominated has 
been vacant even longer, since December 1996, when the late 
Judge Gunn took senior status. President Clinton nominated 
Missouri Supreme Court Judge Ronnie White to this vacancy in 
June 1997. He had to wait nearly a year for a hearing. We then 
voted to send his nomination to the Senate floor, but then his 
nomination waited for a full Senate vote, never got one, was 
sent back to the President. He renominated him. Again he waited 
patiently a long time for a vote, and he was given a floor 
vote, and even though a number of Republican colleagues had 
voted for him in committee, by an unprecedented--and it was 
unprecedented--party line vote on the floor, it was voted down.
    I just mention that to show that we are trying to move 
these a lot quicker. So I would like to especially commend 
Senator Carnahan for being here today to recommend the Missouri 
nominees to the committee. That just underscores for us what we 
all know about her, that she is a person of character and 
grace, willing to work on a bipartisan basis in the best 
interests of the State of Missouri, and is here to support 
President Bush's nominee.
    So I am glad we are able to hold today's hearing. I wish we 
could have held hearings on the 50 of President Clinton's that 
they refused to hold hearings on. In fact, 56 percent of 
President Clinton's courts of appeals nominees in 1999 and 2000 
never got a hearing or a vote. In 1996, as I recall, there 
wasn't a single court of appeals judge that was allowed to have 
a vote.
    From the time my friends on the other side took over 
majority control of the Senate in 1995 until we reorganized 
last July, circuit vacancies increased from 16 to 33, more than 
doubling.
    We have broken that. Nine nominees have been confirmed in 
fewer than 10 months. Mr. Smith is the 14th nominee to a 
circuit court to receive a hearing in just 10 months. In that 
case, I want to commend Senator Lincoln for her efforts. I 
appreciate your interest in ensuring that Mr. Smith be accorded 
a hearing. I had reached the point where I was afraid to walk 
on the Senate floor within Senator Lincoln grabbing me and 
asking when we were going to have this hearing. And so that is 
why we have moved forward in the same way, of course, that I 
wanted to accommodate Senator Warner on his, as I have with 
Senator Allen on other matters. But Judge Smith should thank 
you for being here.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Leahy. What we will do, following the normal 
procedure, we will hear from the two Senators who have a court 
of appeals judge, and then we will hear from other Senators 
according to seniority.
    Senator Sessions. Mr. Chairman, I just----
    Chairman Leahy. After your opening statement. I am sorry.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you very much. We are glad to have 
this hearing today, a hearing with a number of judges on it, 
and I think that that is a good pattern for us to follow. 
Sometimes it is not just the number of hearings but the number 
of judges that sit on that panel. And it is good that we have 
had 57 nominees confirmed, but I have got to just respond to a 
couple of things that you said, Mr. Chairman.
    When President Clinton left office, there were only 41 
nominees pending that he had nominated that had not been 
confirmed. So I am not sure how this number saying only 56 
percent or something got confirmed. And they were----
    Chairman Leahy. Well, 56 percent did not get confirmed.
    Senator Sessions. Well, we only voted down one nominee in 
the entire time President Clinton was in office. We confirmed 
377. There were 41 left pending that he had nominated in the 
last year that didn't get confirmed. There were only 67--there 
were 67 vacancies. That is when the Republicans controlled this 
committee and when a Democrat was in the White House.
    Now, when Senator Hatch chaired the committee and President 
Clinton was in the White House--well, when former President 
Bush left office, there were not 41 nominees but 54 nominees 
pending and unconfirmed, and there were 70 vacancies--70 
vacancies when Senator Hatch took over, and when he finished 
his term and President Clinton finished his term in office, 
there were only 67 vacancies. He had reduced the number of 
vacancies. We are now at about 90. We know that we have a real 
slow time with our courts of appeal judges particularly. The 
President has only gotten three of those confirmed, 27 
percent----
    Chairman Leahy. What number was Judge Smith this morning, 
courts of appeals?
    Senator Sessions. He hasn't been confirmed yet. And we had 
a lot of these nominees that are yet to even have a hearing who 
have been pending over a year. In fact, 8 of the first 11, I 
believe, have not had a hearing.
    So we are pleased to move forward today. I won't belabor 
the point, but I would just make the point that we think this 
is an alteration of the historic ground rules of moving judges, 
and it is slower than we have a right to expect, and certainly 
slower than was done under President Clinton.
    Chairman Leahy. You know, I would totally agree with you if 
I were working on those numbers. You said three courts of 
appeals judges have been confirmed by us. Actually, we have 
confirmed nine on the floor and 14 out of here. But as I said, 
normally we would go to the----
    Senator Sessions. You are right, Mr. Chairman. I read this 
note over here wrong. Of the first 11 nominees----
    Chairman Leahy. OK, don't feel badly----
    Senator Sessions [continuing]. Only three were confirmed.
    Chairman Leahy. Don't feel badly.
    Senator Sessions. Of the first 11 nominees that have been 
pending over a year, 3 only have been confirmed.
    Senator Warner. Mr. Chairman, could I seek recognition for 
10 seconds?
    Chairman Leahy. Of course.

 PRESENTATION OF HENRY E. HUDSON, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. JOHN WARNER, A 
            U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. I am one of the Senators who invited the 
FBI Director to appear before the Senate, and I now must attend 
that briefing. Could I just submit my statement, and that would 
enable the panel to go forward more speedily.
    Chairman Leahy. You know, there is a reason why I have such 
enormous respect for you and think of you as one of the real 
giants of the Senate, Senator Warner.
    Senator Warner. Thank you. We have served here a quarter of 
a century together, and there is no Senator--I will say this 
publicly--that is more conscientious about personal 
relationships than you, and I thank you.
    Chairman Leahy. I thank you.
    Senator Warner. And I so submit my statement because I have 
100 percent confidence in this candidate, and if you lack a 
little confidence in my statement, we have here a handwritten 
letter by Congressman Moran and from Richard Saslaw, the Senate 
Democratic Minority leader in Virginia. I also submit a letter 
from the Virginia Bar Association on Mr. Hudson's behalf.
    Chairman Leahy. Thank you.
    Senator Warner. I rest my case, Mr. Chairman.
    [Laughter.]
    Chairman Leahy. You are doing pretty good.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Chairman Leahy. I was going to say that our normal 
procedure is to go to the courts of appeals, except for the 
one--and I should tell Mr. Hudson that he says those nice 
things about you when you are not around, too. The one 
exception to that is if there are members of the committee, 
which would be Senator Specter and Senator Durbin.

PRESENTATION OF TIMOTHY J. SAVAGE, NOMINEE TO BE DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. ARLEN SPECTER, 
         A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Specter. Well, thank you very much, Mr. Chairman. I 
shall be brief.
    As Senator Warner noted, the FBI Director is going to be in 
S-407 in 9 minutes, and that is a very heavy Judiciary 
Committee oversight issue, and I am going to excuse myself 
early to go.
    Chairman Leahy. And I would note that the senior Senator 
from Pennsylvania has been one of the strongest of either party 
is making sure that FBI oversight is held. I mean that 
seriously.
    Senator Specter. I want to make just a few comments about a 
very distinguished Pennsylvanian who is up for confirmation 
today, Timothy Savage. He has his bachelor's degree from 
Assumption College in 1968 cum laude; Temple University Law 
School, 1971. He has some 30 years' experience as a hearing 
examiner for the Pennsylvania Liquor Control Board, which is a 
judicial position. He is permitted to practice privately, which 
he has, and has very extensive experience on both the civil and 
criminal docket, having tried more than 100 criminal cases to 
verdict. More recently, most of his practice has been in the 
civil field.
    He has extensive community activities, as counsel, Board of 
Directors for the Metropolitan (Northeast) Philadelphia Boys & 
Girls Clubs, and in an unusual qualification--and I think it is 
a qualification--is a Democratic Philadelphia County Executive 
Committee and an elected Democratic leader of the Philadelphia 
23rd Ward. And that provides a lot of very grass-roots 
experience.
    Mr. Savage is a product of an arrangement which Senator 
Santorum and I have worked out so that the President's party 
has three nominees for every one nominee of the party which is 
out. This is a practice which we started some time ago and I 
think is very, very important, and one time in a 24-year 
period, 20 years were controlled by one party and many lawyers 
of the other side did not have an opportunity. And I think this 
gives us some balance. And to President Bush's credit, he has 
honored that commitment carte blanche even though Mr. Savage 
has been an active worker in the field and was against the 
President. So it is a tribute to the President and it is also a 
tribute to Mr. Savage.
    I would stay and await his questioning, but he is not going 
to have any problem with his experience at the trial bar.
    Thank you very much, Mr. Chairman.
    Chairman Leahy. I would much prefer that you ask the 
questions at the meeting you are going to, because I suspect 
they are some of the same ones that you and I have shared 
before.
    Senator Specter. I will oblige you, Mr. Chairman.
    Chairman Leahy. And I would like to talk to you when you 
get back. Thank you.
    Senator Durbin?

 PRESENTATION OF AMY ST. EVE, NOMINEE TO BE DISTRICT JUDGE FOR 
  THE NORTHERN DISTRICT OF ILLINOIS BY HON. RICHARD DURBIN, A 
            U.S. SENATOR FROM THE STATE OF ILLINOIS

    Senator Durbin. Mr. Chairman, I am pleased to be here today 
to support the nomination of Amy St. Eve to the U.S. District 
Court of the Northern District of Illinois. I have a lengthy 
statement here, which I would like to be put in the record.
    [The prepared statement of Senator Durbin appears as a 
submission for the record.]
    Senator Durbin. I don't know if it is appropriate, Mr. 
Chairman, but I would yield my time at this point to Senator 
Fitzgerald who actually--oh, is he still here? He left? OK. 
Then I will make a statement, and I will make it very briefly.
    I would like to--he has just returned. Is it appropriate 
for me to yield to Senator Fitzgerald, who actually nominated 
Ms. St. Eve?
    Chairman Leahy. Of course. These younger Senators can move 
so fast.
    [Laughter.]
    Chairman Leahy. I was 34 when I arrived here. I remember 
those days. Go ahead.

 PRESENTATION OF AMY ST. EVE, NOMINEE TO BE DISTRICT JUDGE FOR 
 THE NORTHERN DISTRICT OF ILLINOIS BY HON. PETER FITZGERALD, A 
            U.S. SENATOR FROM THE STATE OF ILLINOIS

    Senator Fitzgerald. Well, Mr. Chairman, thank you very 
much, and, Senator Durbin, my colleague from Illinois, I 
appreciate you yielding your time to me to introduce a nominee 
to the United States District Court for the Northern District 
of Illinois. I am very pleased to present to the Senate 
Judiciary Committee Ms. Amy St. Eve. Ms. St. Eve is very young 
herself. She is 36. But I think when you hear of her 
achievements and accomplishments thus far, you will agree with 
Senator Durbin and me that she makes an outstanding candidate 
for the Federal district court.
    Ms. St. Eve is from Belleville, Illinois. She graduated as 
valedictorian in her class at Belleville High School. She went 
to Cornell undergraduate and law school at Cornell Law School. 
She was Order of Coif, an articles editor on the Cornell Law 
Review. She received the Boardman Third Year Law Prize. She was 
No. 1 in her class rank after her second year in law school. 
And she received numerous other awards while she was at Cornell 
Law.
    She began her career at Davis, Polk & Wardwell in New York 
where she practiced corporate law in civil and criminal 
matters. From 1994 to 1996, Ms. St. Eve was an associate 
independent counsel for the Whitewater Independent Council in 
Little Rock, Arkansas. She did secure, along with another 
lawyer, the one successful prosecution in that Whitewater 
investigation, and that was a prosecution of Governor Jim Guy 
Tucker, Jim McDougal, and Susan McDougal for fraud.
    From 1996 through 2001, Ms. St. Eve was an Assistant United 
States Attorney in the Northern District of Illinois. She 
handled bank fraud, health care fraud, narcotics trafficking, 
public corruption, and gang violence cases.
    From May 2001 through the present, Ms. St. Eve has served 
as a senior counsel in litigation at Abbott Laboratories, which 
is in the Chicago area. She has also taught trial advocacy at 
Northwestern University School of Law. And it is with great 
pleasure that I present to the committee Amy St. Eve and her 
husband, Howard Chrisman, who is a physician at Northwestern 
Memorial Hospital, and, Amy and Howard, if you would want to 
stand? And they have with them their young son, Brett, who is 1 
month old. He is their third child. They have Lauren, Emily, 
and now Brett. Congratulations to all of you. Thank you.
    [Applause.]
    Chairman Leahy. The family archives will show the 1-month-
old was here, just in case he doesn't remember.
    Senator Fitzgerald. And just in concluding, during the 
process in which I was searching for a candidate and we were 
reviewing Ms. St. Eve's references, I believe my office talked 
to one judge who was very impressed that she had tried a case 
while she was maybe in her eighth month of pregnancy. So she 
has a lot of stamina and has done a wonderful job balancing 
family and career, and I am very pleased to present Amy St. Eve 
to the committee, and I appreciate the chairman and the 
committee members' time.
    Thank you very much, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Durbin, did you want to add anything?
    Senator Durbin. No, that is all right.
    Chairman Leahy. OK. Then we will go to--again, going back 
to the court of appeals, I appreciate the courtesy of both 
Senator Hutchinson, who is a strong supporter of this nominee, 
and Senator Lincoln.
    Senator Hutchinson, go ahead, sir.

PRESENTATION OF LAVENSKI R. SMITH, NOMINEE TO BE CIRCUIT JUDGE 
 FOR THE EIGHTH CIRCUIT BY HON. TIM HUTCHINSON, A U.S. SENATOR 
                   FROM THE STATE OF ARKANSAS

    Senator Hutchinson. Thank you, Mr. Chairman. I am delighted 
to be here. Thank you for calling the hearing and thank you for 
the opportunity to introduce Lavenski Smith, the nominee for 
the Eighth Circuit Court of Appeals. I would also like to 
introduce his family. His wife, Trendle, is here, and his 
children, Stacia and Gabriel. They are right back here on this 
front row.
    Chairman Leahy. Thank you. And, of course, each nominee 
will get a chance to put that in further in the record. But I 
do have to think that nominees someday somebody goes into the 
old family archives, and it is kind of neat to find who was 
there.
    Senator Hutchinson. Absolutely.
    Chairman Leahy. Go ahead.
    Senator Hutchinson. Mr. Chairman, Arkansas does not get the 
chance to fill a court of appeals seat very often. In fact, the 
last time an Arkansan was placed on this bench was 10 years 
ago, in 1992. That is one of the many reasons that this 
particular nomination is so important.
    As someone from Arkansas, I want you to know that those of 
us who know Lavenski Smith best feel that President Bush made 
an excellent choice.
    As I briefly outline Justice Smith's background and 
qualifications for the bench, I hope the members of the 
committee will note the recurring theme of service. Be it 
public service as a government official, service to his 
community through aid and religious organizations, or service 
to the bar as a public interest lawyer, Lavenski Smith has made 
service the guiding light in his life. Justice Smith earned 
both his bachelor's degree and his law degree from the 
University of Arkansas in Fayetteville. In fact, Mr. Chairman, 
he put himself through law school by working as a janitor.
    Following law school and 3 years clerking in private 
practice, Judge Smith served the poorest citizens of Arkansas 
as the staff attorney for the Ozark Legal Services representing 
abused and neglected children. After working with the Ozark 
Legal Services, Judge Smith opened the first minority-owned 
firm in Springdale, Arkansas, handling primarily civil cases. 
He then taught business law at John Brown University and took 
several positions in public service, including regulatory 
liaison for the Governor's office. Currently, Judge Smith is 
serving as the commissioner of the Arkansas Public Service 
Commission.
    In 1999, he was appointed to the Arkansas Supreme Court for 
2 years. As a Supreme Court Justice, he presided over hundreds 
of cases and authored several dozen majority opinions.
    Throughout his work as an attorney and a judge, Lavenski 
Smith has earned the respect and admiration of his colleagues. 
Among those who have publicly expressed their support, the 
Chief Justice of the Arkansas Supreme Court, W. H. ``Dub'' 
Arnold, who said of his former colleague, ``He'll make a great 
Federal judge. I think President Bush made the best possible 
nomination he could have made.'' And his colleague at the Ozark 
Legal Services, Mona Teague, states, ``We hated to see him 
go.''
    Another strong supporter is Mr. Dale Charles, the president 
of the Arkansas NAACP, who has spoken out publicly supporting 
this nomination and written to you, Mr. Chairman, to express 
his support.
    In June of 2001, the American Bar Association reviewed 
Justice Smith's qualifications and made a unanimous qualified 
determination. Justice Smith has received broad support from 
colleagues on the bench, colleagues from his days of practicing 
law, the American Bar Association, and the Arkansas editorial 
writers.
    Finally, I want to point out that Justice Smith will bring 
more than just his obvious legal qualifications to the Eighth 
Circuit Court of Appeals. He will bring a long history of 
community service to the bench. He has served on the board of 
Northwest Arkansas Christian Justice center, a nonprofit 
organization dedicated to providing mediation and conciliation 
services. He worked with Partners for Family Training, a group 
that recruits and trains foster parents. And Justice Smith has 
raised funds for the School of Hope, a school for handicapped 
children in his hometown of Hope, Arkansas.
    Mr. Chairman, this outstanding record of service is the 
most outwardly visible sign of something people in Arkansas 
know well. Lavenski Smith is a good and honorable man who will 
serve his country well, and he is someone I am proud to call my 
friend.
    I appreciate very much Senator Lincoln's strong support for 
this nomination. I think the President has nominated the right 
person for this job, and as you hear his testimony here today, 
I am confident the committee will agree.
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, you have been, again, very strong in 
your private comments as well as your public comments, and I 
appreciate that.
    Senator Lincoln, we have the nominee here, so go ahead.

PRESENTATION OF LAVENSKI R. SMITH, NOMINEE TO BE CIRCUIT JUDGE 
FOR THE EIGHTH CIRCUIT BY HON. BLANCHE LINCOLN, A U.S. SENATOR 
                   FROM THE STATE OF ARKANSAS

    Senator Lincoln. Thank you, Mr. Chairman. I am telling you, 
that good old female patience and perseverance pays off. I am 
wondering if my colleagues are going to put up with me much 
longer, however.
    I do appreciate you and the members of the Judiciary 
Committee providing us the opportunity to appear before you 
today to introduce Judge Lavenski Smith, who has been nominated 
to fill a vacancy on the Eighth Circuit Court of Appeals. He is 
joined, obviously, as Senator Hutchinson mentioned, by his 
wife, Trendle, and their son and daughter, and as always, we 
are so pleased that the entire family could be here.
    I want to begin my remarks today by offering a very special 
word of thanks to you, Chairman Leahy, for convening this 
hearing today. I have been somewhat of a pest, and I appreciate 
very much your paying attention. I want to acknowledge the 
chairman's diligent efforts over the past 10 months to reduce 
the number of judicial vacancies that were largely created 
before the Senate reorganized in June of last year.
    Even though there has been a good deal of heated debate 
surrounding the pace of judicial confirmations in recent 
months, I can say from personal experience that the chairman 
has been highly responsive to my inquiries in this matter.
    In short, I am grateful to him for granting my request that 
Judge Smith receive a hearing so that he can present his 
qualifications to this committee for consideration.
    To the committee and the chairman, Lavenski Smith is a 
lifelong resident of Arkansas. After graduating from high 
school, Judge Smith moved north to Fayetteville where he 
received both his B.A. and J.D. from the University of 
Arkansas, as Senator Hutchinson has mentioned. And I will try 
hard not to be duplicative of what my senior colleague from 
Arkansas has mentioned, but it is also important.
    Since that time, Judge Smith has enjoyed a very impressive 
career as a practicing attorney, as a State Supreme Court 
Judge, as a professor, and most recently, as a member of the 
Arkansas Public Service Commission.
    This would be an impressive list of accomplishments for 
anyone, but at age 43, Judge Smith's record is a good 
indication that he has many years of very productive service in 
his future. Since President Bush announced the appointment of 
Judge Smith last year, I have heard from dozens of Arkansans 
from across the political spectrum who support his nomination.
    Since, Mr. Chairman, I am not a lawyer and I do tend to 
turn to the legal community for their recommendations, my 
support for Judge Smith's nomination is based in large part on 
the enthusiastic endorsement he has received from those who 
know him best, his colleagues and friends who have firsthand 
knowledge of his professional and personal attributes.
    Those who have indicated strong support for Judge Smith in 
Arkansas, as Senator Hutchinson mentioned, include Governor 
Mike Huckabee, the Arkansas Supreme Court Chief Justice ``Dub'' 
Arnold, and the Arkansas NAACP President Dale Charles, all of 
which I have heard from on more than one occasion.
    In addition, I believe it is important to note that Judge 
Smith received a unanimous qualification rating for his 
position by the ABA Standing Committee on the Federal 
Judiciary.
    Even though Judge Smith and I may not agree on every issue, 
that is not the test that I apply to determine an individual's 
fitness for the Federal judiciary. I evaluate judicial nominees 
based on their skills, experience, and ability to understand 
and apply established precedent, not on any particular point of 
view a nominee may hold.
    Fundamentally, I am interested in knowing that a nominee 
can fulfill his responsibility under the Constitution in a 
court of law and implement the rule of law of this great 
Nation. I am satisfied that Judge Smith has really met that 
standard.
    In closing, Mr. Chairman, I highly value the role the 
Judiciary Committee plays in evaluating and screening lifetime 
judicial candidates. Like you, I do not believe the Senate's 
constitutional role of providing advice and consent on judicial 
nominations should ever be interpreted to mean advice and 
rubber stamp. If so, the exercise that we are engaging in today 
is meaningless.
    In accordance with those principles, I ask my colleagues on 
the Judiciary Committee to give Judge Smith your full attention 
and your careful consideration in the following hearing.
    I thank you, especially, Mr. Chairman, for all your 
accommodations and certainly the wonderful working relationship 
we share in the Senate.
    Chairman Leahy. Thank you very much, and I know both you, 
Senator Hutchinson, and you, Senator Lincoln, are supposed to 
be in about three different committee meetings right now. So 
please feel free to leave, and I do appreciate your coming. I 
do appreciate your time, and I do appreciate your consistent 
support for this nominee.
    Senator Lincoln. Thank you, Mr. Chairman.
    Senator Hutchinson. Thank you, Mr. Chairman.
    Chairman Leahy. Again, now going back on the seniority 
rule, we will go to Senator Bond and Senator Santorum, then 
Senator Allen, Senator Carnahan, and Congressman Clay. So, 
Senator Bond, you are no stranger to this committee. You have 
been here a number of times before. Please go ahead, sir.

 PRESENTATION OF HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE EASTERN DISTRICT OF MISSOURI, AND RICHARD E. DORR, 
   NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
  MISSOURI BY HON. KIT BOND, A U.S. SENATOR FROM THE STATE OF 
                            MISSOURI

    Senator Bond. Thank you very much, Mr. Chairman, and thank 
you for calling the hearing, and we do appreciate the fact that 
there is the confidential briefing and many other things going 
on. But we are most grateful that you are taking the time today 
to hear two exceptional candidates for the Federal district 
court is Missouri: the Honorable Henry Autrey for the Eastern 
District of Missouri and Richard E. Dorr for the Western 
District.
    I believe the committee will find that each of these two 
gentlemen are extremely well qualified for the position, 
possess the experience, the intellect, and the personal 
qualities necessary to preside over trials and rule in an 
informed and impartial manner. The administration of justice in 
Missouri will be enhanced by the presence of both of these men 
on the Federal bench.
    Judge Autrey will bring to the bench an outstanding 
reputation and extensive experience as both a judge and a 
prosecutor. Upon graduation from law school at the St. Louis 
University School of Law, Judge Autrey took a job as a 
prosecutor in the city of St. Louis, a profession I know the 
chairman holds in very high regard. Judge Autrey served as a 
prosecutor for 9 years. In addition to running the office for a 
time as its first assistant, he established the office's Child 
Abuse Unit and prosecuted abuse and neglect cases. As a 
prosecutor, Judge Autrey tried over 60 felony cases, including 
homicides, and won a number of high-profile convictions.
    After serving as a prosecutor for 9 years, Judge Autrey was 
appointed associate circuit judge by then-Governor Ashcroft, 
presiding over civil and criminal cases. Judge Autrey was later 
promoted to circuit judge of the city of St. Louis by then-
Governor Mel Carnahan. Over his career on the bench, Henry 
Autrey has earned a reputation as fair, approachable, 
thoughtful, and a hard-working judge.
    While conducting extensive due diligence in finding a 
candidate to recommend to President Bush, I spoke with a number 
of attorneys in the St. Louis legal community who know or have 
appeared before Judge Autrey. Their praise was as effusive as 
it was abundant. He is regarded as a very impartial judge who 
has the temperament and the work ethic for this important post. 
In fact, I encountered no one who had anything but positive 
things to say about Judge Autrey.
    As evidence, in his last retention vote, over 90 percent of 
the attorneys in his jurisdiction voted to keep him on the 
bench under our Missouri non-partisan court plan.
    In addition to his work on the bench, he has been active 
around the St. Louis area. His activities range from teaching 
numerous courses at St. Louis University School of Law to 
serving on the board of the St. Louis Food Bank, becoming 
active in city revitalization, to frustrating a purse snatcher. 
He is also married, has two fine children, lives in the city of 
St. Louis.
    Dick Dorr also brings to this position an outstanding 
reputation as a trial attorney from his legal practice in 
Springfield, Missouri. Dick is a highly respected lawyer in 
Springfield and currently a partner with the law firm of 
Blackwell, Sanders, Peper & Martin. He has extensive experience 
as a trial attorney. While he currently concentrates in the 
area of commercial litigation, he has represented clients in 
both civil and criminal matters. He has appeared in the State, 
Federal, and appellate court and has done so throughout his 
career of more than 30 years.
    Attorneys in Springfield who know and have practiced with 
Dick share my belief that he has the experience to preside over 
fair and efficient trials, and his presence on the bench will 
be a tremendous benefit to the bench and improve the 
administration of justice in the Western District of Missouri.
    Dick has spent most of his adult life in Springfield, 
Missouri, but he was born and raised in Jefferson City. He 
attended and played football on scholarship at the University 
of Illinois. My guess is that he is probably the only person 
appearing before the committee today who played in the Rose 
Bowl. Following college, he came back to Missouri to attend the 
University of Missouri School of Law. He has practiced law in 
both private practice and in the United States Air Force as 
judge advocate.
    Over the years, Dick has remained active in the Springfield 
community. His work was cited to me frequently, and he has 
earned the regard of many of Springfield's citizens for his 
involvement. He has worked as an instructor at Southwest 
Missouri State University in Springfield, served on the board 
of a number of organizations, and given countless hours of 
volunteer work. He has worked for Missouri Bar's Volunteer 
Lawyer Program. He was instrumental in starting the Legal Aid 
Society of Southwest Missouri and served on its board. He has 
received the Equal Access to Justice Award from the Springfield 
Bar for his work and was recognized for outstanding service to 
the community by the Greene County Community Justice 
Association.
    As a judge advocate, he received two awards for meritorious 
service. Dick has been a reservist in the United States Air 
Force. He is married to Barbara, and they have one son.
    I thank the committee and urge with my highest 
recommendation their favorable consideration.
    Chairman Leahy. Well, thank you very much, and I also 
know--I have seen your schedule for the afternoon. I know you 
are probably going to have to leave. I appreciate your being 
here.
    Senator Santorum is no stranger to this committee, because 
I think this is either the sixth or seventh Pennsylvania judge 
we have had before this committee--seventh, I believe it is, 
since I became chairman. And so I am delighted to have you 
here. Please go ahead.

  PRESENTATION OF TIMONTHY J. SAVAGE, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. RICK 
    SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Santorum. Thank you, Mr. Chairman. Mr. Chairman, I 
also want to thank you for the executive meeting this morning 
on Judge Smith, and I want to thank the committee for its 
favorable recommendation. In particular, I want to thank 
Senators Biden, Edwards, and Kohl for their support of Judge 
Smith and his nomination.
    The nomination that we have here today is of Timothy 
Savage, and as Senator Specter commented to the committee, 
Senator Specter and I have worked out an arrangement under the 
prior administration and have kept it under this 
administration, even though there are two Republican Senators 
and a Republican President, that we would keep a ratio of three 
of the President's party and one of the opposing party of the 
President in our judicial selections.
    We have had 11 nominations that have been sent to this 
committee for the district court, and of those 11, 3 of the 
11--actually, a little better than 3 to 1 have been Democrats: 
Judge Davis, who has been moved out of this committee today; 
Tim Savage; and yet to be considered by the committee, Judge 
Dave Circone from the Pittsburgh area, who is also a Democrat 
elected official.
    We believe very strongly in a bipartisan approach to this, 
and Senator Specter laid out how we did that. I also would 
suggest that one of the things that I feel very strongly about 
is that when there is a Democrat to be nominated from the 
Commonwealth of Pennsylvania, the Democratic political leaders 
in our Commonwealth should have the say as to who those 
nominees are. And I have worked very closely with Congressman 
Brady--I was going to say nice things in your absence, and I 
will say them in your presence. I have worked very closely with 
Congressman Brady, who is obviously a Congressman from the 1st 
District in Pennsylvania, but also is the chairman for the city 
of Philadelphia, the Democratic chairman. And this is a nominee 
that I know Congressman Brady as well as Congressman Fattah 
very, very strongly support and highly recommended him to us.
    And so as is our practice, we have deferred to Democrats 
within the State to select the nominees both under the Clinton 
administration as well as under this administration, and we 
will continue that practice as we try to work together in 
concert as a delegation.
    I am very pleased that they did nominate Tim Savage, who 
has an excellent reputation, has experience, as Senator Specter 
suggested, judicial experience, trial attorney experience, 
private practice experience, and--not a negative in my mind--
political experience, someone who has a very balanced career, 
someone who will bring, I believe, great integrity to the bench 
as well as a tremendous amount of skill. I won't go through his 
resume because Senator Specter did so adequately. I would just 
like to say that I strongly support his nomination, and I want 
to welcome him to this committee and introduce him to the 
committee, as well as his wife, Linda, for being here today, 
and I look forward to the committee acting favorably on his 
nomination and hopefully moving it quickly to the floor of the 
Senate.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Santorum.
    We will go next, before we go to Congressman Brady and 
Congressman Clay, to the Commonwealth of Virginia with Senator 
Allen. Senator Allen has been very, very helpful to this 
committee because he also has the perspective that some of our 
Senate colleagues have of having been a former Governor, a 
well-respected Governor, and as a result has had to think about 
judicial appointments well before coming here. And I have 
listened to him and relied on his advice since he came here, 
and I appreciate the time that you have taken, Senator Allen, 
to be here. Please go ahead, sir.

 PRESENTATION OF HENRY E. HUDSON, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. GEORGE ALLEN, A 
            U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Allen. Thank you, Mr. Chairman, Senator Sessions. 
Thank you all for having this hearing. And I appreciate your 
kind words and your help on other judgeships and other matters 
that are important for people's liberty, including one who was 
incarcerated last year at this time in China. There are a lot 
of things this committee----
    Chairman Leahy. Incidentally, I admire your efforts on that 
because your voice was one of conscience and your voice was a 
steadfast and clear voice, and I appreciate that.
    Senator Allen. Well, it helped a great deal to have your 
leadership to assist us in that cause.
    My colleague, the senior Senator from Virginia, whom I 
learn from every day, I noticed how he came in, interrupted 
your repartee here between the Senators and got to the briefing 
with the FBI Director. Senator Warner and I, when we are 
considering judges for the Eastern District of Virginia, which 
is a very important district--it has many significant cases. It 
has a rocket docket. They have the Moussaoui trial before it 
right now. The John Walker Lindh trial is in the Eastern 
District of Virginia in the Alexandria Division.
    We interviewed many, many quality candidates and recognized 
how important it was to find the very best individual to 
promote to the President and present to the President for 
nomination. And I am very pleased that you are having this 
hearing. And, of course, I offer my support for the nomination 
of Henry Hudson to the United States District Court for the 
Eastern District of Virginia.
    I have personally known Henry Hudson for several decades 
now. He has a long and distinguished career. I think it is 
great to see all the public service roles that he has played. 
He is here with his wife, Tara, and son, Kevin, and Kevin 
doesn't know this, but--well, I guess he does. Before Kevin was 
around, Henry started as a fire fighter, then was a deputy 
sheriff, and he has had a very long, distinguished career. In 
fact, he was elected in 1979 as Commonwealth's attorney for 
Arlington County, which, for a Republican, is no easy task, 
and, in fact, did such an outstanding job of good quality, he 
was re-elected by a large margin 4 years later.
    In 1986, President Reagan selected him to serve as U.S. 
Attorney for the Eastern District of Virginia. He is credited 
with elevating the stature and visibility of that office with 
such prosecutions as Operation Illwind, which restored 
integrity to the field of defense procurement.
    In 1992, Judge Hudson was appointed by President Bush to 
serve as Director of the United States Marshals Service, and he 
received outstanding awards and commendations there.
    While I served as Governor, Mr. Chairman, as Governor you 
make appointments, not just judges but to commissions on 
matters that are important to the people of our Commonwealth 
and States. I asked, and Henry fortunately agreed to serve as 
chairman of the Criminal Justice Services Board while I served 
as Governor. He also was a key member of my Governor's 
Commission to Abolish Parole and Reform Sentencing. Later, I 
selected him to be a key member of the Virginia Criminal 
Sentencing Commission, and I can personally attest, due to his 
performance in those tasks, that his dedication, his work 
ethic, and integrity are just superb and his leadership is one 
that is very much needed in those areas as well as then showing 
what kind of a judge he would be, because since 1998 he has 
been a circuit court judge in Fairfax County, Virginia. He has 
that proven experience. Those who present themselves before the 
bar have been able to judge the judge, and there is bipartisan 
support. Democrats and Republicans, the evidence that Senator 
Warner mentioned earlier, all think he is a very firm but fair 
judge. That is what you would want.
    And so you will find, Mr. Chairman, Senator Sessions, and 
other members of the committee, as you do your examination, you 
will find Judge Hudson to be calm, you will find him to be 
steady, you will find as you inquire, as I always do, what is 
your philosophy as a judge, that he has the proper 
understanding of what is the right philosophy and what is the 
proper role of a judge: to administer the law, interpret the 
law fairly based on the facts of the case, not to create laws. 
That is the role of the legislative in partnership with the 
executive branch. He is a gentleman that you will find with 
proven integrity, proven scholarship, proven judicial 
experience and philosophy.
    I again thank you for having this hearing and would hope 
that you would move as quick as possible to fill this vacancy 
with a gentleman that we all would be proud to call judge for 
the Eastern District of Virginia.
    Chairman Leahy. Well, thank you, Senator Allen. Of course, 
what is not stated but is obvious, his two biggest attributes 
are the strong support of you and Senator Warner. You are both 
highly respected on both sides of the aisle, and if he did not 
have your support, this committee would not be moving that 
expeditiously. We are moving expeditiously, so I thank you. 
Thank you for being.
    Senator Allen. Mr. Chairman, if I may be excused, and I 
will present the evidence of Senator Warner as well.
    Chairman Leahy. Be on your way.
    Senator Allen. Thank you.
    Chairman Leahy. Senator Carnahan has worked--I believe I 
can honestly say this--from the day she came here to lower the 
level of partisanship and to try to make things work the way 
they should, in the way that is best, not only for Missouri but 
for the whole United States. And she has certainly done that in 
the area of judgeships and appointments from the great State of 
Missouri, and I am so glad that you are here, and I would like 
to hear from you and then from Congressman Clay. And I 
apologize. These openings are taking a little bit longer than 
expected, but I do want to hear from both of you.
    Please, Senator Carnahan?

 PRESENTATION OF HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE EASTERN DISTRICT OF MISSOURI, AND RICHARD E. DORR, 
   NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
 MISSOURI BY HON. JEAN CARNAHAN, A U.S. SENATOR FROM THE STATE 
                          OF MISSOURI

    Senator Carnahan. Thank you, Mr. Chairman. I appreciate 
this committee's steadfast effort to fill the existing 
vacancies in the Federal judiciary. The committee has moved 
expeditiously in scheduling today's hearing. I thank you for 
that.
    I am especially pleased to introduce to you two Missourians 
that President Bush has nominated for positions on the United 
States Federal District Court. Dick Dorr is a partner at the 
Blackwell, Sanders law firm in Springfield, Missouri. Earlier 
in his legal career, he served in the United States Air Force. 
He has also demonstrated a strong commitment to the Springfield 
Bar Association as well as the Legal Aid Society of Southwest 
Missouri, and has been active in his church and community. Mr. 
Dorr has been nominated to serve on the United States District 
Court for the Western District of Missouri.
    Judge Henry Autrey, who has been nominated for Missouri's 
Eastern District, was appointed by my late husband, Governor 
Carnahan, to serve as a Circuit Court Judge for the city of St. 
Louis. This appointment followed many years of service as a 
local prosecutor and a legal aid attorney. Judge Autrey has 
also been active in the Missouri Bar and the Mound City Bar 
Association in St. Louis.
    Both nominees may take great pride in the President's 
nomination and the committee's proceeding today. But I do not 
want to let this occasion pass without acknowledging another 
Missouri nominee who sought to serve on the Federal bench. 
Ronnie White will remain a symbol of partisan mistreatment. 
What happened to him still leaves many Missourians bitter about 
this process. And while I believe the mistreatment of Ronnie 
White deprived our Nation of a skilled jurist, we cannot let 
our lingering feelings interfere with the fair treatment of 
future nominees. The scheduling of this hearing today, Mr. 
Chairman, demonstrates your commitment to the fair treatment of 
these and all other judicial nominees that come before us.
    Thank you very much.
    Chairman Leahy. Thank you. Thank you very much, Senator 
Carnahan, and thank you for the help you have given this 
committee in moving forward on judges.
    Chairman Leahy. Congressman Clay, we are always delighted 
to have you come over on this side of the Hill, and please go 
ahead, sir.

 PRESENTATION OF HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF MISSOURI BY HON. WILLIAM LACY CLAY, 
    A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI

    Representative Clay. Mr. Chairman, Senator Sessions, thank 
you for allowing me this opportunity to come before you today 
to offer my unequivocal support for the nomination of Judge 
Henry E. Autrey to the U.S. District Court for the Eastern 
District of Missouri.
    Judge Autrey is an excellent choice for the U.S. district 
court as he brings many significant personal and professional 
attributes to the Federal bench.
    For the last 16 years, Judge Autrey has served with 
distinction on the bench of the 22nd Judicial Circuit in the 
city of St. Louis. In this capacity, he has presided over all 
civil and criminal matters within the jurisdiction of the 
circuit court, including trial and disposition of civil 
litigation and supervision of probation matters relating to 
criminal trial assignments.
    Prior to his work on the bench, Judge Autrey served 10 
years in the Office of the Circuit Attorney of St. Louis where 
he established and headed the Child Abuse Unit.
    On the personal side, I have known Judge Autrey and his 
family for nearly 20 years, and I can attest that he is a man 
of unwavering integrity and one who possesses a deep sense of 
community and civic involvement.
    He is a former member of the board of directors of the St. 
Louis Area Food Bank and a former board member of Aid to 
Victims of Crime. Judge Autrey currently serves on the St. 
Margaret of Scotland School Board. Judge Autrey's outstanding 
character, judicial expertise, and fair-minded approach are all 
qualities that will enable him to serve with distinction from 
the Federal bench. I believe this is a well-deserved 
appointment for both Judge Autrey and the citizens of St. 
Louis, and I look forward to his confirmation.
    Thank you.
    Chairman Leahy. Thank you very much, Congressman Clay. And, 
again, thank you for being so patient, and I know you and 
Congressman Brady have a lot of other things going on as we are 
pushing toward this coming recess. But thank you very, very 
much for being here.
    Chairman Leahy. Congressman Brady, I am delighted to have 
you here. You honor us by coming over, and I thank you for 
that.

PRESENTATION OF TIMOTHY J. SAVAGE, NOMINEE TO BE DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. ROBERT BRADY, 
  A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

    Representative Brady. Thank you, Senator. I thank you for 
allowing me to have a real brief presentation in front of you 
and Senator Sessions.
    Chairman Leahy. Take as long as you want.
    Representative Brady. I would also like to thank Senator 
Santorum and Senator Specter. I saw him on the way over. He 
told me that he had presented Timmy Savage to you, and he 
couldn't do it in a better way. He went through his 
credentials, so I won't bore you with that.
    I would also like to tell you that it is fulfills me, makes 
me feel good that in the city of Philadelphia we make 
arrangements--some people make deals, but we make arrangements, 
and it was good to know that the arrangement was held when we 
changed Presidents, and I would like to thank the President for 
nominating Timmy Savage.
    I have known Timmy Savage for 25 years. I have known him 
and his lovely wife, Linda, and his family for that long also. 
He is a sole practitioner, and that brings a unique experience 
to the Federal bench. He has tried a lot of cases on every 
single level. He had to do it himself. He is not part of a 
major law firm, and he has been extremely successful.
    He has counseled me at all times. Sometimes I have taken 
that counsel and I have done well. The times I haven't taken 
it, I have gotten in a little trouble and had to go back to him 
and receive some more. But I am proud of him, as you all should 
be proud of him, someone who will aspire to the Federal bench. 
He was found well qualified by extensive investigation, and 
again, I thank the President and I thank you, Senator, for your 
consideration, and I thank all of you and hopefully you will 
have confirmation to my friend and someone who will do us proud 
to be on the Federal bench in Timmy Savage.
    Thank you.
    Chairman Leahy. Thank you very much, Congressman Brady. And 
I am pleased to see the procedure they have in the Commonwealth 
of Pennsylvania. There have been others like that of long 
standing in a number of other States that have existed when 
there have been both Republican or Democratic Presidents. 
Unfortunately, the administration--I assume there is somebody 
here from the administration; they do come by. Unfortunately, 
they have decided not to go and use them, and it has created a 
problem. I can think of several States where that has happened 
with commissions actually set up by Republicans, and now all of 
a sudden they don't want to use them. And I think it is 
unfortunate.
    We do use similar ones in Vermont, begun by a predecessor 
senior Senator, Senator Stafford, who was a Republican. I was 
there as a Democrat, and we set it up so that there would be 
representation from both parties, plus representation from the 
bar association, and we had no idea what their party 
affiliations were. And it has worked out very well. We don't 
have that many judges in Vermont, but we have some darn good 
ones. And I appreciate what you have done. Thank you.
    Representative Brady. Thank you, Senator.
    Chairman Leahy. At this time we will enter into the record 
the statements of Senators Hatch and Thurmond.
    We are going to take a 3-minute break so that we can re-set 
up the table, and then we will start with Mr. Smith.
    [Recess 3:01 p.m. to 3:12 p.m.]
    Chairman Leahy. Mr. Smith, do you swear the testimony you 
are about to give before the committee will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    Judge Smith. I do.
    Chairman Leahy. Please be seated. And, Mr. Smith, you have 
members of your family here. Again, I know they have already 
been introduced once, but please introduce them again because I 
have a feeling that someday, somewhere in the family archives 
they will want to look back and see who was here.

  STATEMENT OF LAVENSKI R. SMITH, OF ARKANSAS, NOMINEE TO BE 
              CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT

    Judge Smith. Thank you, Mr. Chairman. I have with me my 
wife, Trendle Smith; my daughter, Stacia Smith; and my son, 
Gabriel Smith. With me in spirit, of course, is my father, who 
is deceased, and my mother, who is 76 and unable to physically 
travel and be here. And I certainly know that they are with me.
    Chairman Leahy. I am sure somewhere your father is looking 
down with pride.
    Judge Smith. I firmly believe that.
    Chairman Leahy. I have the same feeling about my parents 
every day. Miss them every day, but have the same feeling.
    Mr. Smith, did you have an opening statement you wish to 
make?
    Judge Smith. Nothing other than simply to express my 
gratitude for the privilege of being before the committee 
today.
    Chairman Leahy. Thank you very much. And could you pull the 
microphone just a little bit closer? Thank you.
    For about a quarter of a century, of the different nominees 
I almost always ask questions about stare decisis and how 
strongly judges think they should bind themselves to that 
doctrine, and even whether the commitment to stare decisis may 
vary from court to court.
    It is always easy to give the quick answer that it is the 
bedrock principle of our legal system that lower courts have to 
follow the rules of superior courts. But I have read a Law 
Review article recently where the author, who is a respected 
law professor, asserts his belief that a lower court, when 
faced with case law it thinks a higher court would overturn if 
the higher court considered the case, should take the 
responsibility upon itself and go ahead and reverse on its own.
    As I read it, the idea is the Supreme Court, for instance, 
has rules it follows about when to overturn precedent, and 
lower courts should be no less bound to follow those rules than 
they are to follow any other rule of a superior court.
    Do you subscribe to this theory in which lower courts would 
have to somehow decide whether a higher court is going to 
overturn precedent? Or do you think they have the right to 
overturn the precedents of higher courts?
    Judge Smith. Mr. Chairman, I agree with, I guess, the 
general sense of things regarding the importance of stare 
decisis, that confidence in our judicial system is one of the 
most important things that binds our democracy. And I would not 
be of the view that one should as a lower appellate judge take 
lightly the responsibility to follow previously decided cases 
to maintain consistency within our law.
    Chairman Leahy. Well, you say you generally follow the 
principle, but so does this law professor generally follow the 
principle of stare decisis, but raises the theory that if a 
lower court somehow intuits the idea that the circuit, for 
example, is going to go a certain way, then they have got a 
case before them that they should go that way really on their 
own rather than make the case go all the way up, get reversed, 
and go back.
    Do you subscribe to that more flexible thought of stare 
decisis?
    Judge Smith. As I sit here before you this afternoon, I 
can't consider or think of a specific case where I would vary 
from the responsibility to follow established precedent as an 
appellate judge.
    Chairman Leahy. Now, in your case, that would be, of 
course, your own court of appeals, but the court of appeals 
itself under certain circumstances can and has the ability to 
overturn its own precedents. Is that not correct?
    Judge Smith. Yes.
    Chairman Leahy. But would you hold that they, however, even 
in that regard, would be bound by the precedent of the only 
court above them, the Supreme Court?
    Judge Smith. Absolutely.
    Chairman Leahy. And without judges following--and I don't 
mean to put words in your mouth, so please feel free to correct 
me if you disagree. But would it be safe to say that without 
courts following stare decisis, you feel that there would not 
be the kind of continuity and consistency in the law that our 
courts should have?
    Judge Smith. Yes. My sense would be that overturning 
established precedent should be something that should occur 
very rarely.
    Chairman Leahy. Now, you know yourself that sometimes you 
look at an opinion of an appellate court, and you could find a 
kind of fractured opinion. It is sometimes hard to discern 
precisely on what a majority of the court has really agreed. It 
may agree on the final ruling, but you may have several 
different decisions there, and it is pretty hard to tell what 
is the rule of law. The Sixth Circuit recently had a long 
discussion about a case like that.
    What does the lower court do if they have a fractured 
opinion?
    Judge Smith. Well, that sometimes happens, of course. Our 
Supreme Court produces plurality opinions and opinions which 
reflect not a clear majority opinion. In those cases, it would 
have to be a very clear and very thorough analysis of the 
specifics of the case before the lower court determining just 
how close and just how--close in fact and law that case 
actually is to the established precedent. And certainly if it 
is, as the law professors would say, on all fours, then 
certainly that weighs heavily in favor of maintaining 
established rules.
    Chairman Leahy. Would it be your philosophy that judges 
should interpret the law, not make the law?
    Judge Smith. Yes.
    Chairman Leahy. Legislative bodies make the law.
    Judge Smith. Yes.
    Chairman Leahy. I ask that because in the past few years 
the Supreme Court struck down a number of Federal statutes, 
most notably several designed to protect the civil rights and 
prerogatives of our most vulnerable citizens. They have said 
this goes beyond Congress' power under Section 5 of the 
Fourteenth Amendment. The Supreme Court has also struck down a 
statute as being outside the authority granted to Congress by 
the Commerce Clause. And these cases have generally been 
described as creating some kind of new power for State 
governments, Federal authority being diminished because the 
Supreme Court has basically rewritten the laws of the Congress 
or set them aside and creating new powers for the State.
    At the same time, the Court has issued several decisions 
most notably in the environmental area where they grant States 
significant new authority over the use of land and water, 
notwithstanding longstanding Federal regulatory protection of 
the environment.
    So taken individually, the cases have raised concerns about 
the limitations imposed on congressional authority. Taken 
collectively, they appear to reflect a new federalism crafted 
by the Supreme Court where it would alter fundamentally the 
structure of our Government.
    Do you have a view on these developments?
    Judge Smith. Not in the particular developments that you 
describe in terms of the individual laws and issues that may be 
at issue in the question you raise. What I would respond to is, 
as part of our judicial system, the principle of judicial 
review of the acts of a legislative body certainly has a long 
and storied history in our legal system. The right or the power 
of an appellate court to declare unconstitutional an act of 
Congress or a State legislative body is something that should 
not be taken lightly, shouldn't be done on any basis that is 
not clearly an indication--where there is clear indication that 
the legislative body has acted outside the bounds of its 
authority under the Constitution.
    Chairman Leahy. Well, the Supreme Court, for example, has 
basically done away with a great deal of our copyright and 
patent laws, and while it is in the Constitution as it deals 
with states, and now we have a real problem. They basically 
said the states can steal somebody's copyrighted material and 
use it for themselves and benefit by it and nothing can be 
done. We have a pretty activist Supreme Court.
    Judge Smith. My approach would be to recognize that Acts of 
Congress are presumed constitutional and accord them the proper 
regard and deference that is required in a system of government 
of three branches such as we have, and would not in any measure 
view the role of the Court that I would serve on, if I am 
confirmed by this body, I would not view that as a super 
legislature to easily and lightly overturn or discard the acts 
of this body.
    Chairman Leahy. So you would look at least, ab initio, you 
would look at a congressional statute as being appropriately 
enacted?
    Judge Smith. Yes.
    Chairman Leahy. Realizing of course the courts can still 
overturn. I mean if the Congress acts outside the Constitution 
or the Congress exceeds its authority, they could do that, but 
it is your view that the law as passed, at least it starts off 
with a presumption that it was passed validly.
    Judge Smith. Yes.
    Chairman Leahy. And certainly I understand that if the U.S. 
Supreme Court had set aside a congressional statute, neither 
one of us questions the fact that then you are bound by that; 
is that correct? Are you bound by the--if you have again a case 
on all fours from the Supreme Court, you are bound by that?
    Judge Smith. Yes.
    Chairman Leahy. Thank you. Now you practiced law for 7 
years. I was looking back through the back ground material you 
gave us, the types of clients you had, the kind of cases you 
handled, did not give the opportunity to spend a great deal of 
time in Federal Court. In fact during the 7 years you practiced 
law, the matters you did have in Federal Court were for the 
Resolution Trust Company; am I correct in that?
    Judge Smith. Yes, Resolution Trust Corporation.
    Chairman Leahy. Corporation, I am sorry. Have you had 
experience in the Federal Appellate Courts including the Eighth 
Circuit?
    Judge Smith. Yes.
    Chairman Leahy. You have?
    Judge Smith. I have attended hearings at the Eighth Circuit 
in conjunction with those cases for Resolution Trust 
Corporation.
    Chairman Leahy. Have you argued cases in the Federal 
Appellate Courts?
    Judge Smith. No, I have not.
    Chairman Leahy. So the reason I ask this I think one of the 
great strengths of our Federal Bench is that people come from a 
whole lot of different categories. Quite often somebody going 
on the Court of Appeals, going on there from having served a 
number of years as a Federal District Judge or as an Appellate 
Judge of a State Court or one who spends a lot of time before 
it, you have been nominated for the seat of one of the most 
respected jurists in this country, Judge Richard Arnold, and 
one with decades of experience and all. You are going from 7 
years of practicing law, and never having argued a case before 
a Federal Court of Appeals, and with limited courtroom 
experience.
    Now, there are those who would say that that is making a 
large jump to the Court of Appeals as compared to another step 
initially. How would you respond to that because obviously you 
have heard those statements. I want you to have a chance. You 
do not often get a chance to answer critics, so here is your 
chance. Here is your microphone.
    Judge Smith. Thank you, Senator. I would respond this way. 
The experience that I have had I do believe qualifies me to 
serve not only the trial experience that I had, not only the 
attending experience that I had before the Eighth Circuit, and 
participating in the preparation of those appeals, but also my 
experience in other areas of Federal law, not specifically 
related to the actual practice of law. I served 2 years as 
Chairman of my State's Public Service Commission, regulating 
our State's electric, natural gas and telephone companies. I am 
now currently back in that capacity, and that position has 
required me to gain substantial familiarity with a number of 
Federal laws including the Federal Power Act, the Public 
Utilities Holding Company Act, the Telecommunications Act of 
1996 as well as numerous dockets which are currently pending 
before the Federal Energy Regulatory Commission. And in fact, I 
would submit that many of the issues that currently are in the 
Federal Courts relating to energy and telecommunications are as 
federally significant at present as patent law or any number of 
other Federal areas that an attorney may have obtained legal 
practice and qualification in in years past. So while my resume 
may not indicate that I tried a lot of cases in Federal Court, 
I certainly do have familiarity with Federal procedure and I do 
have familiarity with a number of substantive areas of Federal 
Law.
    Chairman Leahy. Well, let me ask you this. You were 
appointed for a short time to the Arkansas Supreme Court; is 
that right?
    Judge Smith. Yes.
    Chairman Leahy. And then you left that to run for a 
position on another court; these are elected positions in 
Arkansas, am I correct?
    Judge Smith. That is correct.
    Chairman Leahy. During that time there was a case, State v. 
Robbins, where the Arkansas Supreme Court presided over a death 
penalty case in which the defendant waived the right to appeal. 
The majority in that case noted that nearly every other state 
that has the death penalty requires an automatic review of the 
death sentence, whether or not a defendant waives the right to 
appeal. You dissented. Why?
    Judge Smith. It had to do with the specifics of the Robbins 
case. The facts of the Robbins case involved a young man who 
admitted I very graphic and clear terms in an unquestioned 
manner that he had committed a very brutal homicide upon a 
young woman. All the facts indicated there was not one ounce of 
question of doubt as to the culpability of the defendant for 
the crime. Under the circumstances of that case and compliance 
with the precedents under the--the then existing precedents 
under previously decided cases of the Arkansas Supreme Court. 
It was not my view that any additional appellate review would 
have provided any additional process for the defendant that 
would provide any reasonable alternative to the outcome.
    Subsequent to that, that case was reviewed. It did come 
back to our State Supreme Court. I joined unanimously with the 
remainder of the Court in that holding on review as that case 
came back to us on subsequent.
    Chairman Leahy. But originally you dissented from the 
majority opinion which was to allow the appeal; is that 
correct?
    Judge Smith. That is correct.
    Chairman Leahy. It is interesting because in the past few 
years 100 people on death row have been released within days 
from being executed where they found they had the wrong person. 
I can think of a couple where the people on death row had 
confessed in great detail to having committed the crime, and it 
was subsequently found they were not anywhere near the crime. 
They were of limited intellectual ability. Suggestion was made, 
like Senator Sessions, I am a former prosecutor. I remember 
that we had one person especially that every time any major 
crime was in the paper, he was immediately in the police 
station as soon as the paper came out, ``I did it.'' I mean we 
would tell him, ``Well, that happened 6 hours ago in California 
or Hawaii or something and we are in Vermont.'' He said, 
``Well, I did it.'' And there are people like that, that at 
least where DNA is shown, it was not them. Even though you know 
and I know that a lot of cases will have no DNA. But how do you 
feel considering the number of mistakes that have been made on 
death penalty cases, do you think that there should be an 
automatic review of death sentences by appellate courts?
    Judge Smith. Yes, I do.
    Chairman Leahy. Thank you. I will have further questions, 
but I want Senator Sessions to have a chance.
    Senator Sessions?
    Senator Sessions. Judge Smith, we are glad you are here. 
There can certainly be no question that you are qualified for 
the Eighth Circuit. You began your legal career as a staff 
attorney for the Ozark Legal Services, where you provided legal 
representation to the poor in Northwest Arkansas. After 4 years 
doing that, you opened your own law firm and handle all sorts 
of cases, including business law, real estate, domestic 
relations, workers compensation, public benefits and estates, 
just to name a few. You earned a reputation as a lawyer such 
that in January 1999, Governor Huckabee appointed you to the 
Arkansas Supreme Court.
    Currently you serve on the Arkansas Public Service 
Commission, which is responsible for regulating the State's 
electric, gas and telecommunications industries. Complex legal 
issues come up there, do they not?
    Judge Smith. Very complex.
    Senator Sessions. They certainly do. Your nomination is 
widely and bipartisanly supported in your home state. I think 
the Arkansas Democrat Gazette puts it best. It said, Judge 
Smith possesses, quote, ``integrity, intelligence and 
compassion,'' and I agree. And I will support you, Judge Smith, 
and we will work with our colleagues, and we are glad that we 
have had this hearing, and we hope to be able to move you 
timely to the floor for a vote. I know you have been waiting 
for a year now, and you will be glad to move forward.
    I also was pleased to note that you had been unanimously 
rated qualified by the American Bar Association. You know, 
Senator Leahy asked you about the standards for review on 
appeal, and I think you answered precisely correct, in accord 
with a great legal tradition of the United States to follow 
established precedent as you are able to do, and leaving it to 
the Supreme Court to change precedents. There will be occasions 
when a case will come before you and there is no appellate law 
there, and so you will have to make the first decision in the 
matter, but normally and frequently our appellate courts are 
required on a daily basis to follow the opinions of the Supreme 
Court and I am glad you are committed to that.
    Mr. Chairman, I do not think you would suggest, and I 
certainly do not, that merely because a Court strikes down a 
Federal statute that means that you are an activist Court, that 
sometimes statutes even we in this Congress pass are not 
constitutional. If they are not constitutional, then the Court 
has a duty but to strike them down. And our constitutional 
framework does call, for example, for an interstate commerce 
nexus before certain Federal actions can be taken and I believe 
that those words have meaning, that the Federal Government is a 
government is a government of limited powers and so on occasion 
when we exceed those powers, we expect the Court to strike them 
down.
    What would be improper, I think, Judge Smith, is if you had 
a belief in an outcome in a case and you really thought that 
the legislature should have done thus and so or a jury should 
have done thus and so or a lower court should have done 
something different from what they did, are you able, and will 
you commit to following the law even if the outcome of the case 
might be different then you personally would favor?
    Judge Smith. I certainly do.
    Senator Sessions. I think that is the key to any judge 
showing restraint and respect for law. If we do not respect the 
law, if we do not respect it as it is, if we think any judge 
can alter it for their highest ideals they may have, it means 
the next judge can do it too, and the next judge and the next 
judge, and pretty soon the legal system gets undermined, and it 
gets to be a dangerous matter, particularly when, as I think we 
all understand with Federal Judges, the appointment is for 
life, and you are not any more answerable to the public as you 
are as most state judges are.
    Mr. Smith, you have had quite a bit of litigation and 
experience in court, and you have tried cases, have you not?
    Judge Smith. Yes.
    Senator Sessions. You have had some interesting positions, 
but you have dealt with individual human beings who have 
problems with the legal system, but you also have been to court 
and handled cases in the courtroom.
    Judge Smith. Yes, sir.
    Senator Sessions. Many cases.
    Judge Smith. Yes, sir.
    Senator Sessions. Well, I think that is important. We have 
had nominees here that have never been to court, and I think 
when that occurs, we need to look for some countervailing 
strengths to overcome that weakness, and I believe you have 
broad-based support from your community. Both your Senators 
strongly support. Obviously the Governor of Arkansas is a 
believer in you. Your newspaper supports you.
    Mr. Chairman, I think we have a good nominee. I appreciate 
you moving it, and I appreciate your good questions.
    Chairman Leahy. Good to see Senator Sessions, following his 
withering cross-examination, has maintained an open mind.
    Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    And, Judge Smith, thank you for joining us today and thank 
you for your family joining us as well.
    The office which you are seeking is a very important one. 
It is the second highest Federal Court in the land. It is a 
lifetime appointment, and if some of the questions which you 
are facing today seem probative, it is because for some of us, 
it is the first time we have had a chance to meet with you and 
to really kind of explore what you are about, what your values 
are, and that is of course very important to us as we get into 
this discussion.
    Let me ask you, many years ago when you went into sole 
practice you said to the Arkansas Gazette, if you are properly 
quoted here, that you had a sincere desire to have an influence 
on law and the way things were being decided, and to approach 
it from a Christian perspective.
    Can you explain to me what you meant by that statement?
    Judge Smith. By that statement I mean simply this. The 
approach that I take to life is an approach that first gives 
due regard to everyone, recognizing that everyone deserves 
respect and courtesy. And in my practice of law I attempted to 
accord the courts before whom I practiced due regard and 
respect, the people for whom I served as counsel, to give them 
due regard and respect, to take seriously the legal concerns 
that they brought to me and entrusted into my care, and that I 
would take as a solemn obligation to perform my service for 
them to the very best of my ability.
    Senator Durbin. And of course as we look at your legal 
career, there are many times in legal services and in the law 
practice when you did represent--I remember from my own 
practice, you were representing some clients that were not the 
high rollers.
    Judge Smith. Definitely not.
    Senator Durbin. And they were people who were coming in 
with basic problems with automobiles and homes and things, and 
you were their attorney, and that speaks very well of you and 
your values.
    I guess the point I am trying to get to is this. On the 
Circuit Court you are of course going to be facing cases that 
involve many different American citizens with different values 
and different backgrounds. And some of them will not be 
Christians, they will be of other religious persuasions. I do 
not want to put words in your mouth, but do you feel that there 
is something different about your view of law, based on your 
religious belief, than the view of law that other Americans 
might have?
    Judge Smith. No. No, I do not think that there would be 
anything superior or substantially different about my approach 
to that of someone of a different faith or someone of no faith 
at all, but who approached the law with a sense of due regard 
for the unique privilege that it accords one to be a servant to 
others and to be entrusted with responsibilities in advocating 
and defending the rights of others.
    Senator Durbin. I think that is exactly the right answer. I 
hope others do too.
    Let me ask you about the Rutherford Institute. You were 
characterized as the Volunteer Executive Director of the 
Rutherford Institute in Arkansas for a period of time, and I 
think it was also a period of time when you had your own 
private practice.
    Judge Smith. Yes, that is correct.
    Senator Durbin. And as a volunteer, you clearly were not 
making a living as the Volunteer Executive Director. What is 
the Rutherford Institute?
    Judge Smith. The Rutherford Institute, at least during the 
time that I had any affiliation with it, was a nonprofit civil 
liberties organization that primarily focused on First 
Amendment family issues as well as some value of life issues.
    Senator Durbin. Can you give me example of the types of 
legal issues that you dealt with with the Rutherford Institute?
    Judge Smith. Some issues may have pertained to freedom of 
assembly, freedom of religion. I dealt in a number of advisory 
roles to churches and avoiding entanglements with the law, 
supervision of day cares, et cetera, to make sure that they 
were properly carrying out their responsibilities. The one case 
that I was a named counsel on for the Rutherford Institute was 
a case filed in Little Rock, I believe it was Unborn Child 
Amendment Committee v. Ward was the citation of the case, name 
of the case.
    Senator Durbin. Before we get to that case, what can you 
tell me about the Rutherford Institute? How are they financed?
    Judge Smith. To my knowledge, and at least during the time 
that I had any affiliation with Rutherford, which is now close 
to 10 years past, it was entirely donation.
    Senator Durbin. Were there any major sponsors, individual, 
corporate and otherwise?
    Judge Smith. I really do not know. I do not--there were 
none that I was aware of at the time that I had any affiliation 
with Rutherford.
    Senator Durbin. How did you become affiliated with them?
    Judge Smith. Through contact with the founder of the 
Rutherford Institute, Attorney John Whitehead.
    Senator Durbin. And he contacted you personally?
    Judge Smith. Yes.
    Senator Durbin. Is he from Arkansas?
    Judge Smith. He attended law school in Arkansas.
    Senator Durbin. But he lives in another state now?
    Judge Smith. Yes, I believe he lives in Virginia.
    Senator Durbin. Let me ask you about that case. And I guess 
the one thing that the staff found interesting is when we asked 
you to identify the 10 most significant cases that you had been 
involved in, you did not mention that case, and this was a case 
before the Arkansas Supreme Court on a very important issue 
involving a woman's right to choose or the issue of abortion. 
Is there a reason why you did not list that case?
    Judge Smith. Yes. I chose to list the cases that I had some 
significant legal involvement with other than I was named as 
counsel in that case, but I did very little of the actual 
litigation. And so the cases that I listed were cases that I 
handled principally or was significantly involved in a 
substantial way in the actual legal work.
    Senator Durbin. In the report of the case before the 
Supreme Court of Arkansas, you were listed as the lead 
attorney.
    Judge Smith. That would have been, David Nixon would have 
been the lead attorney in----
    Senator Durbin. He is listed as the next name. Lavenski R. 
Smith and David G. Nixon, Springdale, for appellants.
    Judge Smith. He actually argued the case. I did not argue 
the case before the Supreme Court.
    Senator Durbin. I would like to, if I have the time, spend 
a minute on this case, because it is an interesting issue that 
you may face as a Circuit Court Judge. First let me ask you 
this. As Senator Sessions has said, you are going to be asked 
to uphold some laws that you may disagree with. Now, the 
Circuit Courts of our country consider 50,000 cases a year, and 
many times their decisions lead to changes in the Court opinion 
of law. Can you tell us your view now of Roe v. Wade, the 
Supreme Court decision involving a woman's right to choose, and 
how you would enforce that decision?
    Judge Smith. Well, as I understand the current precedence 
of U.S. Supreme Court Roe and those cases decided subsequent to 
it are the law of the land, and it would be my obligation, and 
I would assume that obligation fully, to apply that law and 
enforce it. It would be my obligation to follow the precedence 
of the U.S. Supreme Court.
    Senator Durbin. Did you feel the position you took in this 
Ward case was consistent with Roe v. Wade?
    Judge Smith. At the time, yes. The case was not a case that 
I viewed in any way as an attempt to somehow not follow the 
U.S. Supreme Court. It was a case based on the Constitution of 
the State of Arkansas.
    Senator Durbin. And of course the Supreme Court of Arkansas 
ruled against you in that case and said that your legal 
argument did in fact violate the Arkansas, I guess, Amendment 
to the Constitution involving the funding of abortion; is that 
correct?
    Judge Smith. Well, the--as I recall, the holding of the 
State Supreme Court was that there was not--it was not 
demonstrated that the actions of the hospital in question were 
in contravention of the Unborn Child Amendment.
    Senator Durbin. That is right. And I think they said 
specifically that the Arkansas Constitution, the Amendment that 
was agreed to by the people of Arkansas, said no public funds 
were used to pay for an abortion. You argued to the Court, I 
believe, that the University of Arkansas Medical Sciences 
Facility, because it was sustained by public funds, was at 
least indirectly in violation of that constitutional provision. 
Was that the basis of your argument?
    Judge Smith. That was essentially the argument.
    Senator Durbin. And the Supreme Court ruled otherwise.
    Judge Smith. Yes.
    Senator Durbin. What I am trying to get to is this: I can 
understand as a former attorney and trial court lawyer and 
such, you seek an advocacy position for your client or you are 
not doing the job for them. Now, I am trying to put you in this 
new role as a Circuit Court Judge and ask you, as you step back 
from the fact pattern in this case, do you have any problems 
with their conclusion that Roe v. Wade and the Arkansas 
Constitution, consistent in terms of guaranteeing a woman's 
right to choose?
    Judge Smith. Senator, if I am fortunate enough to be 
confirmed by this body, I will enforce the precedence of the 
U.S. Supreme Court and would view that as my solemn obligation.
    Senator Durbin. [Presiding] OK, thank you. Thank you very 
much.
    I do not have any further questions. I do not know if 
Senator Sessions does, or if Senator Leahy when he returns.
    Senator Sessions. Yes, briefly on the subject, because 
these are issues that people care about, but really I think 
most of the time we are just talking about simple legal issues 
that people disagree on. Your concern was that there was a 
Arkansas Supreme Court provision adopted by a vote of the 
people of Arkansas, that would prohibit public funds for the 
purposes of performing abortions except when the life of the 
mother is at stake. Is that basically correct?
    Judge Smith. Yes. It was an Amendment to the Arkansas 
Constitution.
    Senator Sessions. And so the question was whether or not in 
utilizing public hospitals that are funded by the State, that 
that was in violation of that Constitutional Amendment, and the 
Arkansas Supreme Court held that contrary to your argument or 
the argument of attorneys on your side, that funds did not 
prohibit the use of facilities, but did agree with you that to 
the extent, and I am quoting now, quote: ``To the extent a 
State hospital incurs actual cost in performing and abortion 
and these costs go uncharged and unpaid by the parties, public 
funds are being used to pay for abortions,'' close quote, in 
violation of it.
    So anyway it is a complex issue, and I do not think your 
position was out of leftfield, that you are a lawyer 
representing a action and taking it to Court, and you got your 
day in Court, and the Court agreed with you on some and did not 
agree with you on others.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    And Senator Durbin may have asked this, but am I correct 
that you are not currently affiliated with the Rutherford 
Institute in any way?
    Judge Smith. That is correct.
    Chairman Leahy. Were you affiliated with them in any way at 
all except from 1991 to 1993?
    Judge Smith. No. Those dates I think are accurate, but the 
only affiliation I had was temporarily as a State Executive 
Director, and Rutherford abandoned its state chapter 
organization many years ago.
    Chairman Leahy. Any further questions?
    Senator Sessions. Can I followup on one point?
    Chairman Leahy. You can take all the time you want; you are 
good enough to stay here for this hearing.
    Senator Sessions. I believe you were asked about when you 
began your legal services career. You said you like to bring a 
Christian perspective to your practice. Was it legal services 
career or----
    Judge Smith. No, that was--I had begun my private practice.
    Senator Sessions. Your private practice. Did that mean that 
you would not seek to advocate the best legal issues and 
positions possible for your client, so in any way that you 
would fail to follow the law as written?
    Judge Smith. No, it did not mean that at all.
    Senator Sessions. I presume it had more to how you intended 
to relate to your clients?
    Judge Smith. Precisely.
    Senator Sessions. And your personal caring for them.
    Judge Smith. Senator, if I can give you an example, I had a 
gentleman come to me for a divorce. His wife had filed a 
divorce complaint against him. We began the process of 
attempting to work out an amicable dissolution of that 
marriage. He came back to me another day completely livid with 
how things were progressing, and stood in front of my desk and 
asked me could I get mean, meaning, I suppose, that he would 
like for me to take a very aggressive stance in the contest of 
his divorce proceeding. My approach, and I explained it to him 
this way, ``Yes, I can get mean if that is''--and I told him 
what that would mean in terms of how it might be commonly 
understood by those in the practice of the law. But I told him 
that I would not, and that that was not what was in the best 
interest of his children, and of the dissolution of his 
marriage. And we discussed it, discussed the pros and cons to 
how--the alternatives to approach his case. And after he calmed 
down I think he saw that the appropriate way to continue the 
case was not to acerbate the emotions of the parties.
    Senator Sessions. I think I hear more judges and older 
lawyers tell me that there is too little of that in the 
practice today, too little civility, too little concern, and 
too much concern for winning. I think you have got the kind of 
values that would be helpful to our judicial system. Thank you 
very much.
    Chairman Leahy. Mr. Smith, when I look at a judicial 
nomination, I look at a number of things, and I voted on--of 
those that have come before us, I voted for probably 99 percent 
of President Ford's, President Carter's, President Reagan's, 
former President Bush, President Clinton's, and now all but a 
couple of the ones that have come here so far from the current 
President Bush. But the issue I look at and what determines my 
vote is obviously the questions of qualification, how much 
experience has a person had, how prepared are they to walk out 
of this room today and into that courtroom tomorrow, but how 
they treat people who come before them. I do not particularly 
care whether a person is a Republican or a Democrat when they 
are coming to go on the bench. What I want to know is if I come 
into that courtroom as a litigant, or my neighbor who has 
different political affiliations than I do comes in that 
courtroom as litigant, or whether it is a rich person or a poor 
person, plaintiff or defendant, popular cause or unpopular 
cause, are they going to be treated the same? Are they going to 
look at their judge and say, ``I know I will have a fair 
hearing. The Judge and I may come from different backgrounds. 
The Judge and I may have different past political affiliations, 
whatever it might be. But I know I am going to get treated 
fairly. I am going to win or lose based on what my case is,'' 
which is of course what the courts are supposed to be. They are 
not supposed to be somebody shifted ideologically to the far 
right or ideologically to the far left. They are supposed to be 
there so everyone, so any person in this room or any person 
walking down the street out front could look at whatever court 
that was and say, ``I am going to be treated fairly.'' And when 
I voted no on a judge, basically it wa because I felt they 
could not do that.
    I mean a judge, a Federal Judge has a very powerful 
position, and everybody is always going to say the right things 
when they come here. And once they are confirmed, they are 
there for life. We have had some nominees come here and told us 
one thing and once they got confirmed, they had done something 
else. There is not much we can do about it. But if you are 
confirmed, I would hope you would think there is more than just 
the legal issues, it is a question of forcing yourself to be 
absolutely fair. What if somebody comes in with a position you 
may feel is an unpopular one, or a popular one, either way, you 
have got to be even-handed. In other words, you do not hold the 
unpopular position against somebody any more than you would 
hold the popular one for them. You would have to look at it 
really straight down the middle. Otherwise our Federal Court 
systems fall apart. We have a Federal Court system that is 
respected when it is seen as impartial and independent. The 
public loses that respect when it is seen otherwise.
    Judge Smith. I agree entirely.
    Chairman Leahy. Thank you. Mr. Smith, I would like to have 
you and your family here--are there further questions? The 
record of course will stay open for Senators on either side, 
Senator Hatch or anybody else to submit questions if they want, 
and I thank you for being here. I certainly do not feel that 
you have to stay longer. By this time probably everybody with 
you and your family probably stayed long enough, and we will 
recess for 3 minutes while we set up the table for the panel of 
the District Judge nominees. Thank you, sir.
    Judge Smith. Thank you very much for your consideration.
    [The biographical information of Judge Smith follows.]

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    [Recess from 3:58 p.m. to 4:01 p.m.]
    Chairman Leahy. Is everybody here? If you all raise your 
right hand.
    Do you swear the testimony you are about to give before 
this committee should be the truth, the whole truth and nothing 
but the truth, so help you God?
    Judge Autrey. I do.
    Mr. Dorr. I do.
    Judge Hudson. I do.
    Ms. St. Eve. I do?
    Mr. Savage. I do.
    Chairman Leahy. The record can show that all answered in 
the affirmative. Please sit down.
    So we can have this for the record, we can start. Judge 
Autrey, would you please introduce whoever is here with you? 
Some day you are going to look back on this and be glad you got 
it on the record.

   STATEMENT OF HENRY E. AUTREY, OF MISSOURI, NOMINEE TO BE 
   DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI

    Judge Autrey. Mr. Chairman, I would like to introduce my 
lovely wife, Mary, who is here I think, unless she stepped out 
too. She did step out. But she is here.
    Chairman Leahy. We are going to show her as being here. And 
who else?
    Judge Autrey. Just my wife and I. The kids are Emily and 
Fritz, are at home and school. And my mother and father are 
both deceased, although I know they are here in spirit, because 
it is because of them that I am here today.
    Chairman Leahy. Thank you. I am sure it would be a proud 
day for them. As I said earlier, we have to assume they know.
    Judge Autrey. Indeed.
    Chairman Leahy. Mr. Dorr.

   STATEMENT OF RICHARD E. DORR, OF MISSOURI, NOMINEE TO BE 
   DISTRICT COURT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI

    Mr. Dorr. Mr. Chairman, I would like to introduce my wife, 
Barbie and my son, Scott.
    Chairman Leahy. It is good to have you both here.
    Mr. Hudson. You had along drive to get here.

   STATEMENT OF HENRY E. HUDSON, OF VIRGINIA, NOMINEE TO BE 
   DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA

    Judge Hudson. In the traffic in Northern Virginia, yes, 
sir.
    Chairman Leahy. I know, I know that traffic.
    Judge Hudson. I would like to introduce, Mr. Chairman, my 
wife Tara, my son Kevin, my brother and sister-in-law Lance and 
Jessica Lydon, and my law clerk Julie Gossman, who is here 
today to give me some support.
    Chairman Leahy. Well, you are no stranger to this room, 
having been here a number of times before in various 
capacities.
    Ms. St. Eve.

    STATEMENT OF AMY J. ST. EVE, OF ILLINOIS, NOMINEE TO BE 
   DISTRICT COURT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS

    Ms. St. Eve. Thank you, Mr. Chairman. I would like to 
introduce my husband Howard, my oldest daughter Lauren who is 
4-1/2. Our 20-month old Emily we left at home, otherwise you 
would hear her. And Brett, our 6-week-old son who you have 
already heard from. Also my sister-in-law Amy Cima, and my 
niece Alessia Cima. Thank you.
    Chairman Leahy. Thank you very much.
    Mr. Savage.

STATEMENT OF TIMOTHY J. SAVAGE, OF PENNSYLVANIA, NOMINEE TO BE 
 DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

    Mr. Savage. Thank you, Mr. Chairman. I would like to 
introduce my wife and best friend, Linda. My eldest son Tim is 
not here, but my grandson, his son Patrick is here. My middle 
son Daniel, and his son, our grandson, Daniel, Jr., and our 
youngest son Christian, and my brother-in-law Paul Brisgone.
    Chairman Leahy. Good to have you all here. And if I might 
begin, Judge Autrey, you worked on a number of bar association 
committees that work and improve the judicial system I think 
since the year 2000, and correct me if I am wrong on this, you 
have served on the Missouri Bar Agenda Bias Committee and the 
Missouri Legal Services Oversight Committee. These are 
basically pro bono things, are they not?
    Judge Autrey. That is correct, Mr. Chairman.
    Chairman Leahy. I am a strong advocate of people doing pro 
bono work. Those that come before us for confirmation simply, 
because it gives them a different experience than just the 
normal facts of law. How do you feel this has helped you? I 
mean you have worked a number of different areas. How does the 
experience of these pro bono operations help you in what you 
feel a Federal District Judge should be?
    Judge Autrey. I appreciate the opportunity to answer that 
question, Mr. Chairman, because it is my life and career as a 
lawyer and as a member of the Court has been dedicated to 
serving people within the community, regardless of who they may 
be from where they may be whether they are rich or poor, 
regardless of their religion or race. And the pro bono 
experience that I have had specifically outside of any 
committee work that I have been involved in as a member of the 
bench or as a lawyer has mostly been, almost entirely been 
related to helping persons who have been victimized in one way 
or another, beginning with my career as an intern for Legal 
Services for Eastern Missouri while a law student my third 
year, and then moving on during my tenure as a prosecutor in 
the city of St. Louis in the Office of the Circuit Attorney.
    You know, with respect to the Prosecutor's office, the 
fiction was, and I think still is, that we represent an entity, 
the State. In my view as a prosecutor and the view of many 
other prosecutors that I worked with in that office was that 
our true client was the individual victim who had been 
victimized either by robbery or burglarized or sexually 
assaulted. The pay that we received as public servants was far 
greater than any pay that any of my colleagues received who 
went on to the prior practice of law. Many of them joke that in 
essence we were doing pro bono work because of our salary in 
relation to the salaries that many of them receive.
    So the wealth of my experience has been in essence dealing 
with pro bono circumstances. I think that has served me well, 
and will serve me well should I be fortunate and privileged 
enough to be confirmed by this committee, to deal with and 
resolve issues that appear before me from members of the 
community at large, members at the society at large, members of 
this Nation, regardless of their position, status, race or 
background. I think that is what the job is all about as a 
Judge.
    Chairman Leahy. Do you feel that pro bono work is important 
for somebody who may be considered for the bar?
    Judge Autrey. I think pro bono work----
    Chairman Leahy. Or maybe I should ask you this. Not 
necessarily for the bench, but how about this. Do you feel it 
is important for lawyers, who after all do have a privileged 
part in society in most cases, to do pro bono work?
    Judge Autrey. I would agree with you, Mr. Chairman, that 
being a lawyer in America is a privilege, and as it is a 
privilege, it has a heightened duty of service for those who 
are granted the privilege to occupy themselves as practitioners 
of the law. I think that pro bono work is the heart and soul of 
the practice of law because the practice of law is 
fundamentally about providing services, and it is fundamentally 
about providing services for those persons that have legal 
issues and legal problems and they don't have the skills and 
the ability to address those particular issues themselves. 
They're not trained in the practice or in the art of the law as 
we are as attorneys, and to pay back, if you will, for the 
privilege of serving, I think that all lawyers should provide 
pro bono services for those individuals that need it, who 
otherwise may not be able to redress issues that are personal 
to them in a court of law.
    Chairman Leahy. And Judge Autrey, would it be safe to say 
that you have no problems with the well-established tradition 
of stare decisis?
    Judge Autrey. Stare decisis and the duty to follow 
precedent is the fulcrum of our legal system. It is that aspect 
which provides continuity, provides consistency, and it 
provides the public a degree of predictability as to what the 
outcome of their case may be. I think without it we would be in 
serious disarray.
    Chairman Leahy. You may have heard the discussion I had 
earlier about trying to guess the direction of a court may be 
going--would you agree with me that that might be a little bit 
dangerous to take that kind of leap of faith, that you know 
which way the appellate court is going, or more specifically, 
would it be a kind of dangerous leap of faith to assume the 
appellate court is going to overturn precedent?
    Judge Autrey. Well, Mr. Chairman, I have been a trial judge 
at the State level in the city of St. Louis in Missouri since 
1986, and it was my view before I came onto the bench as a 
trial judge, and it would be my view as a trial judge at the 
Federal District level for the Eastern District of Missouri if 
I am privileged enough to get the confirmation vote, that it 
would be my duty to follow the law, particularly as a trial 
judge. You're not in a position to make law, if you will, and I 
don't mean that from a legislative standpoint, but I mean it 
from a creative legal analysis standpoint. It is the primary 
duty of a trial judge to follow existing precedent, and to 
apply it effectively to the facts and circumstances that are 
before him or her at the time.
    Chairman Leahy. A trial judge does not get an awful lot of 
legal room, a lot of wiggle room.
    Judge Autrey. Very little, and sometimes I find, Mr. 
Chairman, if you start wiggling, you have some big problems.
    Chairman Leahy. I understand. I have been in those courts. 
I know.
    Mr. Dorr, your professional experience as a lawyer is 
focused generally on civil practice.
    Senator Sessions. Mr. Chairman, could I interrupt you 1 
second?
    Chairman Leahy. Of course you can. You have been good 
enough to stay here all day. You can do whatever you want.
    Senator Sessions. It is always wonderful, and this is an 
important time for these excellent nominees and their families, 
and I thank you for the courtesy you have shown to them, and 
the respect you have shown to them.
    I want to introduce in the record some general remarks 
about all the nominees, but I did want to say how much, how 
pleased I was to see Henry Hudson. Judge Hudson, it is good to 
see you. We served as United States Attorneys together, and 
during that time on the U.S. Attorneys Advisory Committee, I 
got to know Henry well. He led the Operation Ill Wind 
investigation, which I think would probably represent the most 
significant Federal prosecution of defense fraud activities 
ever prosecuted in this country's history. 54 people were 
convicted by his office. A lot of people wanted to tell him how 
to do it. He did it like he wanted to, according to justice and 
what he believed was right. He was aggressive, and there was a 
lot of howling and gnashing of teeth, but you did justice, 
Henry, and I think the entire defense industry is a lot better 
today than it was.
    Judge Hudson. Thank you for your kind words, Senator.
    Chairman Leahy. Judge Hudson, we are moving Senator 
Sessions slightly out of the undecided column on your 
nomination. And I am taking, that is on a leap of faith right 
there.
    Senator Sessions. And Senator Thurmond also wanted to have 
his statement put in the record, and I know he also has known 
Mr. Hudson, and particularly commented on his personal 
knowledge of his abilities.
    Chairman Leahy. We will put all statements in the record of 
course. The record will stay open for questions that other 
Senators may have.
    Mr. Dorr, as I was saying before, you have been generally 
civil practice, commercial litigation, real estate issues, 
employment law and so on. I take that from your questionnaire. 
You said about 2 percent has focused on criminal matters. 
Unfortunately or fortunately, as Judge Hudson and I and Senator 
Sessions were all former prosecutors, and we know that in the 
courts it is getting more and more criminal cases. Whether they 
like it or not, even to the extent of squeezing a lot of 
important civil cases.
    How do you get up to speed to handle criminal matters which 
are in many areas a lot different than the civil matters you 
have handled?
    Mr. Dorr. I understand that question, and I have had some 
experience. It's been a few years ago, but in the military I 
did prosecute and defend. In those days we switched back and 
forth on the workload there, so for 5 years I had that, and I 
haven't forgotten those experiences.
    I will, in terms of what I will do, I, if I'm fortunate 
enough to go forward, I will do what it takes to get up to 
speed. I've talked to the judges, some of the judges in the 
Western District, who likewise did not come from a criminal law 
background. They've indicated they didn't have a problem and 
didn't think it would be a problem. I feel like I can likewise 
be a good listener, do what I need to do to put the time in to 
read and understand it, but I really have not felt that it 
would be that much of a challenge for me.
    Chairman Leahy. The military, that was with the Air Force; 
is that correct?
    Mr. Dorr. Yes, it was.
    Chairman Leahy. Going through the background, you have 
taken a number of pro bono cases from Legal Aid. You should be 
very proud of having received the Equal Access to Justice Award 
from the Springfield Metropolitan Bar. You are an original 
Incorporator of the Partners with Youth Foundation, raising 
funds to provide assistance to low-income students to help 
them, to spend in school activities. I mentioned also, 
following up with what I said with Judge Autrey before, I think 
lawyers have responsibility to do that kind of thing. I commend 
you for it.
    Mr. Dorr. Thank you.
    Chairman Leahy. Not to embarrass you here, but you are not 
about to come up with that, so I will do it for you. The law 
firm I was in when I first started practicing law in Vermont, 
we were told by the senior partner, a very conservative, 
cantankerous pillar of the Republican Party, but actually that 
time, that is the only party that was, that we are going to do 
pro bono work, all of us, and we did, which included, as he 
would remind us at Christmas time, he would ring the bell on 
our main shopping street for several hours each day around 
Christmas time for the Salvation Army. And you have to 
understand this is outdoors in Vermont in December. And he was 
sure the young lawyers would volunteer an equal time. You had 
better believe that we volunteered, at least an hour or more.
    Mr. Hudson, you have been serving as a Judge in the Fairfax 
County Circuit Court since 1998?
    Judge Hudson. Since 1998, yes, sir.
    Chairman Leahy. That is what I thought. You were a 
prosecutor for over 20 years, and a very active prosecutor. I 
am a part-time resident of the Commonwealth of Virginia. I know 
what you mean about traffic, which has gotten considerably 
worse in 25 years here, at least in Northern Virginia.
    Anybody who has been here during that time has seen your 
name over and over again in the press, and your work as a 
prosecutor, cracking down on burglars, drugs, sexual assault 
and so on.
    Now, some defense lawyers--and you have heard this before--
raise concerns about your ability to be fair to all parties. 
They said you are unyielding, rigid, not interested in even-
handed justice. In March 1999 the Washington Post said as a 
Judge you raised an objection on behalf of the prosecution and 
sustained it, even though the prosecutor had not moved, 
although you said that you were going to take an effort not to 
do that in the future.
    I am asking these questions not to embarrass you, but to 
give you a chance to speak to them. I was a prosecutor. I was 
picked as--back when they used to do that--the National DA's 
picked me as one of the three outstanding prosecutors in the 
country. I considered myself a tough prosecutor but I 
considered myself a fair one. I also felt that a prosecutor had 
to be pretty--while we wanted to win, also had to win fairly, 
just to set the standards for everybody from the police all the 
way up, and also to maintain the credibility of the office so 
that courts would know they are being fair. Courts of course 
have even a greater thing. In a Federal Court you cannot have 
somebody come in and say, ``I am the defendant. I am 
automatically dead if I come in that court.'' Or if I'm the 
plaintiff, ``I'm automatically dead if I come in that court.''
    How do you assure us you would be even-handed in a court 
where even-handedness has to be the standard, there can be no 
other standard?
    Judge Hudson. Mr. Chairman, it's been about 10 years since 
I was a prosecutor, maybe more than that. I actually did some 
defense work for quite a while and handled a number of criminal 
defense cases.
    When I became a Circuit Court Judge in Fairfax County, you 
are absolutely right, that was a consideration a lot of people 
had. However, I think my track record as a Circuit Court Judge 
in the last 3-1/2 years has demonstrated that I can be even, 
that I can see both sides of the issue and I can be fair and 
compassionate.
    Some of the comments that have come out from the criminal 
defense bar after my nomination to this position have been just 
the opposite. The head of the Criminal Defense Lawyers in 
Virginia indicated that he was surprised at how fair I had been 
and what a balanced job I had done as a Circuit Court Judge.
    From the number of letters you may have received, Mr. 
Chairman, from members of the bar in Fairfax County, who 
indicate that I have striven to be balanced, to be fair, to 
consider all sides of the issue. Sometimes I find people 
guilty, sometimes I find them not guilty. I don't owe any 
allegiance to either side. I call them as I see them.
    Additionally, when the American Bar Association did my 
investigation, that was one of the things the investigators 
said ``We're going to focus on.'' And he was surprised at how 
balanced my record is and how high marks I get from lawyers who 
practice in my court, because they gave me, as you know, the 
majority rating of well qualified.
    So I think any notion that I can't be fair has been far 
overcome by what I have done in the 3-1/2 years as a Circuit 
Court Judge.
    Chairman Leahy. Thank you. There will be some followup 
questions. Also Senator Warner and Senator Allen have other 
letters on your behalf, which all of these will be part of the 
record. And if I look like I am rushing it is partly because 
this vote has begun, and if I do not complete this panel before 
I have to go to vote, you are all going to get stuck here till 
about 7 tonight, and you do not want that.
    Judge Hudson. So I can enlarge on my answer with just one 
more thing, sir?
    Chairman Leahy. Of course.
    Judge Hudson. Senator, you mentioned a comment that I made 
to my good friend, the reporter from the Washington Post that 
did that article about me, and it is something I did the first 
week or two on the bench. I did sustain my own objection, which 
is a frequent practice in Virginia I might add, that every 
judge I have ever clerked for has done that. I don't do that 
any more. I recognize that's inappropriate, and I learn by my 
mistakes.
    Chairman Leahy. I kind of wondered on that one, because I 
remember when I was prosecuting cases I had a number of times 
when I know I could object, but I did not, because one I did 
not want to have the jury see me object too much, but I also 
knew that they were about to get into an area that if I did not 
object, I had a lot of room on redirect that I would not have 
had otherwise, and so I was delighted to let them go down the 
primrose path.
    Judge Hudson. The only reason I would ever do that, Mr. 
Chairman, would be to prevent a mistrial.
    Chairman Leahy. Yes, of course. And there a judge, I think 
we both agree, a judge should do everything possible to avoid 
having to have a mistrial, and one can argue that that is in 
the better interest of justice itself.
    Ms. St. Eve, talking about trying a case close to the time 
you were going to deliver. We have one of the attorneys here 
who is a former prosecutor on my staff who had a major 
organized crime case in New York, finished her summation to the 
jury, while the jury was out deliberating, went and had her 
baby. She won the case incidentally.
    Ms. St. Eve. I wasn't quite that close.
    Chairman Leahy. You have been practicing law for a 
relatively short time. I can assume your answer to this, other 
questions. Do you feel ready to step into what are enormous 
responsibilities, and with some people literally are going to 
be life and death responsibilities as a Federal Judge?
    Ms. St. Eve. Yes, Mr. Chairman, I do. And I certainly 
realize the big shoes that I'll be stepping into. During the 12 
years I have been practicing law I've been fortunate enough to 
see all sides. I've been a criminal prosecutor. I've been a 
defense lawyer. I'm in house now. I've practice criminal law. I 
practiced civil law. And I feel that that wide variety of 
experience has prepared me for this position.
    Chairman Leahy. In case anybody sitting here thinks that 
you are getting off very easy, there are going to be a couple 
of followup questions, but I did want to get to Mr. Savage.
    You're a sole practitioner, am I correct, Mr. Savage?
    Mr. Savage. That is correct, Senator.
    Chairman Leahy. And that's criminal, commercial, personal 
injury litigation, that type of thing?
    Mr. Savage. That's correct.
    Chairman Leahy. But did you not serve as a Judge Pro Tem in 
the Court of Common Please?
    Mr. Savage. In Philadelphia, the Court of Common Pleas, I 
did. I still do.
    Chairman Leahy. Thank you. You have also been a mediator 
and hearing examiner. Tell me about that. Does that--do you 
feel the experience you have had as that will serve you well or 
be irrelevant as a Federal Judge? How is that for a nice 
softball? If you cannot hit that one of the park, you do not 
deserve to be on the bench.
    Mr. Savage. The answer is yes, Senator. I'm not going to 
disagree.
    Chairman Leahy. But as a mediator, is it fair to say you 
have got to really pay attention to both sides when you come in 
there?
    Mr. Savage. I believe you do, and that mediation service 
was with the Eastern District of Pennsylvania Federal Court.
    Chairman Leahy. I also notice your pro bono activities.
    I will recess at this point. We will keep the record open 
for other Senators' statements, Senator Hatch and others, and 
for followup questions. I would urge and tell staff to notify 
your Senators. I would like, if there are followup questions, 
in very quickly out of courtesy to the nominees so that they 
will not have this matter hanging.
    And I thank all of you for the courtesy and the time that 
you took. And we did not give all of you a chance to mention 
your family here. Mr. Savage, you did not?
    Mr. Savage. Yes, I did.
    Chairman Leahy. I want to make sure. With the interruptions 
I have been getting back here, I wanted to make sure I got all 
of you. Fine. Thank you.
    [The biographical information of Judge Autrey, Mr. Dorr, 
Judge Hudson, Ms. St. Eve, and Mr. Savage follow.]

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NOMINATION OF JOHN M. ROGERS, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH 
CIRCUIT; DAVID S. CERCONE, NOMINEE TO BE DISTRICT JUDGE OF THE WESTERN 
  DISTRICT OF PENNSYLVANIA; KENNETH A. MARRA, NOMINEE TO BE DISTRICT 
  JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; MORRISON COHEN ENGLAND, 
     JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
 CALIFORNIA; AND LAWRENCE GREENFELD, NOMINEE TO BE DIRECTOR, BUREAU OF 
               JUSTICE STATISTICS, DEPARTMENT OF JUSTICE

                              ----------                              


                        THURSDAY, JUNE 13, 2002

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:05 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein presiding.
    Present: Senators Feinstein, Feingold, Specter, and 
McConnell.

  PRESENTATION OF MORRISON COHEN ENGLAND, JR., NOMINEE TO BE 
 DISTRICT JUDGE FOR TH EASTERN DISTRICT OF CALIFORNIA BY HON. 
 DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. I am going to open the hearing. I am 
substituting for Senator Feingold, who asked that I do this, 
and I will turn over the gavel to Senator McConnell as soon as 
he comes. But in the interest of time, I thought it would be a 
good idea to begin.
    This hearing will cover four of President Bush's judicial 
nominees, along with the nominee to head the Department of 
Justice's Bureau of Justice Statistics. And before we begin the 
hearing from the nominees, we will first hear from members of 
this committee, as well as other Senators and Members of 
Congress on panel one who wish to speak. And I see Senator 
Bunning already present.
    I would like to enter into the record the statement by the 
chairman of the committee, Patrick Leahy, without objection.
    Senator Feinstein. I would indicate that the record will 
remain open to the close of day for any statements to be placed 
therein. And I would like to begin by delivering a statement on 
Morrison England, who is a nominee from California. And, Judge 
England, would you stand so that everybody might see you and 
welcome you. We are delighted that you are here with us today.
    Judge England is--you may sit down. Thank you.
    Judge England is the third candidate to come out of 
California's Judicial Advisory Committee, and I think it is a 
testament to his ability that the committee forwarded his name 
to President Bush with a unanimous 6-0 vote. That means that 
three Republicans and three Democrats all voted for him.
    President Bush nominated Judge England to the district 
court on March 21st, and I want to thank Senator Leahy for 
scheduling this hearing so expeditiously.
    Judge England is joined by his wife, Nancy. Would you 
please stand for a moment? Thank you very much. And she is a 
pharmacist with the Pharmaceutical Care Network.
    I also know that he is joined in spirit by his son, John, 
and his step-children, Natalie and Clayton, whose school 
obligations prevented them from making the trip.
    Judge England has firm roots in the Sacramento community, 
having spent his last 30 years in the Sacramento area. He 
obtained his undergraduate and law degrees from the University 
of the Pacific. A star football player in college, he briefly 
interrupted his studies in 1976 to play football for the New 
York Jets.
    After law school, he spent over 10 years in private 
practice, rising to the position of main partner in the firm of 
Quattrin, Johnson Campora & England. His practice focused on 
business and real estate transactions.
    In 1996, Judge England was appointed to the Sacramento 
County Superior Court. During his tenure on the court, he has 
taken on some of the toughest assignments. Among other things, 
he oversees cases on the court's accelerated civil trial 
program, and he handles the more complex civil and criminal 
trials.
    The legal community in the Sacramento area has given him 
glowing marks. Sacramento Superior Court Judge David DeAlba 
observes that Judge England has an outstanding reputation as a 
jurist who is firm, fair, understanding, and compassionate.
    District Court Judge Martin Jenkins writes that Judge 
England is an exceptional judge and praises him for his superb 
legal mind, his courtroom demeanor, and his commitment to the 
rule of law.
    California State Appellate Judge Connie Callahan wrote that 
Judge England has widespread support in the Eastern District, 
including, but not limited to, the legal community, the 
judiciary, law enforcement, business, and charitable 
organizations.
    And Donald Steed, president of the Sacramento County 
District Attorneys Association, said England would be a great 
addition to the Federal bench and praised him for his fairness, 
compassion, strength of character, and judicial knowledge.
    So given such high praise, it is not surprising that a 
substantial majority of the American Bar Association's Standing 
Committee on the Federal Judiciary found Judge England to be 
well qualified.
    I would just like to also note that he has been a member of 
the Judge Advocate General's Corps for the United States Army 
Reserve since 1988. He currently holds the rank of Major and is 
a senior defense counsel for the 22nd Legal Support 
Organization.
    Because the screening panel that Senator Boxer and I 
negotiated with Mr. Parsky on behalf of the White House has had 
some complaining in the press, I want to say that these 
committees in each of the districts are comprised of three 
Republicans and three Democrats. And the fact of the matter is 
that it has taken partisanship away from the judging, which I 
think is just terrific.
    Judge England comes out of that process with a 6-0 vote, 
and I am also proud to say that as of today all of the 
nominations have come out--eight people nominated to the 
President for two additional spots in California. And I just 
want to say I am very proud of the functioning of our screening 
panel, and I am very thankful to Mr. Jerry Parsky for 
suggesting it, putting it together, monitoring it, and 
overseeing it in the State of California. It is alive, it is 
well, and it is working, I think, in a fine way.
    That completes my remarks, and I would now like to turn the 
gavel over to Senator McConnell, if I might, and ask that he 
conduct this hearing.
    Senator McConnell. [Presiding.] Thank you very much, 
Senator Feinstein. I am trying to get myself oriented here. 
Where are we?
    Senator Feinstein. Right now we are on members' remarks, if 
you have remarks to make, and then Senator Bunning was here 
first, so he would probably be the first one, and then Senator 
Santorum, to make comments about their nominees.
    Senator McConnell. Okay. Thank you very much.
    Senator Feinstein. Right.

PRESENTATION OF JOHN M. ROGERS, NOMINEE TO BE CIRCUIT JUDGE FOR 
THE SIXTH CIRCUIT BY HON. MITCH MCCONNELL, A U.S. SENATOR FROM 
                     THE STATE OF KENTUCKY

    Senator McConnell. Well, Senator Bunning and I are here to 
introduce a nominee from our State to the Sixth Circuit Court 
of Appeals. I am happy to comment today on Professor John 
Rogers from the Commonwealth of Kentucky. President Bush has 
nominated Professor Rogers to the Sixth Circuit Court of 
Appeals.
    As many people are now aware, the Sixth Circuit is in dire 
straits, with 50 percent of its 16 seats vacant. So I 
appreciate Chairman Leahy holding this hearing for Professor 
Rogers to try to provide some relief to our circuit.
    John Rogers' career is marked by excellence and 
achievement. He was elected to Phi Beta Kappa during his junior 
year at Stanford. At the University of Michigan Law School, he 
was a member of the Order of the Coif. As a student, Professor 
Rogers chose to serve our country in the United States Army 
ROTC, going on to active duty in the field artillery. He 
excelled there, too, graduating first in his class of 120 in 
his field artillery studies.
    Professor Rogers has continued to serve his country in the 
United States Army Reserve, including serving as a consulting 
faculty member at the Command and General Staff College in Fort 
Leavenworth, Kansas. He is presently a Lieutenant Colonel 
(Retired) in the Army Reserves.
    With respect to his legal experience, John Rogers joined 
the Appellate Section of the Civil Division of the U.S. 
Department of Justice upon graduating from law school. He 
accepted a position on the faculty at the University of 
Kentucky College of Law in 1978, where he is the Thomas P. 
Lewis Professor of Law.
    In 1983, he returned to the Justice Department as a 
visiting professor. There, Professor Rogers was recognized for 
his outstanding work, earning a special commendation for 
outstanding service in the Civil Division in 1985.
    In 1987, Professor Rogers accepted a position as a 
Fulbright professor at the Foreign Affairs College in Beijing, 
the first of two Fulbright professorships in China. In China, 
Professor Rogers met his future wife, Ying Juan, who, 
unfortunately, could not be here today. As a spouse myself of a 
Chinese immigrant, I appreciate the challenges Ying Juan has 
experienced as an immigrant, and I am happy she was able to 
become a member of our naturalized citizen community.
    John Rogers' expertise is in international law, 
administrative law, and constitutional law. He has published 20 
Law Review articles and is currently working on his second 
book.
    He also testified before this committee in 2000 on the 
ability of former American World War II POWs to obtain 
compensation from foreign companies.
    In conclusion, Professor Rogers and his wife have two 
children, and I must confess I am a bit relieved to learn that 
the only club to which he belongs is the Henry Clay Stamp Club 
in Lexington.
    I welcome Professor Rogers to the committee and hope he can 
be expeditiously confirmed so that our circuit, the Sixth 
Circuit, can get some of the relief that it badly needs.
    Now I would like to turn it over to my colleague, Senator 
Bunning, for his observations about our nominee.

PRESENTATION OF JOHN M. ROGERS, NOMINEE TO BE CIRCUIT JUDGE FOR 
THE SIXTH CIRCUIT BY HON. JIM BUNNING, A U.S. SENATOR FROM THE 
                       STATE OF KENTUCKY

    Senator Bunning. Thank you, Senator McConnell.
    Mr. Chairman, today I have the honor of helping to 
introduce Professor John Rogers to the committee. By sending 
his nomination to the Senate, the President has nominated a 
first-class candidate to fill one of the vacancies on our Sixth 
Circuit. I hope the Senate is able to confirm him quickly.
    A quick look at his resume shows his strong qualifications: 
Phi Beta Kappa graduate from Stanford and Michigan Law School, 
member of the Michigan Law Review, and distinguished professor 
at the University of Kentucky Law School for almost a quarter 
of a century.
    He has worked two stints in the Civil Division at the 
Justice Department, working on appellate issues and drafting 
government briefs for the Supreme Court. Twice he has taught 
abroad, as you said, in China, as a Fulbright lecturer. And for 
28 years, Professor Rogers served his country in the U.S. Army 
Reserves and the Kentucky Army National Guard.
    Although he is not from Kentucky originally, early in his 
life Professor Rogers also made a smart decision by moving from 
New York to the Commonwealth. Clearly, he possesses the wisdom 
to sit on the Federal bench. His intellectual capabilities and 
curiosity will serve him well as an appellate judge.
    Professor Rogers has published, taught, and practiced on a 
broad range of legal topics: international law, immigration 
law, administrative law, constitutional law, and theories of 
jurisprudence, just to name some of his interests. He is a top-
flight scholar who can definitely handle the academic rigors of 
the appellate court.
    As the committee knows, we are facing a judicial crisis in 
the Sixth Circuit. Half the bench is empty. We desperately need 
to fill those slots.
    I appreciate the chairman--and I mean all the chairmen who 
sit here, including our real chairman. I appreciate the 
chairman scheduling this hearing, and I hope we can continue to 
make swift progress towards confirmation.
    I would also like to thank our chairman for helping us to 
confirm nominees to fill the three openings at the district 
level in Kentucky. It is already making a very big difference 
for us back home.
    Mr. Chairman, I will close by admitting up front that 
Professor Rogers was one of several candidates that Senator 
McConnell and I suggested to the President for the Sixth 
Circuit. When we were looking for candidates, we wanted to find 
the smartest legal eagles in Kentucky. I think you will soon 
discover that Professor John Rogers definitely fills that bill. 
He is a first-rate scholar who will make an excellent Federal 
appellate judge.
    Thank you, Mr. Chairman, and thanks to the committee.
    Senator McConnell. Thank you, Senator Bunning.
    Senator Santorum? Well, Senator Specter, and then Senator 
Santorum, I guess.
    Senator Specter. Go ahead, Rick.

PRESENTATION OF DAVID S. CERCONE, NOMINEE TO BE DISTRICT JUDGE 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. RICK SANTORUM, 
         A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Santorum. Okay. I always defer to my senior 
colleague, but I want to thank Senator Specter for deferring to 
me.
    It is a real honor for me to have the opportunity to 
present to the committee Judge Dave Cercone. Judge Cercone is a 
common pleas court judge in my home county of Allegheny County, 
where Pittsburgh is. He has been a judge there since 1986, has 
served with great distinction on that court. He is a graduate 
of Westminster College in western Pennsylvania, in the little 
town of New Wilmington, and he is also a graduate of Duquesne 
University.
    He is a part-time faculty member at Robert Morris College 
and also at the University of Pittsburgh Graduate School of 
Public International Affairs. He served, prior to that and his 
appointment to the court, as assistant district attorney in 
Allegheny County, and as a sole practitioner prior to that.
    Judge Cercone is someone who I have known for a long, long 
time. I knew him when I was practicing law back in Pittsburgh. 
He is a man of tremendous respect in the community, as well as 
his wife, who is an active member of the legal community in 
western Pennsylvania. He is incredibly well respected on both 
sides of the aisle as someone who is a great humanitarian, very 
active in a lot of community organizations, including, in 
particular, the Boys and Girls Club of Western Pennsylvania. He 
is someone who--the only fault that I have been able to find in 
Judge Cercone over the many years I have known him is his close 
relationship with John Kasich, who he grew up with in McKees 
Rocks, Pennsylvania, former Congressman Kasich from Ohio. But 
beyond that small blemish in his record, he really is an 
outstanding man in the community. He has been an outstanding 
judge in Allegheny County, and I have no doubt that he will be 
an outstanding judge in the court of the Western District of 
Pennsylvania.
    I will add that he is a Democrat, and he is someone who was 
part of the arrangement that Senator Specter and I have worked 
in Pennsylvania to make sure that we have no long strings of 
just one party getting judges appointed to positions in 
Pennsylvania. We take groups of four judges, and we have three 
Republicans and one Democrat. We have four judges that have 
been nominated from the Western District, and Judge Cercone is 
the second nominee of that package to come forward. The first 
was Joy Conti, a Republican. There are still two awaiting, Art 
Schwab and Terry McVerry, which we hope the committee will act 
on promptly. But I am very, very excited to be here today to 
nominate someone who will prove to be, I think, one of our 
finest--Judge Cercone.
    Thank you, Mr. Chairman.

PRESENTATION OF DAVID S. CERCONE, NOMINEE TO BE DISTRICT JUDGE 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. ARLEN SPECTER, 
         A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

    Senator Specter. With Senator Santorum's introduction, 
there is nothing left for me to day, but that won't stop me 
from speaking at length, nonetheless.
    [Laughter.]
    Senator Specter. Judge Cercone brings really a unique 
record to this important position. Magna cum laude is a 
testimonial to his academic ability. He served as a magistrate 
court judge before coming to the Court of Common Pleas, which 
is the court of record in Pennsylvania. And when he served as 
district justice magistrate, he was appointed by the Supreme 
Court to serve as administrative judge for the Criminal 
Division, supervising 14 judges and over 200 court employees.
    Senator Santorum has accurately stated what we have 
accomplished in Pennsylvania, and I think it is very important 
to have some balance on nominees. I think about the time from 
President Nixon's administration through President George Bush 
the Elder, and in the 24-year period, there was only 4 years 
when President Carter had the opportunity to nominate able 
young lawyers--or able lawyers, most of them young, who were 
Democrats. And that kind of balance is important, and we have 
worked out an arrangement which has been modeled after what 
Senator Javits and Senator Moynihan had done in the 1970s, and 
I think it is exactly the way things ought to be.
    I must tell you it requires a lot of explanation, Judge 
Cercone, when Republicans want to know why a Democrat is 
appointed to the Federal bench. And Rick and I give them the 
long explanations, and nobody is satisfied except the Democrats 
who were appointed. But it works reciprocally, and that is the 
way it should be.
    Just one note on the personal side. Judge Cercone's uncle 
was the president judge of the Pennsylvania Superior Court. 
Judge Cercone was an assistant D.A. And I was the D.A. once, 
but the best job I have had in public life was assistant D.A. 
And arguing before the Pennsylvania Superior Court was really 
an experience. As chief of the Appeals Division, we had about 
90 cases before the superior court, and all we could do was 
change the cover on the brief. They were all habeas corpus 
cases. But I don't think any of the judges noticed that.
    But Judge Cercone comes from a distinguished jurist family, 
and I know he will do an outstanding job.
    I am going to have to excuse myself, as I think the others 
members will. We have Governor Ridge coming in to talk about 
homeland security.
    Thank you very much, Mr. Chairman de facto.
    Senator McConnell. Thank you, Senator Specter.
    Under the arrangement that we worked out with the majority, 
we are going to have a brief--what I hope will be a brief 
recess here before taking the second panel, which will be 
Professor John Rogers.
    [Recess 2:25 p.m. to 2:30 p.m.]
    Senator McConnell. We are going to reconvene the session 
here. Congressman Bartlett has arrived and would like to make 
some observations about one of the judges.
    Congressman feel free to have a seat and tell us about your 
nominee.

  PRESENTATION OF LAWRENCE GREENFELD, NOMINEE TO BE DIRECTOR, 
 BUREAU OF JUSTICE STATISTICS, DEPARTMENT OF JUSTICE, BY HON. 
ROSCOE BARTLETT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 
                            MARYLAND

    Mr. Bartlett. Thank you very much. I just returned from our 
last vote of the day.
    It is a pleasure for me to come over to the other body to 
introduce and commend to you my constituent, Larry Greenfeld, 
as the Director of the Bureau of Justice Statistics for the 
United States Department of Justice. Larry and his wife, 
Barbara, have been my constituents as residents of Howard 
County in Maryland since 1990, where they have both been active 
and respected members of the community. Barbara has been an 
educator and administrator at Howard Community College for the 
past 20 years and previously taught for the Howard County 
Public School System. Their son, David, graduated from Atholton 
High School in Howard County, received his B.A. from the 
University of Maryland-College Park.
    Mr. Greenfeld has compiled an exemplary and distinguished 
record for more than 20 years at the Bureau of Justice 
Statistics, including two periods of service as Acting Director 
and Principal Deputy Director, Senior Executive Service, during 
a 26-year career at the Department of Justice. His 
contributions and expertise in the field of justice statistics 
have been established through hundreds of publications and 
presentations and have been widely recognized and honored by 
his peers.
    In January 1993, he was the recipient of the Peter P. 
Lejins Award for Research from the American Correctional 
Association, the highest award given for research in the field 
of corrections, and was selected as the ``Best of the Best'' in 
the field of corrections by Corrections Today Magazine. He has 
served on numerous national panels and commissions, including 
providing assistance to the Surgeon General's National Advisory 
Commission on Drunk Driving. In 1996, he received the Alumnus 
of the Year Award from the Department of Criminology and 
Criminal Justice at the University of Maryland.
    Once again, I am pleased and honored to introduce Larry 
Greenfeld. Thank you very much.
    Senator McConnell. Thank you very much, Congressman. We 
appreciate your coming by, and we are hope--I am hoping to be 
graced with the presence of Senator Feingold here at some 
point, so we will have what I hope will be another brief 
recess.
    [Recess 2:32 p.m. to 2:44 p.m.]
    Senator Feingold. [Presiding.] I will call the committee 
out of recess and back into order. Let me thank Senator 
McConnell for chairing the hearing and moving things along in 
my absence. I also want to thank Senator Feinstein for helping. 
I was at an executive session of the Foreign Relations 
Committee that just concluded.
    As I understand it, we have completed the first panel. The 
Members of Congress have had an opportunity to testify on 
behalf of the different nominees, so now we will move on to 
panel two.
    Senator Feingold. I would now ask Professor Rogers, the 
witness for the second panel, to come forward.
    Professor Rogers is President Bush's nominee to the United 
States Court of Appeals for the Sixth Circuit. Professor Rogers 
graduated from the University of Michigan Law School. After 
graduation, he spent 4 years working in the Appellate Section 
of the Civil Division of the Justice Department, a section to 
which he later returned in 1983 for 2 more years.
    He has been a law professor at the University of Kentucky 
College of Law since 1978. He also has had an extensive 
military career, first in the U.S. Army and later in the Army 
Reserve and Kentucky Army National Guard.
    We welcome you, Professor, and congratulations on your 
nomination. Will you please stand and raise your right hand to 
be sworn? Do you swear or affirm that the testimony you are 
about to give before the committee will be the truth, the whole 
truth, and nothing but the truth?
    Mr. Rogers. I do.
    Senator Feingold. Thank you, Professor Rogers. If you would 
like to make your opening statement and introduce anybody that 
you would like, you may do so now.

STATEMENT OF JOHN M. ROGERS, OF KENTUCKY, NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE SIXTH CIRCUIT

    Mr. Rogers. Thank you very much, Mr. Chairman. It's a great 
honor to be here, and I am very excited. I regret that my wife 
and children are not here. They would have loved to have been 
here.
    I want to thank you and Senator Leahy for scheduling this 
hearing and thank you for chairing it, and I am eager to take 
your questions.
    Senator Feingold. Very good. We will proceed with 7-minute 
rounds of questions. Let me begin.
    As you know, many individuals nominated to the Federal 
bench over the years have faced questions about their views on 
certain controversial topics, particularly if they have written 
or spoken about these topics. Almost invariably, in an effort 
to allay concerns that Senators might have about their views, 
part of their answer is to say that they will respect the 
rulings of the Supreme Court and apply them as a matter of 
stare decisis, even if they don't agree with them. We have an 
unusual situation here, because you wrote a very interesting 
article in 1995 that I would like to ask you a little bit 
about. The article is not really about a substantive area of 
law; it is, rather, about the principle of stare decisis.
    In your article entitled ``Lower Court Application of the 
`Overruling Law' of Higher Courts,'' you assert that a lower 
court, when faced with case law it thinks a higher court would 
overturn were it to consider the case, should then take 
responsibility upon itself and go ahead and reverse the 
precedent of the higher court on its own. As we read it, the 
idea is that the Supreme Court, for instance, has rules it 
follows about when and whether to overturn precedent, what you 
call ``overruling law.'' Your article suggests that lower 
courts should follow this body of law in the same way they 
follow other laws of the higher court and, therefore, lower 
court judges should reverse higher court precedent on their own 
whenever they think that the higher court would do so.
    Professor Rogers, have I at least reasonably correctly 
described your views in this article? Do you still subscribe to 
them?
    Mr. Rogers. I understand how that article might be 
interpreted that way. That article, I would stress, was in the 
Legal Theory journal. It was very abstract, and I used some 
language that I think could be misconstrued.
    I want to assure you and all the members of this committee 
that I strongly believe that it is the duty, actually the legal 
duty of a court of appeals judge to follow the holdings and 
decisions of the Supreme Court of the United States.
    Senator Feingold. Let me just pursue it a little bit, then.
    Mr. Rogers. Certainly.
    Senator Feingold. I appreciate that answer. What factors 
would you use, if confirmed to the Sixth Circuit, to determine 
whether the Supreme Court will overturn precedent in a 
particular case? And what----
    Mr. Rogers. I think----
    Senator Feingold. Let me just finish.
    Mr. Rogers. I'm sorry.
    Senator Feingold. What weight, for example, will you give 
to the political views of individual Justices as compared to 
the views of Justices who made the decision that would 
otherwise bind you?
    Mr. Rogers. That's an eminently fair question, Mr. 
Chairman, and I appreciate having the chance to respond to it. 
I think--that was a theoretical article dealing with something 
that would only happen very rarely.
    I would like if I could give a kind of concrete example. It 
is a very abstract article. A concrete example would be Brown 
v. Board of Education, which rejected the separate but equal 
doctrine in the area of public education. A year later, there 
was a case that involved separate but equal in the area of 
public transportation.
    The Court of Appeals for the Fourth Circuit in that case I 
guess conceivably could have said, well, all they have is a 
holding with respect to education and they don't have a holding 
with respect to public transportation; and there is an old 
Plessy v. Ferguson separate but equal decision with respect to 
public transportation, so, therefore, we are just going to say 
that there is separate but equal in that area. I think that 
would be wrong. That is not what the Court of Appeals for the 
Fourth Circuit did in that case because it was clear, very 
clear, that separate but equal was rejected across the board in 
theory, and no one could--it fatally undermined, if you will, 
Plessy v. Ferguson, although it was arguably distinguishable 
from Plessy v. Ferguson.
    In that type of situation, where it is clear that the 
Supreme Court would not adhere to an old precedent that it--not 
the lower court, but that it--has undermined or departed from, 
then in that case it makes sense for the lower court to follow 
what it perceives the Supreme Court to have done.
    I think it would be a very unusual type of situation, and, 
again, I would reassert--and it is also present in that 
article, actually--that there is a strong legal obligation--and 
that was the purport of some of my arguments in that article--
there is a strong legal obligation on the part of lower courts 
to follow the most applicable precedents of the Supreme Court 
of the United States.
    Senator Feingold. I appreciate that answer. You certainly 
seem to suggest a narrower basis for rejecting precedent than 
your article suggests.
    Mr. Rogers. That is absolutely fair enough, sir.
    Senator Feingold. It is somewhat reassuring that you use 
that example, and I think you have attempted to assure the 
committee that you would follow the precedents and uphold the 
Constitution.
    Let me ask you about another aspect of that article. You 
assert the following in the article: Despite what they may say, 
appellate and Supreme Court judges are at least to some extent, 
and perhaps entirely, voting policy preferences in a way that 
is wholly unpredictable unless the policy views of individual 
judges are taken into account.
    You go on to say: Perhaps, don't be shocked, judges vote on 
First Amendment issues, federalism issues, or search and 
seizure issues at least in part according to their political 
preferences. In fairness, I studied the writings of others in 
college that suggested very much the same with regard to 
judges. So, it is not something I have never heard before.
    But, I think you would agree that one of the most 
fundamental underpinnings of our democracy and one of the many 
institutions that proves the genius of our Founders is our 
independent judiciary. The system of lifetime appointments 
allows judges to be free to base their decisions on nothing but 
the law and their own judgment, free of the influence that 
political interference can bring. I note that you have been a 
member of the Republican National Committee since 1970.
    Given your academic writings, what assurances can you give 
the committee that you will fairly apply the law based on the 
merits of a particular case, regardless of your policy 
preferences and political views?
    Mr. Rogers. Absolutely. I flatly support the idea that 
judges should decide based on the law and not on the basis of 
their political views. And I think in context, that little 
quote from my article is, at least intended to be, a 
characterization of an argument that I don't think is 
appropriate. Maybe it happens. Maybe as a political science 
matter it happens sometimes. And that's what I was trying to 
respond to people who I thought might disagree with the 
esoteric arguments that I was making in that theoretical 
article.
    But I strongly support and have always strongly supported 
the idea that the very idea of what a judge is doing, an 
Article III judge, or really any judge is doing, is deciding 
what the legislature and the Framers have decided and applying 
that, rather than using their own policy preferences. I think 
that's what judicial discipline is all about, is not trying to 
come to a result that the judge thinks is the better result, 
but trying to come to the result that the legislature or the 
Framers thinks is the proper result.
    Senator Feingold. Thank you, Professor. That completes my 
first round.
    Senator McConnell?
    Senator McConnell. Thank you, Mr. Chairman.
    Just following up on that, your article, ``Lower Court 
Application of the `Overruling Law' of Higher Courts,'' 
obviously could be misinterpreted by some people. Some would 
believe it stands for the proposition that if a lower court is 
faced with case law, it thinks a higher court would overturn, 
then the lower court should take the responsibility upon itself 
and go ahead and reverse the precedent of the higher court on 
its own.
    But we all know a lower court can't, of course, reverse the 
precedent of a higher court. Furthermore, we respect to the 
fidelity to precedent that a lower court must exhibit, I take 
your article to have the exact opposite point, that is, lower 
court adherence to binding precedent is so critically important 
to our judicial system that lower courts have a duty to strive 
to make sure that they correctly determine and follow governing 
precedent.
    That very strong obligation is not always easy to discharge 
when it appears that a higher court has changed its precedent, 
whether, for example, through multiple decisions that seem to 
render a longstanding interpretation a nullity--you cite an 
example of that--or through decisions that seem to show that a 
prior precedent has been sub silentio overruled.
    So I would like to clear up some of the confusion. Is it 
your position that judges must always follow binding precedent?
    Mr. Rogers. Yes, absolutely.
    Senator McConnell. A lower court can't, of course, reverse 
the precedent of a higher court, can it?
    Mr. Rogers. No, it cannot.
    Senator McConnell. Is it your position that judges should 
follow precedent even when the precedent seems to the judge to 
be unwise or at odds with his personal beliefs or political 
philosophy?
    Mr. Rogers. Emphatically, yes.
    Senator McConnell. In fact, did you not write in that same 
article that our legal system ``would not work well if lower 
courts persisted in their own sincere legal analysis, 
regardless of the decisions of higher courts''?
    Mr. Rogers. Yes, Senator, I believe that's in there.
    Senator McConnell. And, in fact, did you not also write in 
that article that, ``It follows judges may, indeed should 
follow the law as appellate courts determine it in order to 
apply, per their oaths, the law of the system that set up their 
courts''?
    Mr. Rogers. Exactly.
    Senator McConnell. Was one of the points in your article 
that higher courts sometimes change precedents without always 
expressly saying so?
    Mr. Rogers. Yes, sir.
    Senator McConnell. And that it is the job of the lower 
court to try to determine if there has been a change in 
precedent in order for the court to be faithful to that new 
precedent?
    Mr. Rogers. That's the idea, yes, sir.
    Senator McConnell. And if there has been a change in 
precedent, then courts should try to determine the scope of 
that change?
    Mr. Rogers. Yes, exactly. Thank you.
    Senator McConnell. Thank you, Professor Rogers.
    Thank you, Mr. Chairman.
    Senator Feingold. Thank you, Senator McConnell.
    Professor, one of the traits I am looking for in judges is 
open-mindedness and fair-mindedness I like judges to be willing 
to listen to arguments and, where appropriate, change their 
minds about an issue if the law and the facts warrant it.
    Can you give me an example from your legal career where you 
have changed or reversed a position based on the arguments that 
you have heard in court or the information that a client or 
another lawyer has presented to you?
    Mr. Rogers. Mr. Chairman, I'm primarily a law professor, 
and I think maybe the best example of my open-mindedness is how 
I try to conduct my classes. I have students who sometimes will 
take me on, and those tend to be the best classes that I teach. 
And I can think of examples where I asserted something, a 
reading of a particular case, and a student questioned it, and 
we went back and forth for several times until finally I had to 
agree that what the student said was the best possible--was the 
better reading of the case. I can think of several examples 
where that has happened.
    So, yes--would you like specifics of--I mean, I can think 
of a case where I read, for instance, the holding of the Garcia 
case, Garcia v. SAMTA, as never allowing a court to say that 
the Federal Government could not regulate the States, that the 
courts were completely out of it, that it was purely a 
political check. And I had a student--I remember her name is 
Mary Ann Both. She's a lawyer now, a public interest lawyer in 
Massachusetts, and she said, no, there's room in that--she 
wasn't advocating for it, but she said there's room in the 
language of that decision to--at a certain point for the 
Supreme Court to come back. And I said, well, you know, I just 
don't read it that way. And then we went back and forth, and in 
a logical, careful way, she demonstrated to me that, yes, there 
was room in the opinion for the Supreme Court to come back, 
and, indeed subsequently, as you know, the Supreme Court has--
perhaps not in the way she anticipated, but has put some limits 
on it.
    Now, I want to say I remember that clearly because that was 
one of the best classes I've taught.
    Senator Feingold. Well, I am pleased to hear that example, 
because all we can do here is examine people on their record. 
It is great to be able to get a little sense of how people 
think, because you are going to be making such important 
decisions for us.
    Some of the most beloved judges in our history are judges 
who have stood up to popular sentiment to protect the rights of 
minorities or people whose views make them outcasts or even 
sometimes pariahs.
    Can you give me an instance in your professional career 
where you took an unpopular stand or represented an unpopular 
client and stood by it under pressure?
    Mr. Rogers. I'm thinking, Mr. Chairman. Most of my clients 
were Government agencies. But----
    Senator Feingold. Certainly the unpopular----
    Mr. Rogers. I was going to say, I've had some pretty 
unpopular clients. I had one case where--it was a Federal Tort 
Claims Act case that involved the CIA's opening of the mail in 
New York, which was pretty unpopular and illegal. But they did 
it, and they only opened the mail that came through at night. 
They didn't open the mail that came through during the day. But 
there was a suit against the United States for $1,000 per 
letter, and the Justice Department had to defend that suit and 
try to keep the treasury from being depleted by--you know, 
there were millions of these letters, so it was an important 
financial case, and I had to litigate that in the Second 
Circuit. And it was subjected to criticism in the newspapers. I 
was kind of chewed out on the way out of the courthouse by 
opposing counsel for even representing the United States in 
that case. So I suppose that's an example of what you're 
talking about.
    Senator Feingold. Fair enough. During your second stint at 
the Department of Justice from 1983 to 1985, you represented 
different Federal agencies in a number of cases involving 
foreign affairs and international law.
    Mr. Rogers. Yes, sir.
    Senator Feingold. In particular, you seem to have 
specialized in handling the Government's defense of appeals in 
cases involving the propriety of U.S. actions in Latin American 
countries, including Nigeria, Honduras, and Grenada.
    For example, you defended U.S. Government officials and 
others in a case brought by plaintiffs challenging the covert 
support of rebel activity in Nicaragua.
    What are your views regarding the appropriate separation of 
powers between the courts, the executive branch, and the 
legislative branch with respect to such foreign policy matters 
and international law?
    Mr. Rogers. Well, Mr. Chairman, I wrote a book on that, and 
I'm not sure how to encapsulate that whole book. I guess, 
generally speaking, international law is a very important part 
of foreign policy. But international law is something that, in 
the final analysis, has to be determined by the political 
branches and not by the courts. And I think that's a general 
thread that underlay some of the more technical doctrines that 
we used when we litigated those cases.
    Senator Feingold. Well, if courts should not resolve 
disputes between the political branches under the political 
question doctrine, how can disputes such as the Reagan 
administration's support of the contras against the will of 
Congress or President Bush's withdrawal from the ABM Treaty 
without congressional approval be resolved?
    Mr. Rogers. Well, under the political question doctrine, by 
definition, they have to be resolved through the political 
process. That's the idea.
    Senator Feingold. In writings, you've made the case that 
the United States courts--and I think you just referred to 
this--should interpret statutes in a way that is consistent 
with public international law. I assume you would claim that 
this approach must apply as well to international human rights 
obligations, including customary human rights norms?
    Mr. Rogers. ``Must be'' may be a little bit too strong. The 
Supreme Court has said that statutes of the United States 
should be interpreted in accordance with our international 
obligations, if possible; not that that's a requirement, but 
that that's a canon of construction.
    If a court could ascertain that there was an international 
obligation with respect to a particular human rights issue, 
then that might inform the interpretation of a statute. But 
it's up to Congress to pass the statute, and if it doesn't want 
that, it has to be clear. This is what the Supreme Court says 
courts should do. In accordance with my answers to your 
previous question, that's what's appropriate.
    Senator Feingold. Let me ask you another, more specific, 
question in that area, consider the complicated case in which 
the United States has taken a non-self-executing reservation to 
a human rights treaty, as we have done with most of the core 
human rights treaties that we have ratified. Do you agree that 
such a human rights treaty, while not providing a direct cause 
of action in a Federal court, should nonetheless guide the 
interpretation of U.S. law or policy?
    Mr. Rogers. When you say ``guide,'' I'd have to say--I'm 
reflecting on the writings in my book. They might affect the 
interpretation of a statute that's otherwise ambiguous, yes. 
That would include that.
    Senator Feingold. All right. Senator McConnell?
    Senator McConnell. I think I will pass on this round, Mr. 
Chairman.
    Senator Feingold. I am completed with my questions. As I 
understand it, we are about to have a vote. So let me thank you 
very much, Professor Rogers.
    Mr. Rogers. Thank you very much.
    Senator Feingold. I think--are we pretty certain the vote 
is going to start?
    Well, I think we will move on to the next panel. Thank you 
very much, Professor.
    Senator McConnell. Thank you.
    [The biographical information of Mr. Rogers follows.]

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    Senator Feingold. I would now like to invite our third 
panel to come forward, and I apologize in advance that we may 
have to recess briefly during a vote.
    The panel that is coming forward: Judge David Stewart 
Cercone, Judge Kenneth Anthony Marra, Judge Morrison Cohen 
England, Jr., and Lawrence Greenfeld.
    Welcome, and congratulations to each of you on your 
nomination. Will you please stand and raise your right hands to 
be sworn? Do you swear or affirm that the testimony you are 
about to give before the committee will be the truth, the whole 
truth, and nothing but the truth?
    Judge Cercone. I do.
    Judge England. I do.
    Judge Marra. I do.
    Mr. Greenfeld. I do.
    Senator Feingold. I thank all of you. We will start with 
Judge Cercone. Judge David Stewart Cercone, who has been 
nominated to the U.S. District Court for the Western District 
of Pennsylvania, is a graduate of Westminster College and 
Duquesne University School of Law. After law school, he served 
as Allegheny County assistant district attorney and then as a 
State magistrate judge. He was first elected to be a judge in 
the Allegheny County Court of Common Pleas, the State trial 
court bench, in 1986 and has served on that court ever since. 
He is a native of Pittsburgh, Pennsylvania.
    We welcome you, Judge, and you may proceed with your 
opening remarks and any introductions you would like to make.

 STATEMENT OF DAVID S. CERCONE, OF PENNSYLVANIA, NOMINEE TO BE 
    DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA

    Judge Cercone. Thank you. Thank you, Mr. Chairman, and I do 
appreciate this opportunity to appear before the Judiciary 
Committee. Senator McConnell, thank you very much, and my 
thanks to Senator Leahy for scheduling this committee meeting.
    With me this afternoon is my wife, Mary Ann Cercone; my 
son, Spencer; my son, Stephen. My youngest son, Christopher, 
was here. He's 5 years old and at the risk of being the first 
5-year-old ever held in contempt of Congress, I decided to have 
him go down to the coffee shop.
    Senator Feingold. I hope he is having a good time.
    [Laughter.]
    Senator Feingold. Anything else?
    Judge Cercone. That's all. Thank you.
    Senator Feingold. Thank you very much, sir.
    Judge Kenneth Anthony Marra, who has been nominated to 
serve on the U.S. District Court for the Southern District of 
Florida, graduated from Stetson University College of Law. Upon 
graduating from law school, he became a trial attorney with the 
Justice Department. After leaving the Department of Justice, 
Judge Marra practiced law in Washington, D.C., and West Palm 
Beach, Florida. In 1996, Judge Marra was appointed to Florida's 
Fifteenth Circuit Court bench by the late Florida Governor 
Lawton Chiles.
    We welcome you, Judge, and you may proceed with any 
introductions or any opening statement you would like to make.

   STATEMENT OF KENNETH A. MARRA, OF FLORIDA, NOMINEE TO BE 
      DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA

    Judge Marra. Thank you, Mr. Chairman. Also, I would like to 
thank you, Senator Leahy, and Senator McConnell for having this 
hearing and scheduling me before you. It's a pleasure for me to 
be here.
    I would like to introduce the members of my family. I have 
with me my wife, Louise; my children Andrew, Joanna, Peter, 
Stephen, David, Mark, John Michael, and Annalise. My mother, 
Phyllis Marra, is here; my sister, Barbara Matarese; my 
brother, Alexander Marra; my niece, Julie Matarese; and my 
daughter's fiance, Christopher Iaciofoli.
    Thank you. I have no opening remarks, and I'm prepared to 
answer any questions from the Chair and the members of the 
committee.
    Senator Feingold. I thank you very much, Judge, and I would 
at this point ask unanimous consent that statements in support 
of Judge Marra from Senator Bob Graham and Senator Bill Nelson 
be placed in the record, without objection.
    Our next nominee is Judge Morrison Cohen England, Jr., who 
has been nominated to serve as U.S. District Judge for the 
Eastern District of California. He is a graduate of the 
University of the Pacific's McGeorge School of Law. After 
graduating from law school, he practiced law in Sacramento, 
California. In 1996, Judge England was appointed by Governor 
Pete Wilson to be a Sacramento Municipal Court Judge and then 
elevated to Superior Court a year later. In addition to holding 
down these demanding day jobs since 1988, Judge England has 
been a member of the United States Army Reserve, serving in the 
Judge Advocate General Corps.
    Judge England, welcome. You may make any opening statement 
or introduce anyone.

   STATEMENT OF MORRISON COHEN ENGLAND, JR., OF CALIFORNIA, 
   NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
                           CALIFORNIA

    Judge England. Thank you, Senator Feingold. I want to first 
of all thank Senator Leahy for scheduling this hearing and also 
thank you and Senator McConnell for being present at this 
hearing.
    I would also like to thank Senator Feinstein for her 
introduction today and also for the kind words I have received 
moments ago from Senator Boxer.
    I would like to introduce my wife, Nancy England, who has 
also joined me here today, and I'd also like to introduce a 
friend, Judge Eric Taylor, from the Los Angeles County Superior 
Court, who was also able to attend today at the last minute.
    I would like to thank you once again for the opportunity to 
be here, and I do look forward to answering any and all 
questions that the committee may present to me today.
    Thank you very much.
    Senator Feingold. Thank you very much, and welcome, of 
course, to all the guests that are with the nominees today.
    Next we will turn to Mr. Lawrence Greenfeld. Mr. Greenfeld 
has been nominated to serve in the Department of Justice as the 
Director of the Bureau of Justice Statistics, the Nation's 
primary source for criminal justice statistics.
    Mr. Greenfeld is a native Washingtonian who has had a long 
career at the Department of Justice beginning in 1976, when he 
worked as a social scientist with the National Institute of 
Justice. He worked for a decade as the chief of the Corrections 
Statistics Program and over time has risen to hold various 
deputy director positions within the Bureau of Justice 
Statistics. He has twice been Acting Director of the Bureau of 
Justice Statistics, once during the first 21 months of the 
Clinton administration and again during the previous 17 months 
of the current Bush administration.
    We welcome you, Mr. Greenfeld. Congratulations on your long 
career of public service and on your nomination. You may make a 
statement or introduce whomever you wish.

  STATEMENT OF LAWRENCE GREENFELD, OF MARYLAND, NOMINEE TO BE 
 DIRECTOR, BUREAU OF JUSTICE STATISTICS, DEPARTMENT OF JUSTICE

    Mr. Greenfeld. Thank you, Mr. Chairman. It is a pleasure 
and an honor to be here today and to have been nominated by the 
President to be Director of the Bureau of Justice Statistics 
and have the confidence of the Attorney General and the 
Assistant Attorney General in charge of the Office of Justice 
Programs.
    I also want to thank Congressman Bartlett who offered some 
very kind words about me a few minutes ago.
    I do want to introduce my wife, Barbara, who is here, and 
my wife's aunt, Sara Rothman, who is here. And I'm delighted, 
again, to have this opportunity. BJS is a superb agency with 
wonderful people that we're blessed with the best 
statisticians, I think, in public service. And I'm ready, 
willing, and able to answer all of your questions.
    Senator Feingold. Very good. I thank you. Since the vote 
hasn't started, we will just keep going forward. We will start 
with 7-minute rounds of questions. I will start with Judge 
Cercone.
    I noticed Judge, that you imposed the death penalty in 
criminal cases four times in published cases. Two of those 
death sentences were reversed on appeal. As you know, Governor 
Ryan in Illinois has instituted a moratorium on executions as a 
result of certain inadequacies in the State's death penalty 
system as shown by the fact that 13 individuals sentenced to 
death in that State were exonerated.
    There have been four exonerations in Pennsylvania, 
including a recent exoneration which actually was the 101st 
exoneration in the country since 1977.
    First, I would like to ask you: Do you know exactly how 
many times you have imposed the death penalty?
    Judge Cercone. Senator, when you ask that question, I'm 
assuming that you mean in light of a jury's determination that 
the death penalty should be imposed and I as a judge formally 
impose the death penalty as required by law in light of a 
jury's finding?
    Senator Feingold. That would be a fair interpretation.
    Judge Cercone. In total, I believe that I imposed the death 
penalty four times.
    Senator Feingold. Okay. Do you have any concerns regarding 
the administration of the death penalty in Pennsylvania? For 
example, do you believe that any of the recent recommendations 
made in Illinois to make the sentencing of an innocent person 
to death less likely are applicable either to Pennsylvania's 
system or to the Federal system?
    Judge Cercone. Of course, I have concerns about it. I 
participated in the Pennsylvania Economy League's study of the 
Allegheny County Public Defender's Office, and one of the 
inadequacies that I observed and that I passed along to this 
independent organization studying the county's public defender 
office is that lawyers were overworked when it came to serious 
cases like the death penalty case; there were insufficient 
funds for such things as expert witnesses or investigation. And 
I passed that along to the independent organization that was 
reviewing this.
    Senator Feingold. Thank you.
    Let me turn to Judge Marra. Over the last 25 years--oh, 
there is the vote. If there is no objection, I think I will 
simply recess at this point and return right away to continue 
the----
    Senator McConnell. May I suggest that you leave first, I 
ask some questions? Would that--it might save some----
    Senator Feingold. I am concerned about that because I may, 
Senator McConnell----
    Senator McConnell. Why don't we go vote?
    Senator Feingold. You are a very smart Senator, and I want 
to make sure----
    Senator McConnell. Why don't we just go vote?
    Senator Feingold. Yes, I appreciate your willingness to 
help, but I think we are just going to recess.
    [Recess 3:13 p.m. to 3:34 p.m.]
    Senator Feingold. I will call the committee back to order, 
and I will resume my question period, first round.
    Judge Marra, over the last 25 years, you have served--you 
have had a interesting and varied legal career as a trial 
attorney with the Department of Justice and in private practice 
and as a judge in the Palm Beach County Circuit Court. The vast 
majority of your experience, however, has been in the area of 
civil litigation. As a judge, you have only handled criminal 
matters for approximately the last 2 years.
    As you know, of course, a significant portion of the 
Federal judicial docket in South Florida deals with complex 
criminal and immigration matters. Please tell the committee how 
your legal experience has prepared you to adjudicate complex 
criminal cases in Federal court and, if you are confirmed, how 
you will work to get up to speed on Federal criminal procedure 
and substantive law for the criminal matters that will be 
before you.
    Judge Marra. Yes, Mr. Chairman. As you just mentioned, I 
have been exclusively dealing with criminal cases for the last 
2 and a half years, and I think that experience has prepared me 
well for handling whatever matters come before me on the 
Federal district court.
    I deal with constitutional issues on a regular basis, 
search and seizure areas, right to counsel areas, Fifth 
Amendment matters, and I believe that experience has prepared 
me well to undertake the responsibilities in the Federal 
district court.
    Senator Feingold. Thank you.
    In McCaw Cellular v. Kwiatek, the jury found the defendant 
corporation liable for disability discrimination based on the 
plaintiff's HIV-positive status and awarded him $1 million in 
punitive damages, but you reduced the punitive damage award by 
90 percent to $100,000. I have a couple of questions in that 
connection.
    What was the basis for this reduction? Do you believe it is 
proper for a judge to intervene in such cases and disturb jury 
verdicts? Do you believe that jury-awarded damages should 
always be subject to immediate judicial review and can you give 
me a sense of the factors that a district judge should use in 
making these kinds of determinations?
    Judge Marra. Well, in that particular case, Mr. Chairman, 
there was a statutory cap on punitive damage awards under the 
Florida Civil Rights Act at $100,000, so the basis for my 
reduction in that case was the statutory cap. But obviously all 
jury determinations on damages are subject to review on post-
trial motions, and I would obviously consider all of the 
relevant factors and applicable law in making those 
determinations.
    Senator Feingold. Okay. Do you believe there is a 
constitutional right to privacy? If so, please describe what 
you believe to be the key elements of that right, and if not, 
please explain that.
    Judge Marra. Well, Mr. Chairman, the United States Supreme 
Court has articulated on numerous occasions that there is a 
right to privacy which is protected from infringement by both 
the State and the Federal Governments. And I certainly as a 
sitting judge now in the State courts and as a United States 
district court judge would uphold those precedents and apply 
them appropriately and accurately.
    Senator Feingold. What do you believe to be the key 
elements of that right?
    Judge Marra. The courts have recognized certain decisions 
which they believe are so personal and private and are related 
to aspect of liberty that the Government should not be allowed 
to infringe except in very limited circumstances.
    Senator Feingold. Thank you, Judge.
    Now I will go to Judge England. Judge England, one case you 
cited as among your most significant cases involved a First 
Amendment suit by several members of the California Bar 
Association who claimed that some of their mandatory dues were 
being misused to fund political activities. In your decision in 
this case you relied on what some would see as a more stringent 
standard than that set forth by the Supreme Court in Keller v. 
California State Bar. You found that several bar association 
activities such as programs intended to increase minority 
membership, the Conference of Delegates, a mentor program, 
pairing attorneys with parolees, and most lobbying on State 
issues were not related to the core purposes of the 
organization and, therefore, that members' First Amendment 
rights were violated by using mandatory dues to fund such 
programs.
    Please tell the committee why you employed a stricter 
standard in this case than that set forth by the Supreme Court, 
and please explain your understanding of the proper role of the 
Federal judiciary in protecting individual rights guaranteed by 
the Constitution or Federal statutes.
    Judge England. Thank you, Mr. Chairman.
    Mr. Chairman, with respect to that particular case, it was 
my interpretation of Keller v. State Bar of California, the 
United States Supreme Court case, that I utilized in making 
that determination. In that case, we were looking at a 
situation where the members of the California State Bar were 
required by law to be a member of the organization in order to 
practice law. As such, it was a mandatory organization.
    The United States Supreme Court in a number of cases, (not 
only the Keller case but also in labor relations cases) had 
indicated that when an individual is required as a matter of 
law to be part of an organization, the dues that are paid for 
that organization should be related to the operation of the 
organization.
    Now, I would state and I did state in the opinion that 
various activities that the California State Bar was engaged in 
were, in fact, very laudable activities. However, the fact that 
they were laudable activities and were for good purposes did 
not necessarily mean that everyone who was a member of that 
organization should be required to fund those activities. That 
was an issue involving the First Amendment right of free 
speech.
    I simply went through each of the activities that were 
listed and that were challenged by the plaintiffs in the case 
and applied what I felt was the Federal standard under the 
First Amendment and the Keller case. I then made my decisions 
as to each of the particular programs. Some I found did not 
qualify and, therefore, should not be chargeable, but there 
were a number of others which I did, in fact, find were 
chargeable.
    Senator Feingold. Could you say a bit about your 
understanding of the proper role of the Federal judiciary in 
protecting individual rights guaranteed by the Constitution and 
Federal statutes?
    Judge England. I think that it is clearly incumbent upon 
any Federal judge, at whatever level, to be very mindful of the 
United States Constitution, and in the case of a district court 
judge, to be very mindful and cognizant of the appropriate 
superior courts or appellate courts and their decisions.
    It is important that the district court judge understand 
those precedents and follow those precedents and the law as it 
is written and as it has been determined over the past and make 
those the appropriate standards for making the decisions.
    Senator Feingold. I will start another round. I don't see 
Senator McConnell.
    Again, to Judge England, do you believe there is a 
constitutional right to privacy?
    Judge England. The United States Supreme Court has made it 
clear in numerous opinions, Mr. Chairman, that the right of 
privacy is a fundamental right, and I do, in fact, believe that 
I will follow the Supreme Court's determination and decision 
making in that process.
    Senator Feingold. Okay. Thank you very much.
    Let me ask each of the district court nominees the two 
questions that I asked Professor Rogers. First, as I said 
before, one of the traits that I am looking for in judges, that 
we all look for, is open-mindedness and fair-mindedness. I 
would like the judges to be willing to listen to arguments and 
change their minds about an issue if the law and the facts 
warrant it. I will start with Judge Cercone. Judge Cercone, 
could you give me an example from your legal career where you 
have changed or reversed a position based on the arguments that 
you heard in court or the information that a client or another 
lawyer has presented to you?
    Judge Cercone. If I could say generally, first, I think the 
record of trials in my courtroom will show that I oftentimes--
sometimes even on my own motion--will reverse my own decisions. 
I once asked a question of a witness to which a lawyer 
objected, and I sustained the objection to my own question.
    [Laughter.]
    Judge Cercone. So, Senator, I understand that open-
mindedness is very important, and that is a trait that I hope I 
have a reputation for having.
    An example would be sometimes when I handle criminal cases 
in sentencing, when I hear the facts of the case and read the 
pre-sentence reports, sometimes I form a general view as to 
what an appropriate sentence should be. But after I conduct a 
sentencing hearing, I hear from witnesses, including defense 
witnesses and the defendant. And if I'm convinced that such 
factors such as true remorse and other indications of 
rehabilitation are present, I will change my mind as to what my 
initial thoughts were as being one example.
    Senator Feingold. Thank you.
    Judge Marra?
    Judge Marra. Thank you, Mr. Chairman. Just recently, a case 
I dealt with dealing with search and seizure issues, where I 
made an initial ruling and then upon further argument reversed 
the ruling. So I believe--and I can give you the specifics if 
you'd like, but I believe that I am very open-minded and I have 
a reputation of being open-minded and fair and would not take 
offense to motions for rehearing or reconsideration after I 
made a ruling, as I did in that particular case.
    Senator Feingold. Thank you, Judge.
    Judge England?
    Judge England. Yes, Mr. Chairman. I think it is very 
important as a general rule that a judge not be so welded to a 
particular position or theory that he or she will not be able 
to listen to other ideas as well. I'm not able to come up with 
any specific times that I have changed my mind as to a 
particular issue, but I can in general terms tell you that I 
know that there has been at least one time in a sentencing 
issue, that after going through the initial pre-trial review of 
the case, hearing the actual trial as it went on in my 
courtroom, and as Judge Cercone indicated, listening thereafter 
to the other issues that came in with the family of victims and 
other things, where my decision changed as to how I was going 
to render a sentence. And I did make a change at that 
particular time.
    There are more facts that I could give, but, unfortunately, 
the case is still pending at the appellate level, so I would--
I'm not able to give you more details at this time. But I think 
that's something that we all have to be aware of and not become 
so rigid in our mind-set that we become, as has been noted, a 
potted plant sitting on the bench.
    Senator Feingold. I have one more question for each of the 
judicial nominees and then some questions for Mr. Greenfeld, 
but at this point, I will turn to Senator McConnell, if he 
would like a round of questions.
    Senator McConnell. Yes, Mr. Chairman. There are questions I 
could ask, but as a supporter of the administration, I have the 
general view that you guys have probably been through a lot of 
gauntlets to get to this point. You have first managed to get 
past the Justice Department. Second, you have managed to get 
past the ABA. Third, you have managed to get past the Judiciary 
Committee staff to the point where you now have a hearing.
    So I am satisfied, not having heard anything to the 
contrary, that all of you are qualified for the positions to 
which you have been nominated. So let me just congratulate you 
and hope that you will do an outstanding job in the positions 
to which you have been nominated and to which I hope you will 
soon be confirmed.
    Thank you, Mr. Chairman.
    Senator Feingold. Thank you, Senator McConnell, and let me 
start another round and ask each of the three judicial nominees 
if you can tell me of an instance in your professional career 
where you took an unpopular stand or represented an unpopular 
client and stood by it under pressure. Judge Cercone?
    Judge Cercone. I can only think of one example, and I went 
on the bench when I was 33, so I didn't have much of a legal 
career. So it did occur when I was a judge. And there was an 
instance where there was a defendant who was charged with 
recklessly endangering people by virtue of his horrific 
driving. He had gone on to--driven the wrong way on a ramp to a 
major highway in Pittsburgh and had endangered the lives of a 
lot of people. When he was apprehended by the police, it was 
alleged that he was--that there was some police brutality 
involved.
    When the case came before me, the only issue was the 
question regarding his driving and what an appropriate sentence 
should be for that. There was some sentiment in the community 
that because, allegedly, he had been beaten up by the police 
that that should come into play in my sentencing him on his 
driving record and the facts of that case. And, besides, he had 
also a terrible driving record, I think, of about 11 
convictions within the past year or two.
    I determined that what happened between him and the police 
would be dealt with on another day in another courtroom on a 
different action, that it really wasn't for me to decide that 
issue. And as I said, there were--there was at least one 
editorial on the point which sort of painted the defendant in a 
light where he should have been given consideration for that, 
and I deemed it irrelevant to the proceedings before me.
    Senator Feingold. Thank you, Judge.
    Judge Marra?
    Judge Marra. Thank you, Mr. Chairman. I think the best 
example that I can give the committee is when I was in private 
practice here in Washington, D.C. Our firm represented an 
Indian tribe in the State of New York by the name of Cayuga 
Indian Nation of New York, and we brought a lawsuit on behalf 
of the Cayuga Indian Nation seeking to regain 100 square miles 
of Central New York State from approximately 5,000 landowners. 
And I can tell you that that was not a very popular lawsuit to 
be involved with, and we brought that suit and prosecuted it 
vigorously on behalf of our client.
    Senator Feingold. I am sure you have heard a lot about 
those kind of cases as well. Thank you, Judge.
    Judge?
    Judge England. Yes, Mr. Chairman, I think that the case I 
can bring up, the easiest, would be the case involving the 
State bar. As I'm sure that you can understand, there were a 
number of groups that were very adamant about whether or not 
the State bar should be involved in certain positions, if you 
will, and felt that there were some things that the State bar 
should not be involved in, whether it be minority issues, 
women's issues, parole issues and those types of things. I 
received quite a bit of comment, mostly written in the press, 
and various bar journals as to my decision making and how it 
may have affected the continued viability of those particular 
parts of the State bar. But I did still make those decisions 
notwithstanding the comments that were made.
    Senator Feingold. Thank you.
    Let me turn to Mr. Greenfeld now. According to a BJS 
report, in the year 2000, the most recent year with complete 
statistics, 14 States executed 85 prisoners, and at the end of 
that year, there were almost 3,600 people on death row. The 
year before that, in 1999, more people were executed in the 
United States than in any year since 1951. In the past decade, 
between 1990 and 2000, the number of people on death row 
increased by over 50 percent.
    Now, I mention these facts because over this same period of 
increased imposition of the death penalty, the accuracy of our 
criminal justice system has been called into question by the 
exoneration of over 100 individuals on death row. By 
exoneration, I mean that their convictions were reversed and 
they were acquitted after another trial or the charges were 
dropped because, for instance, DNA evidence supported their 
claim of innocence.
    Just yesterday I chaired a hearing to examine the findings 
of the Illinois Governor's Commission on Capital Punishment. I 
recognize that BJS does not take any position on the 
constitutionality of the death penalty in the studies it 
conducts, but does BJS have any plans to study the phenomenon 
of the exoneration of innocent people wrongly condemned to 
death? Why or why not?
    Mr. Greenfeld. Our current series on capital punishment, 
which really dates back to 1930, examines the populations under 
sentence of death from a point of being sentenced entering 
prison until they are either executed, released, or die there. 
So we do not have data that examines the front end, the 
decisions that may be made prior to that part of the sentence 
being imposed.
    There are probably a number of studies which could be done, 
and I believe NIJ is doing a study, I think at your request 
specifically, to look at that issue. So I think they are--that 
is being done at NIJ, and BJS has no plans at the moment, 
though there are things that probably could be investigated and 
developed into a national statistical series.
    Senator Feingold. I am pleased you refer to that. I think 
that study has to do with the issues of racial and geographic 
disparities. What I am getting at here is the innocence issue 
of 101 cases. So I hope you will consider that in your future 
work.
    One of the criticisms made of OJP and other Federal grant 
agencies in recent years is that there have been very tight or 
even symbiotic relationships developed in some pockets of some 
agencies between long-time career staff and long-time 
institutional grantees. In light of the need for arm's-length 
relationships and the oversight of Federal moneys, what steps 
will you take or have you taken as Acting Director of BJS to 
address this problem or this perception?
    Mr. Greenfeld. Well, the principal grant activity at BJS is 
the National Criminal History Records Improvement Program, 
which grew out of the Brady Act and the National Child 
Protection Act. This particular grant activity provides funds 
to States to build the infrastructure to support the national 
instant check system as well as other background check systems, 
and over the years BJS has folded in the development of the 
National Sex Offender Registry and the National Protection 
Order Files, other components of the records development 
process.
    I assign our grant monitors geographically so they maintain 
liaison with the States, normally over a long period of time, 
and it is important to build the rapport between the grant 
managers at BJS and the States to clearly identify the problems 
inherent in each State worthy of funding; and, secondly, for 
them to participate in our data collection activities to 
quantify the magnitude of those problems, so that we can tell 
you in each State, for example, how many of the records are 
automated, how many of the records are sharable under the FBI's 
Interstate Identification Index, how many records they submit 
to the Sex Offender Registry. So it's important to have that 
close relationship between BJS and the States.
    On the other hand, my job is to enforce all of the special 
conditions that we impose on those grantees with respect to how 
they spend the money, what personnel are on board, whether what 
they do is complementary to the national system that we are 
trying to build and so forth.
    So through the rigorous special conditions, I can enforce 
things that I know through your question you sound worried 
about. But we can enforce those, and then through--when a State 
needs a change, I can issue a grant adjustment which permits 
that change. And it has to be signed by me. So I have 
ultimately the enforcement authority. When States don't expend 
their funds, I can tell them to spend the funds on something 
else.
    For example, after September 11th, I immediately asked them 
to identify where they do not have backup repositories for the 
criminal history records. And I wanted them, where they did not 
have such backup facilities, to spend the money on that, the 
unexpended Federal funds. So I can redirect them fairly 
quickly.
    Senator Feingold. All right. Thank you.
    Mr. Greenfeld, in 1999, you worked on a report called 
``Contacts Between Police and the Public,'' which was an annual 
report to Congress required by the landmark Violent Crime 
Control and Law Enforcement Act of 1994. This was the largest 
survey ever conducted among U.S. residents about contacts 
between police and the public and the outcome of those 
contacts. According to that survey, in 1999 one in every five 
Americans, 20 percent of those over 16, or 43 million people, 
had contact with police mainly through traffic stops 51 percent 
of the time. According to the survey, 10 percent of white 
drivers were stopped and 12 percent of black drivers surveyed 
were stopped, but only 75 percent African-Americans indicated 
that there was a legitimate basis for the stop while 90 percent 
of the white drivers felt the police officer had a legitimate 
reason to pull them over. African-Americans were almost twice 
as likely to have their vehicles searched than whites. Also, 
African-Americans were twice as likely to experience police 
threats or use of force during the traffic stop.
    However, 75 percent of all of the nearly half a million 
people (422,000) involved in a police force incident considered 
the force used by police officers to be excessive and believe 
that the police acted improperly.
    This was an interesting study. Do you know what effect, if 
any, this study has had on police policy? I am sure this was a 
huge task. How often do you think such a survey would be 
undertaken? What would you do differently in any future study 
on this topic?
    Mr. Greenfeld. We plan to replicate the study every 2 years 
through--we utilize the National Crime Victimization Survey as 
a platform because it is a nationally representative sample of 
the U.S. population. And we then survey appropriate groups, in 
this case those age 16 and older, with this supplement to that 
crime survey.
    So our plan is to repeat that every 2 years. This has been 
widely shared with International Association of Chiefs of 
Police, National Sheriffs Association. We spent a good deal of 
time with the Police Corps folks to try to introduce it into 
the training curricula. And we believe that it's--since it was 
the first study of this magnitude, we believe that by repeating 
it over time, we'll get a better sense of whether this is the 
kind of experience people do have.
    But, again, I think you pointed out most of the key 
findings from it, and this is just a very important activity to 
keep going.
    We also plan to complement it with some administrative data 
on use of force in particular, and that will come in the coming 
years through our budget process.
    Senator Feingold. Thank you for that answer.
    Senator McConnell, anything further?
    Senator McConnell. Nothing further, Mr. Chairman.
    Senator Feingold. Thank you for your patience and 
participation. I want to thank all of you for your 
participation and join with Senator McConnell in congratulating 
you. I certainly think matters will in all likelihood move 
forward pretty well here. So I am pleased that we have gone 
through this part of the process.
    The record will remain open for one week to allow Senators 
to submit written questions. That is the conclusion of the 
hearing.
    [The biographical information of Judge Cercone, Judge 
Marra, Judge England, and Mr. Greenfeld follow.]

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    [Whereupon, at 4:00 p.m., the committee was adjourned.]
    [Questions an answers and submissions for the record 
follow.]

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NOMINATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH 
 CIRCUIT; ARTHUR SCHWAB, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN 
DISTRICT OF PENNSYLVANIA; AND TERRENCE MCVERRY, NOMINEE TO BE DISTRICT 
             JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                              ----------                              


                        THURSDAY, JUNE 27, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:04 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl 
presiding.
    Present: Senators Kohl, Leahy, Schumer, Edwards, Hatch, 
Thurmond, Specter, and Sessions.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Senator Specter. Good afternoon, ladies and gentlemen. The 
Committee on the Judiciary will now proceed. Senator Kohl, who 
is scheduled to chair this hearing, will be a little late, so I 
have been asked to move forward.
    We have the distinction today of having Senator Thurmond, 
along with Senator Hollings, introduce the nominee for the 
Court of Appeals for the Fourth Circuit. When I joined the 
Judiciary Committee on January 3, 1981, Senator Thurmond sat in 
this chair and was an inspirational leader. I will tell only 
one short story.
    When he presided at a hearing not long after I became a 
member, he asked a nominee if the nominee promised to be 
courteous if confirmed, and the nominee said yes. And I thought 
to myself, what would any nominee say to that question? I have 
since learned that that is the most important question I have 
heard asked in the Judiciary Committee.
    Senator Kohl has arrived, but I will continue the 
introduction of America's greatest, most distinguished, long-
serving Senator who will celebrate his 100 birthday on December 
5 of this year, in advance of completing his term on January 3 
of next year. I, for one, am still anxious to know if Senator 
Thurmond is going to run for reelection.
    Senator Thurmond?

 PRESENTATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR 
THE FOURTH CIRCUIT BY HON. STROM THURMOND, A U.S. SENATOR FROM 
                  THE STATE OF SOUTH CAROLINA

    Senator Thurmond. Mr. Chairman, I am pleased to welcome 
Judge Dennis Shedd here today. He is a fine judge who will be 
an excellent addition to the Fourth Circuit Court of Appeals. 
Judge Shedd will follow the law and protect the rights of all 
people under the Constitution. I am proud to recommend him and 
I urge you to move his nomination quickly.
    I ask that my full statement be placed in the record.
    [The prepared statement of Senator Thurmond appears as a 
submission for the record.]
    Senator Kohl [presiding.] Senator Hollings?

 PRESENTATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR 
THE FOURTH CIRCUIT BY HON. FRITZ HOLLINGS, A U.S. SENATOR FROM 
                  THE STATE OF SOUTH CAROLINA

    Senator Hollings. Thank you, Senator Kohl, Senator Specter. 
Let me ask unanimous consent that my full statement be included 
in the record.
    Senator Thurmond and distinguished members of the 
Committee, it is a privilege to recommend for elevation from 
the district to the Circuit Court of Appeals in Richmond Judge 
Dennis Shedd. He is familiar to most of the members of the 
Committee, having staffed this Committee for several years, and 
then working, of course, with Senator Thurmond himself.
    Since I have filed my full statement, let me acknowledge 
the fact that I have received communications both from the 
NAACP, the conference in South Carolina, and from one women's 
group nationally. I have looked into those situations and I 
find them wanting with respect to any real opposition to the 
distinguished Judge Shedd.
    His record over 11\1/2\ years will prove that he has had 
almost 6,000 civil and criminal cases before his court and was 
reversed less than two dozen times in the entire 11\1/2\ 
years--an outstanding record of sound judgment.
    When I got these epistles from the NAACP and the ladies 
group, I immediately started checking. We in the law know that 
you never have a character witness come up and tell what he 
knows of his own association, but rather in the trial of a case 
you bring witnesses who give hearsay testimony, namely his 
reputation in the particular community.
    In that regard, having checked it out, Judge Shedd is my 
kind of judge. He is hard, he is tough, but he is hard and he 
is tough on both sides. We who practice law before the courts 
appreciate that because we know what the score is, and we are 
not playing any games and the judge is not going to allow any 
games to be played on you. I have said so often that more than 
a balanced budget, we need some balanced Senators. I present to 
you my friend, Judge Dennis Shedd, a balanced judge.
    I will be glad to try to respond to any questions.
    Senator Thurmond. I might state that with Dennis will be 
his wife, Elaine, and children Sarah and Michael.
    Senator Hollings. Yes. Do you want to stand up here and be 
recognized, Sarah and Michael?
    [Sarah and Michael Shedd stood.]
    Senator Hollings. Thank you.
    Thank you very, very much.
    Senator Kohl. Thank you, Senator Hollings.
    Senator Hollings. Thank you very much, Senator Kohl. I 
appreciate it.
    [The prepared statement of Senator Hollings appears as a 
submission for the record.]

 STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE 
                          OF WISCONSIN

    Senator Kohl. Senator Thurmond, we thank you for gracing us 
with your attendance today. We appreciate it very much. We 
appreciate your statement.
    We welcome the distinguished members of the Senate who have 
been and will be here today to introduce particular nominees. 
Of course, we welcome the nominees, as well as your families.
    Judicial nomination hearings are among the most important 
duties of the Judiciary Committee. A Federal judgeship is a 
lifetime appointment and a job that affects the lives of many, 
many people throughout the course of the judge's tenure. The 
job is a great responsibility entrusted to very few people, and 
all we ask, of course, is that you administer impartial justice 
and obey the Constitution. So we congratulate all of the 
nominees on their selection.
    We would like to proceed in the following manner. After 
opening statements, if there are any, from Committee members, 
we would like for the Senators to present and introduce their 
nominees. Then we will invite all of the nominees forward 
together to appear before this Committee.
    These nominees will include Judge Dennis Shedd, to be 
United States Circuit Judge for the Fourth Circuit; Terrence v. 
McVerry, to be United States District Judge for the Western 
District of Pennsylvania; and Arthur Schwab, to be United 
States District Judge for the Western District of Pennsylvania.
    I would like to recognize members of the Senate who are 
here today to introduce any of the nominees.
    Senator Specter?

PRESENTATION OF ARTHUR SCHWAB AND TERRENCE MCVERRY, NOMINEES TO 
BE DISTRICT JUDGES FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY 
     HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF 
                          PENNSYLVANIA

    Senator Specter. Thank you very much, Mr. Chairman.
    Senator Santorum and I have the pleasure to introduce two 
very distinguished lawyers who have been nominated by the 
President to be district judges for the Western District of 
Pennsylvania. These two men have been recommended by the 
bipartisan nominating commission which Senator Santorum and I 
have established, and I will be brief in the introductions, 
although a great deal could be said about these two men.
    Arthur J. Schwab is a graduate of Grove City College in 
1968, cum laude, and the University of Virginia Law School in 
1972, Order of the Coif. Mr. Schwab has had an extraordinarily 
distinguished career in the practice of law, having tried cases 
in more than 22 states in State and Federal courts.
    He is chief counsel of the complex litigation department at 
the Buchanan Ingersoll firm in Pittsburgh, a larger, very 
distinguished firm, and his practice has been really 
extraordinary in the areas of trade secrets, confidential 
information, employment agreements, software copyright 
infringement, trademark, unfair competition, and various 
corporate matters.
    I have known Arthur Schwab for more than 15 years and I 
have had many legal discussions with him and can personally 
attest to his great depth as an attorney.
    Judge Terrence McVerry is another outstanding nominee, a 
graduate of Duquesne University in 1962, also the law school in 
1968. He has judicial experience, having served on the Court of 
Common Pleas from 1998 to the year 2000. He serves as solicitor 
to the Allegheny County, Pennsylvania, governmental unit, and 
was rated unanimously ``well qualified'' by the American Bar 
Association; very extensive public service, a member of the 
United States Reserves in the Pennsylvania Air National Guard. 
He began his career in the Allegheny County district attorney's 
office.
    I am confident that both Mr. Schwab and Judge McVerry will 
be outstanding additions to the Western District bench.
    Thank you, Mr. Chairman.
    The Chairman. We thank you, Senator Specter.
    Senator Santorum?

PRESENTATION OF ARTHUR SCHWAB AND TERRENCE MCVERRY, NOMINEES TO 
BE DISTRICT JUDGES FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY 
     HON. RICK SANTORUM, A U.S. SENATOR FROM THE STATE OF 
                          PENNSYLVANIA

    Senator Santorum. Thank you, Mr. Chairman, and it is a 
great pleasure and honor for me to join my colleague, Senator 
Specter, in presenting to the Committee these two fine 
gentlemen. As Senator Specter said, I think they will make 
outstanding additions to the Western District bench.
    Let me start in the same order that Senator Specter did 
with Art Schwab. Senator Specter, I think, commented about his 
incredible litigation experience, his work at a large, major 
law firm in Pittsburgh, and the outstanding work that he has 
done within the firm, but also with the Pennsylvania Bar 
Association. He is very active in the Pennsylvania Bar 
Association, very active also in teaching and education.
    He has been active in the community on a variety of 
different fronts. He has been one of Pittsburgh's leading 
citizens in the philanthropic work that he has done, as well as 
the work that he has done, I know, on the board of a university 
in Western Pennsylvania.
    He is a true scholar, someone who has great knowledge of 
the law and has incredible depth of practice experience, and 
will bring a vibrancy to the court that is obviously important 
to the health of our judiciary.
    He has an incredible family. I know his son, John, is here, 
who was an intern for me years ago and who is now a Marine 
lieutenant. He has a terrific family that is a great part of 
the fabric of Western Pennsylvania, and I am very, very excited 
to be here to recommend him to the Committee.
    Terry McVerry is someone whom I have known for better than 
15 years. At one time, he was a neighbor and lived a couple of 
streets away from me. When I first moved into the Pittsburgh 
area he was my State Representative, and I got to know him as a 
State Representative, as someone who was a very conscientious 
legislator and public servant. He served with great distinction 
and had enormous bipartisan support in the time that he served 
as a legislator, and frankly, in a very competitive district, 
never had particularly serious contests because of Terry's 
incredible self-effacing demeanor and wonderful temperament and 
ability to work with people in a very constructive way.
    In fact, I can think back to the time when Terry decided 
not to run again. One of the reasons he decided he didn't want 
to run again is he felt that the legislative arena was just a 
little too combative for him, that it was too partisan for him. 
So he decided to leave and go back to the practice of law, 
which he had been engaged in as an assistant district attorney 
before he ran for office, and practiced law until he decided to 
run--well, actually was appointed to a judgeship in Allegheny 
County, and served with great distinction on the bench for 3 
years.
    He then went on to become the solicitor and head of the law 
department for Allegheny County, which is the county which 
Pittsburgh is in. It is over a million people. He continues to 
serve, again, with great distinction in public service.
    He, too, married well above himself. His wife is a very 
dear friend and someone who has been very close to Karen and 
our family. They are a terrific family, terrific people, and I 
think will be a tremendous asset to the Western District of 
Pennsylvania.
    Thank you, Mr. Chairman.
    Senator Kohl. Thank you, Senator Santorum.
    Senator Sessions, do you want to make a comment before we 
start our proceedings?
    Senator Sessions. I just would note that this is a good 
group of nominees. It is great to see Senator Santorum here. I 
respect his opinion and that of Senator Specter so very much on 
these nominees in their State. And I know Senator Thurmond is 
strongly supportive of Judge Shedd.
    Senator Kohl. Thank you.
    At this time, we would like to ask that the nominees step 
forward and raise your right hands.
    Do you swear the testimony you shall give in this hearing 
will be the truth, the whole truth and nothing but the truth, 
so help you God?
    Judge Shedd. I do.
    Mr. McVerry. I do.
    Mr. Schwab. I do.
    Senator Kohl. Thank you. Be seated, gentlemen.
    If any of the nominees would like to make a statement or 
introduce their families before we start, you are welcome to do 
that.
    We will start with you, Mr. Shedd.

  STATEMENT OF DENNIS SHEDD, OF SOUTH CAROLINA, NOMINEE TO BE 
              CIRCUIT JUDGE FOR THE FOURTH CIRCUIT

    Judge Shedd. Thank you, Mr. Chairman. I don't have a 
statement to make. I would like to thank Senator Thurmond and 
Senator Hollings for their kind introductions, and I would like 
to introduce my family. Again, my wife, Elaine Wiggins Shedd, 
kind of a homecoming for her because she served here as a 
Senate staffer for both Senator Henry ``Scoop'' Jackson and 
Jeremiah Denton, from Alabama. Our children: Sarah, our 
daughter. She is 11 next month. And Michael. He just turned 9.
    We also have some other friends with us: Tom Jones, who is 
practicing law in Baltimore, a former clerk of mine. Jim 
Bayless, a former staffer here, who is a family friend as well. 
I think Mark Goodin is here, who used to be the spokesperson 
for this Committee staff, and also I think Judge Bob Hodges 
from the Court of Claims is here as well.
    Thank you very much, Mr. Chairman.
    Senator Kohl. We thank you, Judge Shedd.
    Mr. Schwab?

  STATEMENT OF ARTHUR SCHWAB, OF PENNSYLVANIA, NOMINEE TO BE 
    DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA

    Mr. Schwab. Good afternoon. Thank you, Mr. Chairman. I 
don't have a statement, but I appreciate the kind remarks of 
Senator Specter and Senator Santorum.
    I would like to introduce my family. My wife, Karen, my 
wife of a wonderful 30-plus years, and my daughter, Ellen, and 
her new husband, Bryan, and my oldest son, John, and my son, 
David.
    I have a friend from law school, Rob Rhodes, and Rob and I 
went through law school for 3 years at UVA together, and law 
review, and we have been good friends over the last 30 years. 
So I am really thankful that he could be here.
    Also, I have two friends from Philadelphia, Margarite and 
her daughter Emily Walsh. Emily, if I may say, just finished 
8th grade and was the Cinderella in her class play, so I am 
really delighted that she could be here. We e-mail back and 
forth, so I am glad that her schedule permitted that both of 
them could visit us from Philadelphia.
    Thank you.
    Senator Kohl. Thank you very much. We welcome all your 
family and friends.
    Mr. McVerry?

 STATEMENT OF TERRENCE F. MCVERRY, OF PENNSYLVANIA, NOMINEE TO 
   BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA

    Mr. McVerry. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here today. I would like to extend my sincere 
gratitude to Senator Specter and Senator Santorum for the kind 
words of introduction and support throughout the nomination 
process.
    I would also like to introduce my wife of 36 years, Judy, 
and our oldest daughter, Erin Crowley. Unfortunately, her 
husband is detained in Bloomington, Indiana, on a new job. And 
our first grandson, 14-month-old Aidan, couldn't be here today. 
He had a prior engagement.
    My daughter, Bridget, is with me today, and my son, Bryan. 
And my daughter-in-law, Cindy, has arrived, who just trained in 
from New York City.
    So I am so happy to have my family here with me today and I 
appreciate the opportunity to answer any questions you may 
have.
    Senator Kohl. Thank you, and we welcome members of your 
family and friends.
    We will start with questions for you, Judge Shedd.
    Judge Shedd, you are aware that the Fourth Circuit is 
considered the most conservative court in the Nation, 
especially on civil rights and constitutional issues. For 
example, the court found that police need not follow Miranda 
warnings, only to be reversed by the Supreme Court. The court 
authorized drug testing for pregnant women without their 
consent, only to be reversed by the Supreme Court. The circuit 
upheld your decision finding the Driver Privacy Protection Act 
unconstitutional, only to be reversed unanimously by the 
Supreme Court. These are just a few of the cases that we could 
offer as examples.
    Can you tell us whether you believe that the Fourth Circuit 
is out of the mainstream today, and if so, how you would go 
about being a moderating force on the court?
    Judge Shedd. Thank you, Mr. Chairman. May I also add that I 
overlooked another former clerk, Garry Malphrus, who was a 
staffer here who has joined us as well. I wanted to add that.
    Let me, in answer to that question, say to you I am always 
a little concerned about characterizing other judges and what 
they do. But I do think that the Fourth Circuit has a wealth of 
different ideas through judges on there that I think people 
would consider more liberal, more moderate.
    And I think, quite frankly, the experience that I have as a 
trial judge--I think I would bring more Federal trial 
experience to the court than anyone there. And my background, 
which is kind of really, as best as I can tell, more similar as 
growing up and background to Judge Gregory--I think that will 
bring some balance to that court.
    Senator Kohl. Judge Shedd, almost 5 years ago you held the 
Driver's Privacy Protection Act unconstitutional in the Condon 
v. Reno case. You said that Congress overstepped its bounds in 
forcing the States to implement Federal policy. Your decision 
was reversed by a unanimous Supreme Court ruling written by 
Chief Justice Rehnquist.
    Beginning with the Lopez decision, the Supreme Court has 
struck down a number of Federal statutes, including several 
designed to protect the civil rights of our more vulnerable 
citizens, as beyond Congress' power. Taken individually, these 
cases have raised concerns about the limitations imposed on 
congressional authority. Taken collectively, they appear to 
reflect a new federalism crafted by the Supreme Court that 
threatens to fundamentally alter the structure of our 
Government.
    If you were back in your role as Chief Counsel of the 
Judiciary Committee, how would you advise us to draft laws that 
would satisfy constitutional analysis? How much deference do 
you believe courts should give when Congress finds an issue is 
of national importance?
    Judge Shedd. Thank you very much. That is a very good 
question. Let me say, Mr. Chairman, first as to the DPPA case 
which I did have--and then you mentioned Lopez, which was the 
guns out of schools act--I had a challenge to that very same 
Act, which I upheld the constitutionality of the congressional 
enactment earlier than Lopez. The Supreme Court went the other 
way from me on that Act, as well, but I said it was 
constitutional.
    I think what I would advise you if you were to ask me to 
and I could do that--I would just say that Congress has to be 
clear in what they are attempting to do, and Congress is going 
to have to do what we judges will have to do, is to look very 
closely at the test the Supreme Court applies.
    You would look to that test to try to fashion legislation 
to meet the objectives that you want to meet, and then we would 
have to look at that test to see if you have done that 
properly.
    Let me say I believe part of my jurisprudence is first you 
presume acts of Congress to be constitutional. And, second, 
under the approach in TVA v. Ashwander, is the doctrine of 
constitutional avoidance. If a judge can figure a way not to 
confront the constitutionality of a statute and risk declaring 
it unconstitutional, that is what a judge should do.
    Senator Kohl. Thank you.
    Judge Shedd, in September 2000 you ruled on an immigration 
case involving a suspected terrorist who was on a hunger 
strike. The strike had lasted for 6 weeks and the INS wanted to 
force-feed that person. You held that the detainee had a 
constitutional right to inaction, even if it could lead to his 
death, and that the refusal to eat was the last and ultimate 
form of protest against the U.S. Government. Many judges have 
disagreed and ordered forced feeding.
    So is it fair to assume that you believe the Constitution 
recognizes a right to die? We don't have your decision in this 
case, so can you tell us whether the right to privacy played a 
role in the decision and more generally what you understand a 
constitutional right to privacy to be?
    Judge Shedd. It is a several-part question, Mr. Chairman. I 
will say first my decision in the protest case--I didn't so 
much focus on the right to die, but I focused on the right to 
protest Government action. I thought of that as a very valid, 
maybe one of the prime civil rights an individual has.
    And if he wanted to protest treatment by the Government to 
the point that he expired, I thought that he had the right to 
do that. I thought that is the last, final form of protest, and 
I looked at that as an individual right issue, that a citizen 
could do that if a citizen wanted to do that.
    On the right to privacy, I would say that I didn't really 
consider that to be a right to privacy. I thought that was more 
a right to protest governmental action. But if I understood 
your question correctly, I do see a right to privacy in other 
contexts in the Constitution.
    Senator Kohl. One more question. In 1994, you considered a 
lawsuit brought by several South Carolinians who asserted that 
flying the Confederate flag over the State house was 
unconstitutional. In that case, you suggested that the American 
flag, or even the palmetto tree, could be just as objectionable 
as the Confederate flag.
    In addition, at the end of the proceedings you expressed 
your frustration with the time being spent on discussing the 
flag when there were other, quote, ``real problems which 
merited more attention.''
    Judge Shedd, we don't need to tell you that the Confederate 
flag and the ideas that it represents offend a great number of 
people who live in the area covered by the Fourth Circuit. They 
believe the presence of the Confederate flag over the State 
house is a real problem, and these people turn to you and the 
system of justice in which you serve for a fair hearing of 
their complaints.
    It sounds like you were minimizing the importance of the 
issue at the time. Looking back at the comments you made at 
that time, would you change some of those comments if you could 
today?
    Judge Shedd. Let me say this, Mr. Chairman. Thank you for 
that question. I think quite frankly, taken in context, that I 
did not make light of their constitutional claim. I said 
specifically to them I do not denigrate your constitutional 
claim. There are people of goodwill on both sides of this 
issue, and also I think the record will reflect I didn't say 
that the American flag was objectionable. I didn't say that the 
palmetto flag was. I was just probing them on their 
constitutional theory.
    And one of the lawyers told me that the flag had to come 
down under his constitutional theory because it was 
controversial, and I just pointed out by way of sort of 
Socratic exchange with lawyers and a judge--that is sort of my 
style--I pointed out there had to be some other standard I 
would have to apply because a lot of things are controversial.
    I said during the Vietnam era, some thought the American 
flag to be controversial, and the reason I said that is I can 
remember from college days burning--I didn't do it, but people 
burning the American flag in protest. Then the lawyer also said 
as part of his constitutional argument that, well, people would 
not come to South Carolina and associate with him because they 
were concerned about that flag.
    And I just made the point I didn't think that was a strong 
enough theory either because people might object to--our State 
flag has a tree on it and that tree represents the fact it was 
cut down to make a fort during the Revolutionary War which 
helped defeat the British. I was just making the point that I 
didn't think that was quite a strong enough argument to him. I 
didn't rule against him. I was just having an exchange with him 
about what his theory was.
    And then at the end or that part of the discussion, I said 
very clearly there are people of goodwill on both sides of this 
issue, that I did not denigrate that constitutional claim at 
all. I didn't even dismiss it. I just retained jurisdiction 
over it. I thought there was a parallel case in State court. I 
said I have great confidence in the courts and the elected 
officials in South Carolina to solve that problem. I would say 
now I think that prediction was right. It was solved in a 
political manner.
    And then quite frankly as to those other comments, Mr. 
Chairman, if I could put those in context, I looked up at that 
hearing and in front of me in that court hearing I had really 
all the powers that be in South Carolina. I had the Budget and 
Control Board. They run the State of South Carolina. I had 
representatives from the Governor, the attorney general.
    And I had had in the previous month, month-and-a-half, 
three enormously egregious circumstances affecting, quite 
frankly, African American citizens in the State. And it wasn't 
planned or anything, but after I said I don't denigrate your 
claim on the flag and we will get back to that and let me talk 
about these other real-life problems that I wish somebody would 
address--and I took that opportunity to comment on them 
because, quite frankly, Mr. Chairman, I thought the 
circumstances that those African Americans who had appeared in 
front of me in other cases had explained to me--I thought they 
were so outrageous and egregious that I was just trying to say 
take a look at those and we need to do something about those as 
well.
    Senator Kohl. We thank you very much.
    Judge Shedd. Thank you.
    Senator Kohl. As we move forward at this time, I would like 
to ask first Senator Hatch if he wishes to make a statement, 
and then we will turn to the members of the House who are here 
who wish to make a statement.
    Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you for your courtesy, Senator 
Kohl. I appreciate it, Mr. Chairman. I would like to make a 
statement because there are, I think, some matters that need to 
be somewhat cleared up, some accusations, that I would like to 
spend a little bit of time on. So it will be a little longer 
than usual and I hope my colleagues will bear with me.
    This is important stuff. We are talking about Federal 
judges here. Of course, I am aware of our two colleagues from 
Pennsylvania, having practiced law in the Western District of 
Pennsylvania myself. We welcome you all to the Committee.
    I would like to ask that I be able to put statements for 
Mr. Schwab and Judge McVerry into the record, if I can, Mr. 
Chairman, if I could put those statements in the record with 
regard to those judges.
    Senator Kohl. It will be done.
    [The statements of Senator Hatch appear as submissions for 
the record.]
    Senator Hatch. I look forward to voting for all these 
nominees in Committee and on the Senate floor. Now, I am going 
to have to spend some time welcoming Judge Dennis Shedd, for 
whom this moment must surely be both a life's milestone and a 
sentimental homecoming.
    I also know this is a proud moment for our dear friend, 
Senator Thurmond, for whom Judge Shedd served in various 
positions, including as chief counsel to this Committee. 
Senators feel very strongly about their staffs, and our legal 
counsels make uncounted sacrifices to work for us and for the 
American people.
    We are surrounded by very talented lawyers who forego 
larger salaries for the sake of public service. Sometimes, they 
put their personal opinions aside to advocate ours. We Senators 
take very personally when they are nominated and given the 
opportunity for yet higher public service. We take personally 
our friendship with them.
    It has been the tradition of this Committee to give great 
courtesy to former staffers. I certainly take it very 
personally, and I know that Senator Thurmond does too. But we 
two former chairmen are not alone in our good impressions of 
Dennis Shedd.
    When Judge Shedd was nominated to the Federal trial bench, 
Chairman Biden had this to say to him, quote, ``I have worked 
with you for so long that I believe I am fully qualified to 
make an independent judgment about your working habits, your 
integrity, your honesty, and your temperament. On all these 
scores, I have found you to be beyond reproach,'' unquote. I 
have to echo that.
    This is high praise indeed, and from a colleague from the 
other side of the aisle for whom we all have the greatest 
respect and who is a former chairman of this Committee as well.
    Judge Shedd has strong bipartisan support in his home State 
as well, and not only from Senators Thurmond and Hollings, who 
know him the best. He is also strongly supported by Dick 
Harpootlian, South Carolina State Chairman of the Democratic 
Party, and himself a trial lawyer.
    Dennis Shedd has served as a Federal jurist for more than a 
decade, following nearly 20 years of public service and legal 
practice. While serving this Committee, Judge Shedd worked, 
among many other matters, on the extension of the Voting Rights 
Act, RICO reform, the Ethics in Post-Employment Act, and the 
1984 and 1986 crime bills. As Senator Biden put it, ``His hard 
work and intelligence helped the Congress find areas of 
agreement and reach compromises,'' unquote. It is no wonder to 
me that during his service on the district court he has sat by 
designation on the Fourth Circuit Court of Appeals on several 
occasions.
    That leads me to address a few issues that have been raised 
in the press and on the websites of the usual suspects in the 
last few days. First, let me address the more ludicrous attempt 
to discredit Judge Shedd that was brought to my attention that 
when he was confirmed to the district court bench, he had 
little experience in the practice of law.
    To ignore the remarkable experience Dennis Shedd had in 
legislative practice crafting historic laws while serving this 
Committee is some chutzpah, is all I can say.
    Senator Schumer. What was that word?
    Senator Hatch. Whatever it is, I know that you understand 
it. And you not only understand it, you have plenty of it 
yourself.
    [Laughter.]
    Senator Schumer. Touche.
    Senator Hatch. I have been told I have some myself. I have 
a limited amount myself, I am sure.
    Senator Schumer. It is a compliment where I come from.
    Senator Hatch. It is for me.
    To raise an objection like that 12 years after the fact is 
just plain silly.
    But let's be clear. When Judge Shedd joins the other 
members of the Fourth Circuit, he will not only have unmatched 
legislative experience, he will also have the longest trial 
bench experience on the Fourth Circuit. He will also add some 
diversity to that court. The last five circuit nominations have 
all been Democrats.
    Interestingly, the last Democrat confirmed, Judge Gregory, 
has affirmed Judge Shedd's rulings in 11 appeals. Notably, 
Judge Gregory also agreed with Judge Shedd's ruling in the 
Crosby case, which found that the Family and Medical Leave Act 
was improperly adopted by Congress, a case which the liberal 
groups seem worked up about. I find it curious that no one 
asked Judge Gregory about his ruling in Crosby when he was 
before this Committee.
    Judge Shedd has heard more than 5,087 civil cases, reviewed 
more than 1,406 reports and recommendations of magistrates, and 
has had before him more than 929 criminal defendants.
    Judge Shedd's record demonstrates that he is a mainstream 
judge with a low reversal rate. In the more than 5,000 cases 
Judge Shedd has handled during his 12 years on the bench, he 
has been reversed fewer than 40 times. That is remarkable, less 
than 1 percent.
    Detractors have made much of the fact that he has a 
relatively few decisions that he has chosen to publish. But, in 
fact, he falls in the middle of the average for unpublished 
opinions in the Fourth Circuit. One Carter appointee has 
published all of seven cases. One Clinton appointee has 
published only 3, and another Carter appointee has published 
just 51, only one more than Judge Shedd, despite being on the 
court 10 years longer.
    Mr. Chairman, Judge Shedd is known for his fairness, total 
preparation, and for showing no personal bias in his courtroom. 
This is not just my opinion; this reflects the opinions of 
lawyers who practice before him. Judge Shedd is well respected 
by the members of the bench and bar in South Carolina.
    According to the Almanac of the Federal Judiciary, 
attorneys said that Judge Shedd has outstanding legal skills 
and an excellent judicial temperament.
    Here are a few comments from South Carolina lawyers: ``You 
are not going to find a better judge on the bench or one that 
works harder.'' ``He is the best Federal judge we've got.'' 
``He gets an A all around.'' ``It's a great experience trying 
cases before him.'' ``He's polite and business-like.''
    Washington's professional nominee detractors, of course, 
have been particularly misleading on Judge Shedd's record on 
employment cases, and I take particular offense at that. They 
have misleadingly pointed out that the judge seldom grants 
summary judgment in employment cases in favor of the employee. 
Of course, few judges do. Such cases are inherently fact-laden 
and go to trial or settle, or the plaintiff too often fails to 
state a claim.
    They could have noticed that he has only twice been 
reversed in employment cases in all of this work he has done, 
but they didn't. They might have pointed out that in one of the 
appeals that he was invited to hear for the Fourth Circuit, he 
reversed a summary judgment and remanded for trial a political 
discrimination case against a worker who was a Democrat. But, 
of course, they didn't notice this.
    Detractors have also tried to make irresponsible claims as 
to the judge's criminal case record. In criminal cases, Judge 
Shedd has strongly defended citizens' due process rights from 
violation by the state. He has frequently chastised law 
enforcement for errors in search warrants and the questionable 
use of seized property. In fact, he has sanctioned the State 
for discovery problems. He is known for aggressively informing 
defendants and witnesses of their Fifth Amendment rights. 
Remarkably, Judge Shedd has never been reversed on any ruling 
considered before or during trial, or on the taking of guilty 
pleas.
    The cases that come before a judge are often difficult. He 
has not been exempted; he has had plenty of tough cases. In one 
case, Judge Shedd allowed a detainee to engage in a hunger 
strike as a protest against government's attempt to force-feed 
him.
    Though some would seek to question Judge Shedd's respect 
for privacy, in two cases he protected HIV blood donors' 
confidentiality. In another case, he ordered special 
accommodations to an HIV-positive defendant to ensure his 
continued clinical treatment. As one of the coauthors of the 
three AIDS bills, I personally appreciate that.
    Of course, a smear campaign against a nominee is not 
complete without the suggestion that they are a foe of 
environmental rights. Judge Shedd's detractors have ignored the 
wetlands protection case, where he handed down tough sanctions 
against a violator and ordered wetlands restoration.
    They also skipped over his decision in favor of National 
Campaign to Save the Environment, and they missed his ruling to 
grant standing to a plaintiff challenging a road construction 
project on its environmental impact. They missed his ruling in 
favor of a woman protesting possible waste-dumping in her 
community.
    But the most breathtaking charge against Judge Shedd was 
the NAACP's earlier this week that he has, and I quote, ``a 
deep and abiding hostility to civil rights,'' unquote. I have 
to tell you I was outraged by this, and I am not the only one 
who has been outraged by this on this Committee. It is a 
distortion far beyond the pale of decency, and I hope that my 
colleagues will be quick to repudiate such rabid practices. In 
part, I am outraged because there are some who would profile 
Judge Shedd as merely a white male from the South and start 
from there to give him a certain treatment.
    I should note that no less a figure than Ralph Neas noted 
in the National Journal in 1987 that the Judiciary Committee 
during Dennis Shedd's tenure had a good civil rights record. 
Now, I am not one who often quotes Ralph Neas, although we have 
been friends and still are. The fact of the matter is that 
Ralph knows he is a good man.
    If his record working for civil rights legislation on the 
Judiciary Committee were not enough of an accomplishment for 
one lifetime for any man or woman, the truth is that in each of 
the cases that have come before Judge Shedd involving the 
Voting Rights Act of 1965, plaintiffs have won their claim.
    In the Dooley case, a one person/one vote case, Judge Shedd 
gave the plaintiff a clear and strong decision. In another 
political rights case, he ruled to protect plaintiff's right to 
make door-to-door political solicitations.
    You know a lot about a judge by how they conduct their 
courtroom. As you know, Mr. Chairman, I have been a strong 
advocate for the protection of religious practices in the 
public square. It says a lot about Judge Shedd, especially in 
these times, that he allowed religious headdress in his 
courtroom.
    Judge Shedd also led efforts to appoint the first African 
American woman ever to serve as a magistrate judge in South 
Carolina and has sought the selection Committee to conduct 
outreach to women and people of color in filling such 
positions. He pushed for an African American woman to be Chief 
of Pre-Trial Services. He has actively recruited people of 
color to be his law clerks.
    Because of Judge Shedd's work in an award-winning drug 
program that aims to reverse stereotypes among 4,000 to 5,000 
school children, he was chosen as United Way School Volunteer 
of the Year.
    Mr. Chairman, I would like to place in the record a very 
touching letter from one of Judge Shedd's former clerks, Thomas 
Jones, who happens to be a person of color, an African 
American, written in favor of Judge Shedd and sent just 
yesterday to Senator Leahy.
    He says, quote, ``It is apparent to me that the allegations 
regarding Judge Shedd's alleged biases have been propagated by 
individuals without the benefit of any real, meaningful 
interaction with Judge Shedd. . .I trust the allegations are 
given the short shrift they are due,'' unquote.
    [The letter referred to appears as a submission for the 
record.]
    Senator Hatch. Last, I would like to address the most 
repugnant attempt to smear Judge Shedd by taking his words 
entirely out of their context with regard to the neuralgic 
issue of the Confederate flag.
    According to one group's website and an NAACP release, 
Judge Shedd is accused of having made, quote, ``insensitive 
comments as he dismissed a lawsuit aimed at removing the 
Confederate flag from the South Carolina statehouse,'' unquote.
    Nothing could be further from the truth. In fact, in the 
Alley case--a complaint brought by white plaintiffs, not 
African Americans--Judge Shedd never addressed the merits of 
the Confederate flag issue. Instead, he stayed the Federal case 
to permit a parallel State action to go forward. The statements 
attributed to him were, in fact, questions to the counsel.
    Judge Shedd explained that he was merely asking questions 
to explore the lawyer's legal theory. He stated, quote, ``Let 
me make it very clear to everybody. I'm not determining now 
whether or not the flag should be there at all,'' unquote.
    Mr. Chairman, I would like to place into the record a 
portion of the transcript from the Alley case which places in 
context what Judge Shedd thinks about the issue of the 
Confederate flag in relation to other issues facing the African 
American community. His is a view shared by many African 
American leaders concerned with the issues facing their 
community.
    [The information referred to appears as a submission for 
the record.]
    Senator Hatch. Remarkably, although taking Judge Shedd to 
task for a Confederate flag case in which he never reached the 
merits of the issue, the liberal groups starkly ignore Judge 
Shedd's ruling in the Vanderhoff case, in which he did reach 
the merits of the issue concerning the Confederate flag.
    In Vanderhoff, Judge Shedd dismissed the claim of a fired 
employee who repeatedly displayed the Confederate flag on his 
toolbox in violation of company policy. Judge Shedd rejected 
the plaintiff's contention that he was dismissed because of his 
national origin as a, quote, ``Confederate Southern American,'' 
unquote.
    In sum, Judge Shedd's detractors have a habit of ignoring 
the positive and accentuating the negative. For these 
irresponsible liberal groups, fair is foul and foul is fair, 
and the truth is what works for them.
    I look forward to this hearing, and I want to thank 
Chairman Leahy and Chairman Kohl for scheduling it and holding 
it. It is important that we treat our former staffers with 
dignity and decency and honor and honesty.
    So I want to thank you, Chairman Kohl, for being the 
chairman of this hearing and for being willing to get this 
hearing done because Judge Shedd has been sitting there now for 
well over a year and he deserves better treatment than this.
    I just want to personally say I know this man. I worked 
very closely with this man, as I have worked with his mentor, 
Senator Thurmond, one of the all-time great Senators of this 
body, a man who has stood up in so many ways for so many good 
people throughout this country.
    I know Judge Shedd very well. He is a man of integrity, he 
is a man of personal perspicacity, and he is a person that I 
have total confidence in. I have watched his record and I have 
been very proud of him. If we had more Federal judges like 
Judge Shedd, this country would be better off. We ought to be 
looking for more like him who will do it the way it is, do it 
the way it should be done, and who literally is honorable in 
everything he does.
    Thank you, Mr. Chairman. Sorry to take so long, but I felt 
like I had to set some of this record straight.
    Senator Kohl. Thank you, Senator Hatch.
    At this time, we would like to ask for statements from two 
members of the House who are with us here.

 PRESENTATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR 
  THE FOURTH CIRCUIT BY HON. JOE WILSON, A REPRESENTATIVE IN 
           CONGRESS FROM THE STATE OF SOUTH CAROLINA

    Representative Wilson. Mr. Chairman, I am Congressman Joe 
Wilson from South Carolina and I am just very honored to be 
here with you and the other members of the Senate who are 
present. This is the first time I have ever been invited to 
appear before a Senate Committee. It is a great honor for me, 
but it is a particularly great honor to be here and speak as to 
the integrity and standing of Judge Dennis Shedd in South 
Carolina.
    I have multiple perspectives that I can tell you about. The 
first is that Judge Shedd used to be a law clerk in the office 
that I worked in until I was elected to Congress, and so I know 
firsthand as a student not too many years ago when the judge 
was just a person that you could count on in our office and we 
are very, very proud of his success.
    Additionally, I have the perspective of having been a 
former employee myself of Senator Strom Thurmond, and we have 
an alumni association of persons who worked with Senator 
Thurmond. It is called the Strom Thurmond University Alumni 
Association, and the reason we call it that is because those of 
us who have worked for the Senator are constantly being taught 
and that is why we call it a university.
    So I have had the wonderful experience of working with 
Judge Shedd for getting the alumni together where we honor the 
Senator and we tell Strom-isms, stories about Senator Thurmond, 
and they are all true. So it is a wonderful experience that we 
have of camaraderie of what we have learned from Senator 
Thurmond.
    Additionally, I can tell you that I was Judge Shedd's State 
Senator for 17 years, and I know of his standing in the 
community. I almost know it, Mr. Chairman, too well, in that I 
was in his court one time as a member of the delegation as a 
defendant.
    We had passed a law, and it was in good faith, to provide 
for a designated seat on a school board for a rural community. 
Judge Shedd was very fair in hearing the evidence. He showed no 
partiality to his former employer and he ruled against us that, 
in fact, we had inappropriately designated a seat and it should 
not have been done. So I know firsthand, again, of his 
integrity and his knowledge and background.
    And then, of course, as a member of the State Senate and 
knowing him in the community, I appreciate his volunteer work 
with the schools, with the sports programs of the community 
that I represented.
    And now I am very honored. I was elected December 18th and 
sworn in on December 19th, and I am now U.S. Representative for 
Judge Dennis Shedd and I am just very honored to be here on his 
behalf. In so many ways, I can point out to you from so many 
perspectives that this is a very fine person, a very 
constructive person in our community, a person of the highest 
integrity, and I urge his confirmation.
    I would be happy to answer any questions.
    Senator Kohl. Thank you very much.
    We need to recess for just a few minutes, but before I do, 
I will give you, Ms. Hart, 2 minutes to make a statement if you 
would like.

PRESENTATION OF ARTHUR SCHWAB AND TERRENCE MCVERRY, NOMINEES TO 
BE DISTRICT JUDGES FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY 
HON. MELISSA HART, A REPRESENTATIVE IN CONGRESS FROM THE STATE 
                        OF PENNSYLVANIA

    Representative Hart. Thank you, Mr. Chairman, and I will be 
brief, as I know you have a lot of work before you today.
    I have the honor of having two of my constituents, or one-
and-a-half of my constituents here today. First, I would like 
to introduce Art Schwab, who is my constituent from suburban 
Pittsburgh. Art is to my right. Good to see you today.
    He has been a long-time colleague, as I have been an 
attorney in Allegheny County, and I am pleased that the 
Committee has decided to have a hearing for him. He has sought 
this appointment for a long period of time, and as we know, 
that would be a financial sacrifice for his family, but he has 
been enthusiastic about public service.
    He has acquired tremendous experience in the law and he has 
been a long-time litigator, obviously very well prepared. He is 
known in our bar association as a dedicated and intellectually 
gifted attorney. His diverse experience includes trying cases 
in Federal courts in 22 different states. His cases have 
included wide-ranging areas of the law, including securities, 
banking, employment, labor, and antitrust. He has offered his 
legal expertise to others through a variety of seminars 
throughout his career.
    In addition to this distinguished service, he has also 
dedicated an extremely large amount of time to his alma mater, 
Grove City College, serving on their board of trustees. He has 
worked to ensure that today's students gain the same high-
quality education from one of Western Pennsylvania's best 
schools, as he did.
    He has been devoted to his family. He is known as a 
wonderful family man and has been quite involved in the lives 
of his children. I am certain he would show that same 
dedication to the district court. His skill and his balanced 
judgment would serve both the court and the Nation well.
    I also have the pleasure of knowing Terry McVerry quite 
well. Terry also is an attorney practicing in Allegheny County, 
and I am pleased that this Committee has decided to have a 
hearing on his nomination, also to the District Court for the 
Western District of Pennsylvania. Terry is especially suited 
for the position as an accomplished attorney, also, and a 
dedicated public servant, as well as a husband and father.
    He worked as an attorney in Pittsburgh for 33 years. He is 
a skilled litigator, trying a variety of cases. He served as a 
trial prosecutor in the Allegheny County district attorney's 
office, where he successfully prosecuted hundreds of cases.
    He has gained varied experience, in civil litigation, 
trying many cases, including medical malpractice, custody 
cases, and business and real estate claims. He is currently 
serving as the Allegheny County Solicitor, so he has been on 
both sides--public service lawyering and also private practice. 
He has also served on charitable boards, such as the 
Neighborhood Legal Services Association, United Mental Health, 
and Performing Arts for Children.
    I know Terry quite well. He was departing the State House 
of Representatives as I was joining the State Senate in 1991. 
He ended his service briefly, though, only to shortly 
thereafter take on a very difficult project, which was the 
drafting of a charter for our county of Allegheny, 1.3 million 
constituents there, a very difficult task that he took on, one 
that took lots of hours and a lot of legal skill, and 
successfully prepared a charter for that county to proceed with 
a much more modern form of government.
    His varied experience as a trial attorney also led him to 
be nominated to serve in a vacancy on our family court, where 
he served with much distinction as well. I know that he will 
also serve Western Pennsylvania and the Nation well on the 
district court.
    I thank you for the opportunity today and I wish both of my 
friends good luck.
    Senator Kohl. Thank you so much.
    There is a vote that will require a 10-minute recess. We 
will be back.
    [The Committee stood in recess from 2:55 p.m. to 3 p.m.]
    Senator Schumer [presiding.] At Senator Specter's request, 
I am substituting for Senator Kohl to chair this hearing until 
Senator Kohl returns, which should be forthwith.
    Senator Specter. I ratify that statement, notwithstanding 
my lack of authorization.
    Senator Schumer. It is Thursday afternoon before recess and 
lack of authorization does not stop much around here.
    Senator Specter. As I said to Senator Schumer, I was asked 
to begin these hearings, as those who were present notice, and 
it is our practice to proceed when the chairman has to go vote.
    Senator Schumer. OK, good. Well, then, I will ask my two 
questions of Judge Shedd. They are both related to federalism 
issues, which you know I care about, and let me first talk 
about the Condon v. Reno privacy case, which I know Senator 
Kohl touched on, but I would like to go into it in a little 
more length. I guess I would have to tell you I would be 
concerned about what they mean regarding your views on two 
things, both privacy and the limits of congressional power.
    As you know, in Condon v. Reno, you struck down the 
Driver's Privacy Protection Act of 1994. That is a bill I 
cosponsored and strongly supported in the House of 
Representatives. The law protected citizens' privacy rights by 
limiting the kinds of information that could be put in the 
public motor vehicle records. It was, and still is, an 
important law because personal information taken from these 
records has been used to hunt down and murder people, including 
the well-known case of Rebecca Schaffer, the actress who was 
stalked and killed in California.
    As you noted in your opinion, quote, ``Congress established 
that criminals had used such information to locate victims and 
commit crimes.'' Nonetheless, you held this important privacy 
law to be unconstitutional because it was an unauthorized 
exercise of Congress' power.
    You held that Congress was powerless to protect 
individuals' private personal information, including an 
individual's name, address, phone number, medical and 
disability and other personal information required in order to 
get a driver's license. That ruling, if it had remained law, 
would have imposed a broad restriction on Congress' power that 
would, in essence, have prevented Congress from using its 
Commerce Clause power to regulate the conduct of employees of 
the State government. Your ruling also would have gutted our 
ability to protect privacy rights through Section 5 of the 14th 
Amendment.
    As you know, you were reversed 9-0 by the Rehnquist Court, 
I guess at that point both Justices Thomas and Scalia voting 
obviously with the majority. They were members of that Court.
    So I guess you can see that some of us in this branch of 
Government would be especially troubled by this ruling, and 
people like myself who have been troubled by this general trend 
to what I would call conservative judicial activism going back 
maybe to the 1930's, in some cases the 1890's, about what 
Congress' power was and what the Federal Government's power was 
in this privacy case.
    So just as today there is lot of criticism about how 
liberal the Ninth Circuit is--I share the revulsion of just 
about everybody at their ridiculous--there is also a lot of 
criticism about how conservative the Fourth Circuit is. I have 
always tried to keep the courts balanced. I would say the Ninth 
and the Fourth, some would argue anyway, are Exhibits A and B 
in why we need moderation in the courts.
    So I would like to ask you two things. First, specifically, 
do you agree with the Rehnquist Court reversal of you in Condon 
or--and I think it is perfectly fair for you to disagree--do 
you disagree with the reversal, with the caveat that, of 
course, you will abide by it because it is the law of the land?
    Second, would you tell me your general views on privacy? If 
you had been on the Court back in 1965 and Chief Justice Warren 
had turned to you in conference about Griswold, what would you 
have said? Would you have ended up in the majority or the 
minority, and what are your thoughts on that?
    Judge Shedd. Thank you, Senator Schumer. As to the Driver's 
Privacy Protection Act, as I remember it, I was the court in 
the country that got that case. I looked at it very carefully. 
I looked at the issues very carefully. I didn't rush to 
judgment on it. As a matter of fact, attorneys from the Justice 
Department came down to argue that case in front of me.
    There were two lines of precedent really to follow. After 
thoughtful consideration, I thought the Printz line of cases 
controlled. The second half of that case, by the way, I did 
acknowledge that there is a right to privacy in information and 
the category of information that the government requires that 
you give them. Some circuits didn't agree with that. The Fourth 
Circuit did and I did agree with that part of it.
    Now, it went to the Fourth Circuit and they affirmed me. It 
went to the Supreme Court. And you asked if I support it. I 
certainly do, and I would say to you I tried as hard as I could 
to get it right, but I got it wrong. I missed it.
    Senator Schumer. Just before we get to the second part of 
that first question, explain to me, then, where you got it 
wrong. I mean, did you think Congress didn't have the power? 
Did you think Congress didn't make the right findings? It is 
clearly not on a privacy basis. You have just said that?
    Judge Shedd. Right. This is the Printz line of cases that I 
followed. The Supreme Court had said that the Federal 
Government could not commandeer State officials to undertake 
their objectives. In my analysis, I thought by fining State 
officials if they didn't follow the dictates of Congress, I 
thought that was the precedent that I should follow. And the 
Supreme Court said in their opinion this is not commandeering.
    I would say, Senator Schumer, as these issues come up and I 
look back, I think I was the first judge in the country to have 
it. I looked back to sort of wonder did I miss it that badly 
and what other judges might have thought about it. And I 
checked to see that at the time that issue got to the Supreme 
Court, 16 judges had ruled on that issue. Eight had ruled 
constitutional, and eight, including me, had ruled 
unconstitutional. So there was just a split among judges.
    But the Supreme Court said I followed the wrong precedent. 
They actually commented more on the Fourth Circuit decision 
affirming me, but I accept that, too, as a comment on my 
ruling.
    I would say this, though. Also, Professor Chemerinski from 
Southern California, who filed an amicus brief with the Supreme 
Court asking them to overturn the Fourth Circuit--I recently 
read a law review article by him saying they got the decision 
right. The result was right, but he thought that the Supreme 
Court had not done a good case in which precedent you are to 
follow. And he wanted them to overturn all the precedents that 
I had followed. I just followed the wrong precedents, but that 
was my reasoning for doing it.
    Senator Schumer. Because I am not familiar with the Printz 
case and its detail, your objection was the method by which 
they required States to----
    Judge Shedd. Yes, sir.
    Senator Schumer. Had they withheld money to States, you 
would have had a different ruling?
    Judge Shedd. Let me say this, Senator, in a general 
response. I think that would have been a different analysis.
    Senator Schumer. How about the next part of my question? 
What would you see if Chief Justice Warren pulled you aside in 
1965 and asked you about the right of privacy in general and as 
it affected the Griswold case, in particular?
    Judge Shedd. Let me say this. In 1965, what would I have 
said, or what would I say now?
    Senator Schumer. Well, I asked in 1965, but you can add 
what you would think now.
    Judge Shedd. I am not trying to be coy, but I would want to 
say this. I am reluctant to talk about a specific fact 
situation. I would like to tell you why. First of all, I have 
found out you can think of any kind of fact situation that may 
never come in front of a court and it likely can. And I would 
feel if I commented on a fact situation, I would have to recuse 
myself if I were on the court that considered it.
    Second, I am a little concerned about general 
characterizations because I have found out in reviewing cases--
just as you, I think, made a very sharp observation about 
withholding money and would that change the analysis, you have 
to be careful about the specifics of the law and what the law 
is at that point and the fact situation.
    I can say this to you, I can say this to you. I think I 
would have said then and I say now I think it is beyond doubt 
that the Constitution does contain the concept of privacy.
    Senator Schumer. And how about as it affects a woman's 
right to choose? Does the penumbra of privacy extend that far, 
in your opinion?
    Judge Shedd. Let me say this. Again, I would rather not 
comment and I want to tell you why, rather than give you my 
personal views about an issue that is not in front of me. I 
don't comment on issues because if somebody were to raise such 
an issue in front of me sitting, I think it does a----
    Senator Schumer. Well, let me go to the Griswold case, in 
particular. That is already resolved. We have no trouble with 
you talking about that because that is resolved. And I have to 
tell you--and I am just speaking for me as one member of the 19 
members of this Committee--I think you have an obligation to 
tell this Committee, to tell the Congress, and to tell others.
    You are being considered for elevation to an extremely 
important position, a lifetime position, and to simply say that 
you don't want to comment, you are sort of giving it to me both 
ways. You are saying, on the one hand, you don't want to 
comment based on a specific fact situation because it might 
come before the court. That is a 1 in 20 million chance. Then 
you are saying you don't want to comment generally because you 
don't know the specific facts. So you are just saying you don't 
want to comment and to me that is not acceptable, at least to 
get my vote.
    Judge Shedd. Well, just let me say this, Senator Schumer. I 
just feel like judges should not give their personal views on 
hypotheticals. As to Griswold, I complete support that 
decision.
    Senator Schumer. You do?
    Judge Shedd. Yes, I do.
    Senator Schumer. So you believe that the right to privacy, 
as embodied in the Constitution, would support a woman's right 
to choose?
    Judge Shedd. Let me explain. I am not trying to be coy with 
you. I am just saying from my perspective I accept that. That 
is the law. I would not do anything other than apply the law. 
And what I personally think--you might well like my personal 
views. I just don't think that that is what I should be doing. 
I understand your position. People don't know my personal views 
because my personal views have not a whit to do with how I 
decide cases.
    Senator Schumer. Judge Shedd, do you know what we have 
found? I know there are some who view, well, the law is 
interpreted from on high and it is objective, regardless of the 
person's views. We find certain exceptions. We find one judge 
who was nominated who was conservative becomes a liberal, or a 
liberal becomes a conservative.
    But, overwhelmingly, people end up interpreting the law and 
it ends up being fairly consonant with their views. It is not 
that you have random scattering of liberals and conservatives 
on issues. So to me it is not exactly accurate to say there is 
just some interpretation of the law apart from ideology that is 
divined as we priests of the law divine it.
    I am going to submit these questions to you in writing and 
ask you to think about it and elaborate. But I would say to you 
again, if you are unwilling to answer them in any more specific 
way, I don't think you are fulfilling your obligation as you 
come before this hearing.
    We are not just here to find out if you are a nice fellow, 
a good family man, and never violated the law. We are here to 
find out what kind of judge you would be, and the way you would 
judge involves your legal abilities and it also involves your 
views, because legal abilities don't inexorably lead to the 
same decision. That is why we don't have just one judge, or 
some computer by now or some textbook interpreting this. So I 
am just telling you I feel strongly about it. I don't feel it 
is fair to ask us to vote yes or no on you without 
understanding those views.
    I have one more question and I am going to be brief about 
it because I know Senator Specter is waiting. Since I had one 
two-part question, now I have my second question, because I 
promised him it would be two questions.
    Senator Specter. I count 14.
    [Laughter.]
    Senator Schumer. Well, they have subparts, as well.
    Just tell me a little bit about Crosby v. South Carolina. I 
add your ruling in that privacy case with your ruling in 
Crosby, where you held the Family Medical Leave Act to be 
unconstitutional on 11th Amendment grounds, and that makes me 
nervous. Again, I think that you sort of usurped Congress' 
power in that regard.
    Do you want to explain to me your decision on that one and 
what assurances you can give us that you will show proper 
deference to the elected body's power here?
    That will be my last question and I will not ask any sub-
questions so Arlen can get to his quick, single question.
    Judge Shedd. Thank you, Senator Schumer, and I will accept 
those questions and if I can give you an answer to make you 
more comfortable on the other questions you asked, I will 
undertake that.
    Second, let me say maybe to make you a little more 
comfortable, I think you probably do know, but on the Gun-Free 
School Zone Act, which was overturned by the Supreme Court in 
Lopez, I had that case presented to me as a case of first 
impression in the Fourth Circuit and I upheld the 
constitutionality. Now, the Supreme Court said I got it wrong, 
not my case, but the idea. But I upheld that against 
constitutional challenge. I just tell you that.
    Senator Schumer. That is interesting and matters to me.
    Judge Shedd. And I do believe--I have great respect for the 
legislature, for Congress. Both having served here as a staffer 
and just my general jurisprudence, I do indeed.
    Senator Schumer. Tell me a little bit about Crosby.
    Judge Shedd. I will tell you about Crosby. Senator Schumer, 
in our district we have a--maybe it is only in our district--we 
have a local rule that says all employment cases are referred 
automatically to the magistrate judge. So we don't get those 
cases on first blush.
    I will tell you this, that over the last three or 4 years I 
have tried to encourage my colleagues to change that rule. I 
think those employment cases should be treated the same as 
others.
    But this Crosby case went to a magistrate judge on 
automatic referral. When it came back up, in that his 
recommendation--I have to accept it, but it is his 
recommendation to me--he said that the Family Medical Leave Act 
was unconstitutional because Congress overstepped its bounds.
    The plaintiff didn't object in that case. I could have just 
probably rubber-stamped that and nobody maybe would have ever 
learned about it. But I noticed that that call of the 
constitutionality of an act of Congress into question--I asked 
the Justice Department to intervene and give us their views, to 
argue that case.
    By our practice, that goes back to the magistrate judge. It 
came back up from him. He reached the same conclusion. I saw 
the Justice Department brief; I read it at that time. I looked 
at all the cases, and I remember specifically having 
discussions about this and I was sure the case was going to go 
to the circuit courts. I was sure it wasn't going to move up. I 
thought his analysis was right.
    Now, just let me say, as I understand it now, either seven 
out of eight or eight out of nine circuits who have looked at 
that issue are in accord with that. But that is what I did in 
that case, Senator.
    Senator Schumer. I may just ask, Mr. Chairman, that I ask 
additional questions in writing on Crosby as well.
    Thank you, Mr. Chairman.
    Senator Kohl [presiding.] Thank you very much.
    Senator Specter?
    Senator Specter. Judge Shedd, just one more question on the 
Condon v. Reno case, and I really mean one question. You had 
come to your conclusion based upon two Supreme Court decisions, 
New York v. United States and Printz v. United States. And as 
noted, you were reversed nine to nothing.
    What were the principles in those two cases which you 
misapplied?
    Judge Shedd. It was a concept, Senator Specter, and I 
appreciate that question, that Congress could act, but Congress 
could not commandeer State officials to carry out a Federal 
objective. And I thought, looking at the Privacy Protection 
Act, where Congress decided to protect that information and 
thereby fine State officials who released that information--I 
thought that was, in essence, the principles the Court was 
setting out in the New York and Printz cases.
    Senator Specter. Judge Shedd, in United States v. Brown, 
you upheld the authority of Congress to legislate on a gun-free 
area near schools, and you were reversed by the Supreme Court 
five to four. I think you got it right, not wrong, five to 
four. I understand that you are bound by that decision, but you 
may be bound by a different interpretation 1 day because the 
exercise of the Commerce Clause had gone on for 60 years and we 
may find that swinging back just a little differently.
    Judge Shedd, I am advised that the South Carolina NAACP 
opposes your nomination. Do you think that is justifiable 
opposition?
    Judge Shedd. Honestly, Senator Specter, I don't think that 
it is. I don't think that at least when I have looked at the 
cases that they point to, I don't think they provide a factual 
basis to draw the inference that they say.
    Senator Specter. What cases are they pointing to, as you 
understand their position?
    Judge Shedd. Well, there are a number of cases. It is the 
Schults decision that I had. There is a Tessman decision. There 
is a Lowry v. Seamless Sensations. They claim, as I understand 
it, that those cases and ones like them indicate that somehow I 
don't like employment cases and I don't treat----
    Senator Specter. Judge Shedd, we are very close to the time 
when another vote is going to be called and we have some more 
nominees.
    Judge Shedd. OK.
    Senator Specter. Those are very important answers, but what 
I would like you to do is submit that for the record.
    Judge Shedd. Sure.
    Senator Specter. I think that is going to require a 
detailed analysis, but I would like you to pick those cases up, 
because that is a very significant consideration, and identify 
those matters and give us a detailed written response.
    Judge Shedd. May I say one thing about that?
    Senator Specter. Sure.
    Judge Shedd. Those cases--there was no comment by me on the 
merits. Those were jurisdictional matters. They had 
jurisdictional defects, but I will be glad to answer that for 
you in writing.
    Senator Specter. Well, jurisdictional cases have a way of 
sliding across the line sometimes, depending upon the facts and 
depending upon the legal conclusions, but I would be interested 
in the details of your reasoning.
    Judge Shedd. Sure.
    Senator Specter. Just one final question, and I mean just 
one final question. On the case involving the palmetto trees, 
this is an extract of a quotation which may be out of context, 
quote, ``What if an environmentalist is upset that the palmetto 
tree is on the State license tag? An environmentalist says I am 
very upset about that because that reminds me that palmetto 
trees were cut down to make Fort Moultrie and I find that 
offense. It chills my rights to have environmental groups come 
to South Carolina. Isn't that the same constitutional claim,'' 
close quote.
    Would you prefer that you hadn't used that analogy, or can 
you explain the justification for it?
    Judge Shedd. Senator Specter, what I was doing there was I 
was probing them on their constitutional challenge to the 
government action of flying that flag. And part of their answer 
was--this is give-and-take and just to probe to see what their 
answer was. I didn't rule on it. I was just trying to 
understand the parameters of their argument.
    And the lawyers said to me basically the flag should come 
down because it is controversial. I was pointing out, I thought 
quite properly, at least in an exchange with them that just 
because government action is controversial, that is not enough 
to state a constitutional claim.
    And I think at some point the counsel said to me, well, 
there is also a right of association because people who are 
offended by that flag won't travel in-state to meet with me. 
And I was just showing him that that may not be a strong enough 
constitutional argument on that point. That was all. It was 
just by way of analogy.
    Senator Specter. A final question. You commented that you 
would bring moderation to the Fourth Circuit. Could you amplify 
what you mean by that?
    Judge Shedd. I think that I would be an influence maybe 
that is not exactly there. I have a background that I think is 
different from most of the judges who are there now. As I said, 
I think my background as best I can tell probably closely 
mirrors Judge Gregory, very much a working-class background, 
and also that I bring more Federal trial experience. I would 
bring that if I am confirmed to the Fourth Circuit than anybody 
sitting with them now.
    Senator Specter. Thank you, Judge Shedd. Thank you, Mr. 
Chairman.
    Judge Shedd. Thank you.
    Chairman Leahy. [presiding.] Thank you.
    You haven't gone yet?
    Senator Edwards. No.
    Chairman Leahy. Well, you go right ahead.
    Senator Edwards. Thank you, Mr. Chairman. I appreciate 
that.
    Chairman Leahy. You are on my blind side. I apologize.
    Senator Edwards. Good afternoon, Judge. How are you?
    Judge Shedd. Good afternoon. Thank you.
    Senator Edwards. Glad to have you with us.
    I just wanted to make one comment about your upholding the 
Gun-Free Schools Act. If I remember correctly, that decision 
was before the series of cases out of the Supreme Court that 
struck down laws under the Commerce Clause. I think around the 
time you reached that decision, it would have probably been 40 
or 50 years since a U.S. Supreme Court decision had struck it 
down. So you were following pretty clearly established 
precedent in that regard, although the law itself was new to 
you, correct?
    Judge Shedd. I think that is correct. I remember there was 
a very vigorous argument against the constitutionality of that 
statute. I can't say otherwise. I think you are right on----
    Senator Edwards. I believe it had been decades since a law 
like that had been struck down.
    Judge Shedd. It may well have been.
    Senator Edwards. I want to ask you about a couple of 
specific cases, if I can. The first one is the Amanda Roberts 
case, a sexual harassment case, and I am going through a series 
of facts as I understand them and if any of these are wrong, I 
want you to tell me and then I want to get your explanation 
about why you reached the decision you did.
    This was a case that she brought where she swore that her 
supervisor had commented on her breasts, asked her graphic 
sexual questions, bought her panty-less pantyhose, frequently 
stood behind her and rubbed her shoulders while trying to look 
down her shirt. Actually, there is more than that; it goes on 
from there.
    The case was first before the magistrate on a motion for 
summary judgment. The magistrate ruled that that be denied and 
that the case go to trial. You disagreed with the magistrate 
and entered a judgment for the company on summary judgment.
    Your analysis, as I understand it, was that she had 
objectively, based on an objective look at the evidence, 
suffered harassment, but, and I am quoting now from your 
decision, ``there was no evidence she perceived her environment 
to be abusive.''
    Let me just ask you about a few facts that we saw in this 
case. One, she did, with her co-worker, report her boss' 
conduct to the corporate headquarters. She wore--I guess this 
is in an affidavit; I am not sure from what I have here--that 
she told her supervisor that she didn't want to hear these 
comments and that she found them offensive, but he paid no 
attention to her objections. Third, she quit her job. Fourth, 
she filed a lawsuit saying she had suffered discrimination.
    As you well know from all your experience, on a motion for 
summary judgment you are required to give the plaintiff the 
benefit of the doubt, without going through the legal 
terminology, including any inferences from the facts the 
evidence shows.
    Can you tell me whether you are aware of other cases--and I 
wondered if this was the basis for your ruling--are you aware 
of other cases holding that a jury could not find that a 
plaintiff who had reported misconduct and complained about it, 
quit her job and filed a lawsuit as a result, subjectively felt 
that she had been harassed?
    First, you should tell me whether I properly understand the 
reasoning that you had, because I just got this from your 
decision.
    Judge Shedd. Thank you very much, Senator Edwards. Let me 
give you a little more background and tell you how I got to 
that decision.
    Senator Edwards. Sure.
    Judge Shedd. As to other lawsuits, I don't know about this. 
But as I understand the law and I understood the law, for a 
hostile work environment there is a two-pronged test. It is the 
objective view of it, what would a reasonable person think of 
it.
    Senator Edwards. Whether she subjectively felt harassment.
    Judge Shedd. And whether she subjectively felt that 
herself.
    Senator Edwards. Right.
    Judge Shedd. I said in my opinion it was objectively a 
hostile work environment.
    Senator Edwards. Right. I saw that.
    Judge Shedd. But I read her deposition very carefully in 
this case and this is what I saw, that she said she left her 
job, the environment, because she wanted to go to work for her 
boyfriend at a convenience store, and that she--the questions 
were asked, well, why didn't you want to work? She said, well, 
things are wishy-washy, and she also recommended to her friend 
that her friend, a female, go to work in the position she was 
leaving. And when asked about the boss that supposedly did 
those things, she said he is a nice guy to work for.
    So that is what I looked at for her subjective intent, and 
I thought that necessarily, Senator Edwards, it has to be more 
than a filing of the action or making the complaint because 
that is part of the objective side of the equation.
    Senator Edwards. I agree with that.
    Judge Shedd. I just looked at it on the subjective side as 
to what she did, and I thought that--as you know, you can't 
make a material issue of fact by having dispute on the same 
side of the issue.
    Senator Edwards. Right, right.
    Judge Shedd. And that is how I analyzed that case.
    Senator Edwards. I guess what troubled me about it was it 
is a state of mind thing that you are talking about. At least 
in my experience, those cases are usually--and probably in your 
experience, too, those are usually left for the jury to 
determine.
    It looked to me from looking through the evidence that 
there was, at worst case for the plaintiff, some conflicting 
evidence on that subject. That is what troubled me about it.
    Judge Shedd. But if the conflicting evidence is on her 
side, I think the summary judgment standard is a little bit 
different. The standard is one side--you can't have a 
deposition--not that she did, but you can't have a deposition 
in which you state a fact and then come back later and file an 
affidavit to contradict that and make that a material issue of 
fact, I think the law is.
    But I want to make clear to you now, if she had said a 
friend of mine wanted that job and I said absolutely it is 
terrible, don't go to work for that guy, I think quite frankly 
the decision would have been different because that was the 
evidence I looked at as to her subjective view of what 
happened.
    Senator Edwards. Let me ask you a broader question. I got a 
letter from law professors in North Carolina, 16 of them, I 
guess, who talked about some of your opinions. And in fairness 
to you, I think I also just got a letter from some law 
professors in South Carolina who----
    Judge Shedd. How many?
    Senator Edwards. I don't remember the number, but they were 
very supportive of you. The ones in North Carolina were not.
    But I wanted to ask you about an assertion that they made 
and whether this is accurate or not because I don't have any 
way of knowing. They said that in the 66 cases that presently 
appear in the Lexis online system--I am reading from the letter 
now--``Judge Shedd appears never to have granted relief to a 
plaintiff in an employment discrimination case, although he has 
granted summary judgment motions in favor of employers.''
    Let me just ask you first, is that accurate? Have you 
granted relief to a plaintiff in an employment discrimination 
case?
    Judge Shedd. Senator Edwards, I would say now it depends on 
what those law professors mean by relief, because as you 
probably know, in an employment discrimination case almost 
never does a plaintiff file for summary judgment.
    Senator Edwards. Right.
    Judge Shedd. So is relief meaning that I have ruled for the 
defendant? Absolutely not. I have denied summary judgment. I 
have given plaintiffs a chance to modify their filing. I have 
refused to grant defense motions to dismiss, absolutely.
    Senator Edwards. As opposed to not allowing the defendant 
to win on a motion, have you ever had occasion to rule on the 
merits of the case yourself as the judge, as opposed to it 
being a jury question?
    Judge Shedd. Not that I can think of because if summary 
judgment fails, then it becomes a jury question.
    Senator Edwards. So in the cases that you did not rule in 
favor of the defendant, what you are saying is they went to 
trial, to a jury?
    Judge Shedd. Or settled, something like that.
    Senator Edwards. Do you have any idea what percentage of 
the cases you allowed to go to trial, as opposed to being 
decided summarily?
    Judge Shedd. I do not know that.
    Senator Edwards. Do you know whether a plaintiff has ever 
prevailed in your courtroom in an employment discrimination 
case?
    Judge Shedd. Yes, sir, they have on a number of occasions. 
Often, those cases don't go all the way to trial. They get 
settled, they get settled.
    Senator Edwards. Has the plaintiff prevailed in a case that 
was decided either by you or by the jury?
    Judge Shedd. I can't ever think--quite frankly, I am not 
even aware of very many employment cases ever finishing in a 
jury trial. I have had them start and the plaintiff settled the 
case, received a settlement, to end the litigation. It is very, 
very rare, I think, from my experience that it gets that far. I 
have had cases where plaintiffs--yes, sir, I have had cases 
where plaintiffs have recovered, not by my ruling because it is 
not in a posture that I can rule that I can think of in an 
employment case.
    Senator Edwards. What I am trying to ask you is you rule 
for the defendant and they get out on your ruling. Scenario 
one. Scenario two: the case is settled and the plaintiff 
recovers. Scenario three: the case goes either to you or to a 
jury, depending on the nature of the case.
    Judge Shedd. I have never had one come to me.
    Senator Edwards. In the third category, has the plaintiff 
ever won?
    Judge Shedd. Let me say I can't ever remember that I have 
had an employment case that was tried to me as a judge.
    Senator Edwards. OK. Well, then, let's go to the jury.
    Judge Shedd. And then to the jury, I can't remember, but I 
am just saying the practice is in our district--I just can't 
even think of any case in our district wherein the employment 
case goes to a verdict for the plaintiff. Those cases--at least 
my experience has been they settle; they settle those cases. 
But I can't think of one right off. I could see, but I have had 
plaintiffs be successful in front of me because of my rulings, 
not granting the defense what they wanted.
    Senator Edwards. Mr. Chairman, do I have time for one more?
    Chairman Leahy. We do have a vote on, as you know, but go 
ahead, of course.
    Senator Edwards. Let me just do this one last area and then 
I will be finished. Bear with me, Judge.
     The last thing I want to followup on is the questions that 
you got from--I will followup on some questions that Senator 
Schumer just asked about this case involving--I guess it is the 
Condon case involving the Driver's Privacy Protection Act.
    I am aware of, I think, eight to ten cases since 1995 where 
the Supreme Court has struck down a congressional statute on 
federalism grounds. Can you tell me whether you are aware of 
any case where a lower court, such as you were sitting in this 
case--where a lower court has struck down a statute, a 
congressional statute, on federalism grounds and then the 
Supreme Court reversed it, which is what happened in this case?
    Judge Shedd. Let me think. Well, on Lopez, I guess that was 
Commerce Clause. Would you consider that, the guns out of 
school Act? I think the lower court struck that. I did not.
    Senator Edwards. Right.
    Judge Shedd. Senator Specter said that the Supreme Court, 
you know, reversed me five to four, but that wasn't my 
decision. That wasn't my decision. They dealt with the other 
decision. I would have to think about that to be sure.
    Senator Edwards. OK. So we don't take too much time on this 
now, would you mind finding out that information and giving me 
an answer to that?
    Judge Shedd. Sure.
    Senator Edwards. Basically, the question is a case where a 
lower court rules, the Supreme Court says it is 
unconstitutional, and the Supreme Court reverses and finds, in 
fact, that the statute is OK. I am just asking you whether that 
happened any other times during this timeframe.
    The second thing is you found, as I understood it, and I am 
reading from your opinion now, that the law was 
unconstitutional because it--I am paraphrasing now--invades the 
rights of States. And then you say--this is a quote; what I am 
about to read is a quote--``Unquestionably, the States have 
been and remain the sovereigns responsible for maintaining 
motor vehicle records, and these records constitute property of 
the States.''
    And then you went on to say the Act was unconstitutional 
because, quote, ``Instead of bringing the States within the 
scope of an otherwise generally applicable law, Congress passed 
the DPPA specifically to regulate the States' control of their 
property''--i.e., motor vehicle records--``and to require the 
States to regulate their citizens' access to and use of these 
records.''
    Here is my question: It is my understanding that a lot of 
the airports in this country are private airports, that they 
are operated by State and municipal entities, much like these 
drivers' records in South Carolina. They are especially 
regulated by the Congress and by the FAA, and the Congress can 
say, for example, that you can't have a runway shorter than 
7,000 feet, or you can't have an airport without a barb wire 
fence, or you can't allow airplanes from particular places like 
Cuba or Libya to land. I am just trying to figure out whether, 
under your reasoning, that kind of regulation and control would 
be a problem.
    Let me give you an example. Let's suppose you use the 
language and the reasoning in your case and instead of talking 
about records, which your case was about, let's say commercial 
airports. So we say instead of bringing the States within the 
scope of an otherwise generally applicable law, Congress passed 
these airport rules specifically to regulate the States' 
control of their property--i.e., commercial airports--and to 
require the States, in turn, to regulate their citizens' access 
to and use of these commercial airports.
    I guess my question is whether the reasoning that you use--
and I want to be clear now that I am talking about State-owned 
airports here--whether the reasoning that you use would limit 
our ability to impose at a national level security measures in 
those airports, which, of course, we have been doing recently, 
particularly since 9/11.
    Can you talk about that?
    Judge Shedd. May I address that in general terms?
    Senator Edwards. Sure.
    Judge Shedd. Off the top of my head, that question--I would 
say to you the analysis would have to look at those airport 
regulations, considering the fact that Congress has regulated 
in that area. I know you are talking about separate State-owned 
or community-owned airports, but I think under the scheme of 
not really a preemption, but the fact that there is Federal 
regulation of Federal aviation generally--I think that would 
lead to a different analysis.
    Senator Edwards. I don't know how closely you followed the 
argument in your case in the Supreme Court, but this is not 
original thought by me. This is an argument that the Solicitor 
General made, I think, in the Supreme Court with respect to 
that. So it apparently concerned the Solicitor General under 
these circumstances that this was a possibility.
    Can you tell me something that would alleviate that 
concern?
    Judge Shedd. I could say this: I think the analysis is 
entirely different. I think the analysis would be different 
because, again, I pointed out that those State----
    Senator Edwards. You think the analysis is different 
because the Federal Government had regulated in this area 
before. Is that what you are saying?
    Judge Shedd. Yes, yes, sir.
    Senator Edwards. OK, all right. Has the Federal Government 
regulated privacy before this statute, the Driver's Privacy 
Protection Act?
    Judge Shedd. Well, they have, but they haven't done it in 
the context of a driver's license. That is information that the 
State requires you to give them. I separated it out on that. 
Yes, the Federal Government has regulated privacy--wiretapping 
statutes and other things.
    Senator Edwards. Right, right.
    Judge Shedd. Yes, they have.
    Senator Edwards. Thank you, Judge. Thank you very much.
    Judge Shedd. Thank you.
    Chairman Leahy. We have a vote on. We will stand in recess. 
Senator Kohl is on his way back.
    [The Committee stood in recess from 3:39 p.m. to 3:43 p.m.]
    Senator Kohl [presiding.] At this time, we will renew our 
hearing and I will call on Senator Sessions for his questions.
    Senator Sessions. Thank you, Mr. Chairman.
    I am really pleased to see all of you fine nominees here. 
Judge Shedd, it is a particular pleasure to see you. I know 
that they want to ask you a lot of questions about a lot of 
tough cases, but I don't think ``tough'' is maybe the perfect 
word for it. It is just cases that are complex and require 
judicial wisdom and the best judgment you can give it, and it 
is not always clear what the Supreme Court is going to come out 
and say ultimately.
    But your reputation across the board, as counsel on this 
Committee, was above reproach. When I was a member of the 
Department of Justice, I knew of your reputation and it was 
extraordinary and sterling. You had a great reputation here and 
you have had a great reputation as a judge.
    People can knit-pick your record, but they won't find 
anything, in my view, that is unworthy. It is particularly 
distressing, and I think unhealthy and wrong--I almost want to 
use the word ``despicable''--to take somebody's comments in a 
Socratic-type discussion with lawyers and try to twist that so 
as to represent an opinion and distort a person's testimony. 
Those comments, if anybody had been present in the room, would 
never have been interpreted that way, and I am sorry that you 
have had to undergo some of that.
    It has been really impressive to see this group of South 
Carolina law professors who submitted a strong, strong letter 
on your behalf, signed by almost one-third of the faculty 
members at the University of South Carolina School of Law, 
including Professor Dennis Nolan, the Webster Professor of 
Labor Law and Chair of that department; Professor Ladson Boyle, 
Charles E. Simon Professor of Federal Law; Professor Ralph 
McCullough, II, Distinguished Professor of Law and American 
Trial Lawyers Professor of Advocacy, and Chair of the American 
College of Trial Lawyers--that is the plaintiff group--and 
David G. Owen, Carolina Distinguished Professor of Law and 
Director of the Office of Tort Studies.
    So this is a bipartisan group of professors that have 
endorsed you with a strong comment, and actually dealt with 
several of the issues in depth that I think clearly justify 
your position.
    I will just say, Mr. Chairman, I know that there might be a 
temptation or tendency to say that the Fourth Circuit is 
somehow a particularly conservative circuit. I think it is a 
solid circuit that is hard-working, carries one of the heaviest 
caseloads in America, and they follow the law consistently.
    They do not have anything like the reversal record that the 
Ninth Circuit has. That is the circuit out of which we have the 
Pledge of Allegiance matter that caused so much disturbance. 
One year, the Ninth Circuit was reversed 27 out of 28 cases. I 
have studied this. Over a decade, no circuit approaches their 
reversal record. One year, they had 13 unanimous opinions by 
the U.S. Supreme Court reversing their opinions.
    So I think the Ninth Circuit is a circuit that has 
problems. No other circuit has anything like the consistent 
record of reversals of the Ninth Circuit, and that is because 
it is an activist circuit. The Supreme Court has felt an 
obligation to contain their opinions and not allow them to run, 
although they have so many cases in that huge circuit that they 
are really not able to monitor it closely enough, I am afraid.
    Judge Shedd, with regard to the Gun-Free School Zones Act, 
which was an interstate commerce case in which the U.S. Supreme 
Court concluded that the Congress had overreached, when that 
case came before you, you voted to uphold the congressional 
enactment. Is that right? You voted, I guess, as somebody would 
say today, on the liberal side or the left side.
    Judge Shedd. Well, I will let you characterize it, but I 
did vote to sustain the Act. That is correct.
    Senator Sessions. Later, the Supreme Court concluded that 
there was not sufficient interstate commerce nexus. Now, I know 
some lawyers here want to forget that there is in part of our 
Constitution a requirement of interstate commerce connection on 
many of the matters that are legislated.
    Could you just simply tell us in your opinion what the 
Supreme Court was saying, as you understand it, in that Gun-
Free School Zones Act and maybe give us a perspective of what 
this commerce issue is about and why people could disagree on 
something this complex?
    Judge Shedd. I can do that, in part, Senator Sessions, by 
talking about some of the arguments in front of me as I was 
asked to decide the constitutionality, and that is just as sort 
of a primer on the law. I am sure you understand this, but you 
asked me to say it, so I will.
    Senator Sessions. No, not well enough.
    Judge Shedd. Well, under the Commerce Clause, Congress 
has--under the Constitution, has tremendous power. It is just 
that the Supreme Court sees that under the Commerce Clause that 
power is not a hundred percent complete that Congress can act 
and do anything they want to; that if there is an interstate 
nexus--and basically it is even broader than that; that is, if 
an activity touches on or affects interstate commerce.
    Quite frankly, we can take it back to some of the very 
valid desegregation cases; I think the one with Ollie's 
Barbecue in Atlanta, which the Court reached to them because I 
think maybe the mustard or catsup on the table of the barbecue 
place had come interstate, and maybe travelers went there, as 
well. But as long as there is some connection or affecting of 
interstate commerce, then, in fact, Congress has broad 
authority to act.
    Let me say what commentators have said because I am trying 
very much to stay away from me adding anything else to my 
rulings. It would be that in that schools free of guns zone 
act, the Lopez case, that there wasn't the nexus, there wasn't 
the interstate nexus that was required.
    And, quite frankly, you know--and I know you prosecuted 
cases as a U.S. Attorney--felon in possession is a Federal 
charge, but--and I have had these cases--you have to show the 
interstate nexus. You have to show that that gun at some point 
traveled in or about or across the State line. You have to show 
that.
    Senator Sessions. That is correct, Mr. Chairman. I became 
somewhat of an expert in my office when I was an Assistant 
United States Attorney and I learned to prosecute the cases 
under 1202(a) Appendix. Somehow, that was one of the possible 
charges you could utilize on it because of the complexity of 
that thing.
    But, fundamentally, Congress cannot act on an activity that 
is solely in-state and has no outside connection to it, and to 
rule otherwise would be a historic expansion of Federal power 
that we have never had. So this Supreme Court is wrestling with 
where that line should be.
    The statute did not require in the Gun-Free School Zones 
Act that the gun travel in interstate commerce. It simply made 
it illegal, a Federal crime, for a person to possess on a 
schoolyard a gun. The Supreme Court said it wasn't even an 
element that it be transported in Interstate Commerce and they 
couldn't do that.
    You were wrestling with that same issue to some degree with 
the driver's license deal, and I guess you turned out to be 
wrong on both counts, didn't you?
    Judge Shedd. I am sorry you said that, but that is correct.
    Senator Sessions. But that is all right. I mean, that is 
the way life is. I mean, you have to call opinions. On the 
driver's license case, you concluded there was not sufficient 
nexus, and the Supreme Court found that there was. On the other 
one, you approved it. So I just think that is a pretty weak 
basis to complain about your fitness for the bench.
    Judge Shedd. May I say, Senator Sessions, I want the 
Committee to understand I wasn't trying to reach any result 
because of what I felt. I think ``wrestling'' is a good word to 
describe it, what judges have to do. And I was trying to get it 
right; that is what I was trying to do. And as you pointed out, 
I didn't get it right in either case, but I was sure trying to.
    Senator Sessions. And with the DPPA case, if another one 
came before you today, would you hesitate to follow the Supreme 
Court ruling?
    Judge Shedd. Not in the slightest.
    Senator Sessions. You are not obsessed with some States' 
rights view here that would cause you to not follow a Supreme 
Court ruling, are you?
    Judge Shedd. Absolutely not.
    Senator Sessions. It has been made clear now and you would 
follow it?
    Judge Shedd. I said I got it wrong. I would follow Supreme 
Court precedent, and I would do that without any bitter feeling 
about it. Of course, I would apply the law.
    Senator Sessions. With regard to that case, the professors 
at South Carolina wrote in some depth about it and they said, 
``While the Supreme Court ultimately ruled that DPPA 
represented a valid exercise of Congress' commerce power, 7 of 
the other 15 lower court judges who considered the issue prior 
to the Court's decision agreed with Judge Shedd.''
    So 7 of the 15, almost half of the 15 lower court judges 
who had the same question you did agreed with you. Among those 
were Judge Barbara Crabb, the Chief Judge of the Western 
District of Wisconsin, an appointee of President Jimmy Carter, 
and Judge John Godbold, of the Eleventh Circuit, one of the 
great judges in America, a Johnson appointee who headed the 
Judicial Conference and who was chief judge in both the Fifth 
and the Eleventh Circuit and is a brilliant judge and certainly 
not considered a conservative.
    In addition, several Governors, including Governor Jim 
Hunt, of North Carolina--I know my good friend here, Senator 
Edwards, is from North Carolina. His Governor agreed with you, 
and so did his attorney general, Mike Easley, I believe, who 
had joined in the brief on the side of your opinion.
    These law professors note, ``To us, the disagreement among 
lawyers, judges, and scholars regarding whether DPPA was 
constitutional in the wake of the Supreme Court's decisions in 
the Printz and other opinions reflects the difficult question 
presented in this case. Judge Shedd's opinion represents a 
reasoned, albeit later overruled, approach to the question.'' 
So I think that is important for us.
    Do we have a time limit here? I wanted to mention a couple 
of things.
    Senator Specter. Senator Sessions, we have a Judiciary 
Committee briefing on the FISA matter which was scheduled to 
begin at 3:30.
    Senator Sessions. I will be glad to yield if you need to 
go.
    Senator Kohl. We will submit any other questions you may 
have for the record.
    Senator Sessions. I will be glad to do that.
    Senator Kohl. We thank you so much.
    We appreciate your being here today, Judge Shedd. I am 
particularly impressed with your wisdom in upholding the 
constitutionality of the Gun-Free School Zones Act. I wrote it, 
so you made a good decision.
    Judge Shedd. You did a good job writing it, too. Let me 
commend you.
    [Laughter.]
    Senator Kohl. Thank you for being here.
    Senator Sessions. That was a good answer.
    Judge Shedd. Mr. Chairman, may I leave?
    Senator Kohl. Yes, you may.
    Judge Shedd. Thank you very much.
    Senator Kohl. Thank you so much.
    [The biographical information of Judge Shedd follows.]

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    Senator Kohl. We will now proceed with our two nominees 
from Pennsylvania, and I will defer my questions until you 
finish, Senator Specter.
    Senator Specter. Well, no. Let me defer to you, Mr. 
Chairman.
    Senator Kohl. Go ahead, go ahead.
    Senator Specter. Judge McVerry, one of the critical issues 
which this Committee is concerned about is judges interpreting 
the law, as opposed to being legislators, and not establishing 
new laws in accordance with whatever predisposition the 
individual judge may have.
    What assurances can you give this Committee and the full 
Senate that on the bench you will interpret rather than make 
the law?
    Mr. McVerry. Thank you, Senator Specter. I have been a 
practitioner of the law for 33 years, and for 12 of those years 
I served in the Pennsylvania General Assembly and I jealously 
protected at that time, and to the extent that I was able since 
that time, the legislature's prerogative to pass and enact 
laws, and those laws are to be respected by the courts, in my 
view.
    We have a very milestone or cornerstone precept of our law 
that is stare decisis, which is that we at the district court 
level must follow the decisions of appellate courts, the Third 
Circuit Court of Appeals and the U.S. Supreme Court. And it is 
not the prerogative of the court, especially at the district 
court level, to make law. It is their prerogative to interpret 
law.
    And I bring with me my experience as a member of the 
legislative body who was very concerned about that very thing 
relative to judges interpreting laws differently than they were 
intended by the General Assembly, or Congress in this instance. 
And I pledge to you that I will not let that happen in my 
courtroom.
    Senator Specter. What if you had a case before you on the 
facts which was very compelling, leading you to be strongly 
inclined as a matter of intuitive justice to find for, say, the 
plaintiff and the reading of the appellate decisions led you to 
the conclusion that judgment ought to be entered for the 
defendant as a matter of law?
    Would you seek to exercise any so-called wiggle room to try 
to find a way to put your own stamp of justice on the case, at 
variance with the legal precedents to the contrary?
    Mr. McVerry. Senator, I would not, and I would not simply 
for the reason of stare decisis that I just enunciated. It 
would be my duty, if confirmed, to be aware of the status of 
the law from a statutory perspective, and also from case 
interpretations of the circuit and Supreme Court, and those 
would be applied. It is not my place to attempt to interpret 
the facts of a case in a way to avoid the law as has been 
enunciated by Congress and the appellate courts.
    Senator Specter. Judge McVerry, you will be coming to a 
court which is very, very busy, and one of the great problems 
in the administration of justice has been delays. The courts in 
America, perhaps more the circuit courts than the district 
courts, are sometimes very, very tardy, sitting on some cases 
for a matter of years. We took a look at the case involving the 
spill in Alaska. It has been 11 years in litigation over the 
issue of punitive damages.
    What assurances can you give this Committee that you will 
undertake whatever hours it takes to keep a very current 
docket?
    Mr. McVerry. Frankly, Senator, the only assurance I can 
give you is the materials that I have provided to show you that 
I have demonstrated a work ethic comparable to any productive 
lawyer in Allegheny County, in Western Pennsylvania, over the 
course of the last 33 years. I have never been questioned in my 
work ethic, both as a prosecutor, as a trial lawyer, as a 
member of the General Assembly, and more recently as the 
solicitor of the county and a judge on the court.
    Now, I know that, if confirmed, I will be going into a 
court where justice has been delayed, and justice delayed is 
denied. And the reason it has been delayed is that there 
haven't been appointments to make our court a full complement 
for quite some time, and I will dedicate myself and the staff 
that I assemble to try to keep our caseload manageable and to 
keep it moving through monitoring of the cases with case 
management orders, with monitoring by law clerks and myself, 
and attempt to expedite matters that come before us and not 
leave them languish without decision.
    Senator Specter. When I started the hearing today a moment 
or two before Senator Kohl arrived, I commented about what 
Senator Thurmond, when chairman, had said on questioning a 
nominee--do you promise to be courteous--and I noted that I 
thought that was not a very meaningful question, because what 
could the nominee say but yes?
    But as I said, I have come to find that that is the most 
important question that I have heard, and I have been here for 
22 years and we have had more than 50 judges confirmed in 
Pennsylvania. Senator Heinz and I had a nominating Committee, 
and Senator Santorum and I do, and I am sorry to have to say 
that I have had reports back about people who had made that 
pledge who haven't kept it.
    There may be sort of an inevitable quality when you assume 
that black robe and you have a lifetime appointment and you 
have a bad day and you have litigants before you or lawyers 
before you to be impatient or to be rude.
    I have a good idea what your answer will be if you promise 
to be courteous, but I really expect you to do that as the 
imprimatur of the Senate and those of us who have worked to 
secure your nomination, and I think confirmation, and to really 
take it seriously.
    If you are inclined someday on a bad day, on a bad morning, 
in an argument which is frivolous, will you promise under the 
most trying circumstances to be courteous?
    Mr. McVerry. I do promise to do that, Senator Specter, and 
I worked diligently to do that for the 19 months that I served 
as a Common Pleas Court judge in Allegheny County. One of the 
admonitions that lawyers give one another in the camaraderie of 
anticipation to a position such as this is don't forget where 
you came from, Terry; don't forget who you were, don't forget 
that you were a practicing lawyer before a judge and you have 
had those experiences where you have been treated 
inappropriately by a judge and your client has been treated 
inappropriately by a judge.
    I will never lose sight of the fact, Senator Specter, that 
I am a public servant. I am there to serve the people and I 
want people who come through my courtroom, be they lawyers, 
litigants, or jurors, to have a meaningful, positive experience 
in the judicial branch.
    Senator Specter. When you were a Common Pleas judge, did 
you have to stand for election, retention, or otherwise?
    Mr. McVerry. I did. I had to stand for election.
    Senator Specter. Senator Kohl and I might point out to you 
that standing for election gives you a somewhat different 
perspective from a lifetime appointment. But I have your 
commitment, and we also have another hearing on the FISA 
oversight work.
    May I proceed with Mr. Schwab or should I defer to you, Mr. 
Chairman?
    Senator Kohl. Go ahead. You can finish.
    Senator Specter. Mr. Schwab, you have had all this time to 
prepare your answers because you know my questions. If you have 
something where you have very, very strong philosophical views, 
and however strongly you may feel about something, are you 
prepared to make a firm, irrevocable commitment that you will 
follow the law as articulated by the appellate courts and be 
bound by that without any deviation to any personal views you 
may have about a substantive subject?
    Mr. Schwab. Senator Specter, I give you my word that I will 
follow what the law is and I will work hard to discern what 
that law is from the Third Circuit and from the Supreme Court. 
I also assure you that I will work hard to listen to the facts, 
to listen to the testimony, to understand as best I can, judge 
the witnesses' demeanor, and apply the law as I understand it, 
the best I can to the facts as I find them, and to make my 
decision. I give you my word in that regard.
    Senator Specter. While it might be considered a softball, 
on the issue of not legislating from the bench but interpreting 
the law, give me a brief statement of your judicial philosophy 
on that issue.
    Mr. Schwab. As I said in the material I submitted, I am 
committed to interpreting the law, not legislating. I am 
committed to judging statutes that come before me, if you are 
so gracious to confirm me, in a way that gives deference to 
those statutes on a constitutional basis.
    Senator Specter. Someday, when it is late in the day and 
you have some lawyer before you on a trademark case and the 
lawyer doesn't understand the issues in trademark as you do and 
there is some frivolous argument made which tries your patience 
beyond endurance, will you remain courteous?
    Mr. Schwab. I will work hard to remain courteous. My wife 
says that I have been making improvement in that training, so I 
can assure that I will----
    Senator Specter. Well, beyond working hard, Mr. Schwab, 
will you remain courteous?
    Mr. Schwab. Yes.
    Senator Specter. Just remember the commitment you made 
today.
    Mr. Schwab. I will, Senator.
    Senator Specter. It is four o'clock, past four. It has been 
a long day and there is a lot more to today, and Senator Kohl 
and I sometimes become a little impatient ourselves, but we 
have to run for reelection.
    I know you are a hard worker, but I want your commitment 
that on the Western District you will tackle all those cases 
and watch your backlog and make timely decisions and not be on 
the delinquent sheet.
    Mr. Schwab. I can assure you that that will occur. And if 
it is a comfort, on the courteous issue you know my record and 
you know the bar positions I have occupied, and I don't believe 
one would get consistently elected to those type of positions 
if one had not dealt courteously over many years with the 
people that place you and elect you into those positions. So I 
think there is a record that you can judge in that regard.
    Senator Specter. All right. We have your commitments, 
gentlemen. These nomination proceedings are recollected 
sometimes long after the fact, and not too long ago Justice 
Souter said to me, I still remember the question you asked me 
about whether Korea was a war or not and I still haven't made 
up my mind. That has been more than 10 years ago.
    Justice O'Connor had her confirmation hearing 21 years ago. 
She was here 21 years ago, in 1981. So these confirmation 
hearings have an effect and an impact, and I don't expect to 
hear any comments from attorneys or litigants before you 
contrary to your promises today, gentlemen.
    Mr. McVerry. Thank you, Senator.
    Mr. Schwab. Thank you, Senator.
    Senator Specter. Thank you. Thank you very much, Senator 
Kohl.
    Senator Kohl. We thank you very much, Senator Specter, for 
your thoughtful questions.
    For both of you, two questions. In the past few years, 
there has been a growth in the use of so-called secrecy or 
protective orders primarily, as you know, in product liability 
cases. We saw this, for example, in the recent settlements 
arising from the Bridgestone/Firestone lawsuits. Critics argue 
that these protective orders oftentimes prevent the public from 
learning about the health and safety hazards of the products 
that they use.
    Should a judge be required to balance very carefully the 
public's right to know against a litigant's right to privacy 
when the information sought to be sealed could keep secret a 
public health and safety hazard?
    Mr. McVerry?
    Mr. McVerry. Mr. Chairman, I believe that that is the case. 
In other words, I believe that the court should make an 
independent inquiry into requests for protective orders, 
especially when the health, safety and welfare of the public is 
at risk.
    I think historically, or at least often--maybe I shouldn't 
say historically--often, protective orders are the result of a 
negotiated settlement between the parties to the litigation, 
and maybe the court doesn't look into those matters, or hasn't 
historically looked into those matters when maybe it should, 
cases that are settled outside of the court's domain, and maybe 
they are not--sometimes, I think things that are characterized 
as protective orders may really be confidentiality agreements 
between consenting settlers of litigation which might be 
outside the realm of the court.
    But to the extent, however, that a request for a protective 
order is addressed to the court, I think that judges do have a 
responsibility to look into the interests of the public from a 
health and safety perspective.
    Senator Kohl. Should those interests be primary in a 
judge's consideration, or secondary?
    Mr. McVerry. I don't know that I can answer that they 
should be primary or secondary. I think they should be part of 
the overall consideration that is being presented. I don't 
think that a court should simply, because the lawyers want the 
matter to be confidential, rubber-stamp that request and make 
it confidential. I think that----
    Senator Kohl. Well, if the judge determines that public 
health and safety is involved, should he then take the position 
that the secrecy agreement is not to be permitted?
    Mr. McVerry. Well, it is hard to make a generalized 
statement that in every statement where you make a level of 
determination that the health and safety of the public is at 
some degree of concern. So I can't make a generalized 
statement, but I can say to you that in matters of that sort, 
when I review them as a judge, if I am confirmed, that they 
will be a major consideration of mine.
    Senator Kohl. Thank you.
    Mr. Schwab?
    Mr. Schwab. Mr. Chairman, I thank you for the question and 
I appreciate your sensitivity to this issue. As you know, I 
spent a substantial amount of my time in trade secret cases, 
and I would say 90 percent or more of those cases involve 
confidentiality agreements. So I appreciate the question and I 
understand the sensitivity to the issue.
    I think as a judge one would have to examine each case and 
determine whether the entering of this order has an effect on 
the public. If it has an effect on the public, then it has to 
be approached differently than a situation where there is no 
public interest and there are just two litigants that are 
fighting over a trade secret or a patent or some other matter. 
And then when that matter comes before the court, you would 
sign the consented-to confidentiality agreement.
    But in the case, in particular, of a settlement in which 
into the settlement agreement was placed confidentiality 
provisions relating to discovery that related to public health 
or safety, then I think a judge has to be very sensitive to 
what is going on. And it may be necessary--and I am speaking 
generally, but it may be necessary at that time to find a 
separate counsel to somehow--either a governmental body or some 
other entity that would provide counsel on that issue so at 
least that issue as to the confidentiality of that information 
as it relates to the public, that that issue would be litigated 
somehow before the court.
    Senator Kohl. Thank you.
    Gentlemen, Federal judges serve a meaningful role in their 
communities beyond hearing and deciding cases. Our vision of 
trial court judges today is of people who are actively involved 
beyond their courtrooms and understand the importance of such 
things as drug diversion programs and alternative punishments 
for juvenile offenders.
    Will you each take a moment to discuss your vision of what 
it means to be a Federal judge, with a focus on the importance 
of each judge in their community?
    Mr. McVerry?
    Mr. McVerry. Mr. Chairman, I think that it is important for 
all members of the profession, the legal profession, be they 
judges or not, to be active participants in their community to 
the extent that it is not inconsistent with their duties and 
responsibilities as a member of the court.
    I can think of particular instances where my wife and I are 
active in church activities, and I would see that we would 
continue to do that. I suppose that there are certain community 
activities in which we can be involved. I can't think of any 
off the top of my head right now, but I would not abrogate my 
responsibility in my community simply by becoming a Federal 
district court judge.
    Senator Kohl. Mr. Schwab?
    Mr. Schwab. Mr. Chairman, consistent with the judicial 
ethics, I would remain active in the community, and I mean 
community in a broad sense. Subject to the proper approvals, I 
would intend to still teach at UVA at the trial advocacy 
program that is taught every year there, and that includes not 
only attorneys, but students that attend that course.
    I would continue, if permitted, to teach the intellectual 
property course that I currently teach that I think keeps one 
not only active in the community, but before college students 
and dealing with college students on a regular basis.
    I have taught, as indicated in my material, a course on 
several different occasions to about 150 women on finances as 
it relates to particular women's issues, and I would continue 
to teach those courses as I have the opportunity.
    Senator Kohl. Mr. Schwab, in April of this year the 
Committee received a letter from Jerome Shestack, a former 
President of the American Bar Association and a former Chair of 
the ABA's Standing Committee on the Federal Judiciary. In that 
letter, he pointed out that in your testimony before the 
Committee in 1988 you alleged that the ABA rated you as not 
qualified for the U.S. Court of Appeals for the Third Circuit 
because of your religion.
    With the benefit of hindsight and knowing that Mr. Shestack 
has categorically denied that any such discrimination occurred, 
do you still believe you were singled out because of religion?
    Mr. Schwab. Mr. Chairman, I believe my testimony--and I 
have re-read it--at that time was accurate. I did not mean to 
offend anybody by that testimony, but I sincerely believe that 
it was accurate. And I believe my testimony at that time was 
not a statement against the entire Committee in any way, and 
that those people, I believe, operated in good faith.
    What I did say at that hearing--and I believe it was the 
truth--was that that gentleman asked me questions about my 
children attending a Christian school and whether that school 
engaged in any discrimination. I assured him that it did not 
and that in its bylaws it expressly provided for non-
discrimination.
    I was asked questions in the questionnaire that I had to 
complete relating to religion, and I believe his position was 
there was never any question raised at any time about religion. 
And I pointed out to Senator Biden--Chairman Biden at that 
time--at the Committee that there was a particular question 
that did ask about religion, and I did disclose religious 
information that I was an elder in a church and other religious 
information in that questionnaire as it existed at that time, 
which I think was in 1987. And that testimony, also, I gave 
with the support and with the permission of Senator Specter.
    Senator Kohl. Mr. McVerry, in the past few years, beginning 
with the Lopez decision, the Supreme Court has struck down a 
number of Federal statutes, including several designed to 
protect the civil rights of our more vulnerable citizens, as 
beyond Congress' power.
    Taken individually, these cases have raised concerns about 
the limitations imposed on congressional authority, and taken 
collectively they appear to reflect a new federalism crafted by 
the Supreme Court that may threaten to alter fundamentally the 
structure of our Government.
    What advice would you give Senators who are drafting 
legislation to comply with the new federalism?
    Mr. McVerry. Mr. Chairman, I don't presume to be an advice-
giver to Members of Congress. I think that, however, I will 
insofar as I think that Members of Congress need to look at the 
reasoning of the Supreme Court in making those decisions and 
make a determination, as has been earlier said by Judge Shedd, 
as to whether there was an effect on interstate commerce or 
whether it had been proven in the preamble of the legislation.
    I can't speak to the specific statutes or that case, but I 
think that working with the direction of the Supreme Court in 
its observations of the congressional action will give guidance 
to Congress to be able to accomplish the goal that it set out 
to accomplish in another form, I presume.
    Senator Kohl. All right, we thank you very much, gentlemen.
    Before we adjourn the hearing, we would like to place a 
statement from Senator Leahy in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Kohl. We appreciate your being here and we wish you 
the best. Thank you so much.
    Mr. McVerry. Thank you very much, Senator.
    Mr. Schwab. Thank you so much.
    [The biographical information of Mr. McVerry and Mr. Schwab 
follow.]

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    Senator Kohl. This hearing is adjourned.
    [Whereupon, at 4:20 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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NOMINATION OF PRISCILLA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH 
  CIRCUIT; TIMOTHY J. CORRIGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE 
    MIDDLE DISTRICT OF FLORIDA; AND JOSE E. MARTINEZ, NOMINEE TO BE 
          DISTRICT JUDGE FOR THE SOURTHERN DISTRICT OF FLORIDA

                              ----------                              


                         TUESDAY, JULY 23, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein, presiding.
    Present: Senators Feinstein, Kennedy, Leahy, McConnell, 
Sessions, Schumer, DeWine, Feingold, Durbin, Brownback, 
Cantwell, and Edwards.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Senator Feinstein. We will begin the hearing. Members will 
be coming in from time to time.
    Before I make my opening statement, I would like to just 
quickly run through the protocol for this hearing. There are 
three panels that we will be hearing today. Members will be 
called on the basis of the early bird rule. We will alternate 
from side to side. For those that do not know the early bird 
rule, it is an incentive to get members to come to committee 
promptly.
    There will be a vote, I think around 10:30. We will recess 
for that vote. This session will run from 10 to 12:15. We will 
begin again at 2 and go through to 5, at which point the 
hearing will end. If we need an additional hearing, that can be 
determined at that time. There will be two votes this 
afternoon, I believe at 2:45, and we will do a similar thing. 
We will simply adjourn and go and cast our votes and promptly 
return here.
    I would like to begin by saying that there are three 
panels. We have three distinguished members on the first panel. 
Senator Kay Bailey Hutchison is traveling and will arrive a 
little late and I have agreed to take her statement as soon as 
she comes in, so we will stop whatever we are doing and listen 
to her when she comes in.
    We will then hear the statements from the members and then 
a statement from the chairman of the committee and the ranking 
member.
    I would like to welcome Priscilla Owen on behalf of the 
Judiciary Committee. Justice Owen comes to us with a 
distinguished record and with the recommendations of many 
respected individuals within her State of Texas. She currently 
sits as one of nine Justices on the Texas Supreme Court, which 
is the court of last resort for civil cases in that State.
    Justice Owen is a graduate of Baylor University and Baylor 
Law School, and before joining the Texas Supreme Court in 1995, 
she was a partner in the law firm of Andrews and Kurth.
    As indicated by the large number of people in this room--in 
fact, as indicated by the size of the room itself--this is a 
nomination that has received a lot of interest. My office has 
received dozens of letters of support and of opposition from 
organizations within Texas and from national organizations, as 
well, on both sides of the debate, so feelings run very, very 
strong. We will, of course, keep order and we do not appreciate 
any comment from the audience.
    I am keeping an open mind on this nominee, as I do with all 
nominees. I first met with her several weeks ago. I found her 
to be personable, intelligent, and well spoken. It is clear to 
me that Justice Owen knows the law, she is very capable, and 
that she would be an excellent advocate for a cause.
    But the question this committee must answer for this and 
all nominees is whether this individual would make a good 
Federal judge, a Federal appellate judge, and that 
determination includes questions beyond intelligence and 
character. We must also ask about temperament and the ability 
to decide cases on the law, not on personal beliefs.
    The concerns that have been raised about Justice Owen go to 
the heart of these questions. Accusations have been made that 
Justice Owen too often stretches or even goes beyond the law as 
written by the Texas legislature to meet her personal beliefs 
on several core issues, including abortion and consumer rights.
    I have read through a great deal of the material about 
Justice Owen in preparation for this hearing, including a 
number of opinions she has written on a variety of subjects, so 
I am very interested to hear from Justice Owen on these issues 
today, after which I will carefully review the record and make 
what is sure to be a very difficult decision, as we all will 
do.
    So now, I would like to turn to the ranking member and then 
to the chairman of the committee.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Madam Chairman. I want to welcome 
all nominees today, as well as the Members of the Congress who 
have come to testify on their behalf.
    I ask that I be able to put statements for Messrs. Timothy 
Corrigan and Jose Martinez into the record. I would ask 
unanimous consent for that.
    Senator Feinstein. Without objection.
    Senator Hatch. I would like especially to welcome Justice 
Priscilla Owen of Texas, our lone Circuit Court nominee. I 
intend today to comment on Justice Owen's qualifications and to 
address some of the deceptions, distortions, and demagoguery 
orchestrated against her nomination that we have all read in 
the national and local papers. I have long looked forward to 
this hearing, and I expect she has, as well.
    I would like first to comment on the two jingoes that are 
being used about her record as if they had substance, namely 
that Justice Owen is ``conservative'' and that she is ``out of 
the mainstream.'' Of course, this comes from the Washington 
interest groups that we have seen year after year, in many 
cases, who think that the mainstream thought is more likely to 
be found in Paris, France, than in Paris, Texas.
    I must admit that it is curious to hear it argued that a 
nominee twice elected by the people of the most populous State 
in the circuit for which she is now nominated is ``out of the 
mainstream.'' Texans will no doubt be entertained by whoever 
says that.
    Listening to some of the commentary on judges, I sometimes 
think that mainstream for them is a Northeastern river of 
thought that travels through New Hampshire early and often, 
widens in Massachusetts, swells in Vermont, and deposits in New 
York City. Well, the mainstream that I know and that most 
Americans----
    The Chairman. That is impossible to do geographically, but 
that is OK.
    Senator Hatch. I understand. That was the point.
    [Laughter.]
    Senator Hatch. The mainstream that I know and that most 
Americans relate to runs much broader and further than that.
    The other mantra repeated by Justice Owen's detractors is 
that she is ``conservative.'' Now, I believe that the use of 
political and ideological labels to distinguish judicial 
philosophies has become highly misleading and does a misservice 
to the public's confidence in the independent judiciary of 
which this committee is the steward. I endorse the words of my 
friend and former Chairman Senator Biden when he said some 
years ago that, ``Judicial confirmation is not about pro-life 
or pro-choice, conservative or liberal, it is not about 
Democrat or Republican. It is about intellectual and 
professional competence to serve as a member of the third co-
equal branch of the government.''
    I believe it is our duty to confirm judges who stand by the 
Constitution and the law as written, not as they would want to 
rewrite them. That was George Washington's first criterion for 
the Federal bench and it is mine. I also want common sense 
judges who respect American culture. I believe that is what the 
American people want, as well.
    I believe we do a disservice to the independence of the 
judiciary by using partisan or ideological terms in referring 
to judges. My reason was well stated by Senator Biden when he 
said that, ``It is imperative not to compromise the public 
perception that judges and courts are a forum for the fair, 
unbiased, and impartial adjudication of disputes.''
    We compromise that perception, I believe, when we play 
partisan or ideological tricks with the judiciary. Surely, we 
can find other ways to raise money for campaigns and otherwise 
play at politics without dragging this nation's trust in the 
judiciary through the mud, as some of the outside groups 
continue to do.
    All you have to do to see my point is read two or three of 
the fund-raising letters that have become public over the past 
couple of weeks that spread mistruths and drag the judiciary 
branch into the mud, as many recent political campaigns 
increasingly find themselves.
    On a lighter note, while on ideology, let me pause to point 
out that one of the groups deployed against Justice Owen is the 
Communist Party of America, but then, I do not know that they 
have come out in favor of any of President Bush's nominees. I 
suspect after the fall of the Berlin Wall, they must have a lot 
of time on their hands these days.
    Today, I wish to address just why a nominee with such a 
stellar record, a respected judicial temperament, and as fine 
an intellect as Justice Owen has, who graduated third in her 
class from Baylor's Law School, a great Baptist institution, 
when few women attended law school, let alone in the South, who 
obtained the highest score in the Texas Bar examination and who 
has twice been elected by the people of Texas to serve on their 
Supreme Court, the last time with 83 percent of the votes and 
the support of every major newspaper of every political stripe, 
I would like to address just why such a nominee could be here 
today with as much organized and untruthful opposition from the 
usual leftist Washington special interest groups that we see.
    I will peel through what is at play for these groups. We 
need to expose and repel what is at play for the benefit and 
independence of this committee, and I would like to address 
also the reasons why I am confident that she will be confirmed 
notwithstanding, not least of which is that this committee has 
never voted against a Circuit nominee with the American Bar 
Association's unanimous rating of ``well qualified,'' the 
highest rating they give. Justice Owen has that highest of 
ratings.
    The first reason for the organized opposition, of course, 
is plain. Justice Owen is from Texas, and Washington's well-
paid reputation destroyers could not help but attempt to attack 
the widely popular President of the United States at this 
particular time in an election year by attacking the judicial 
nominee most familiar to him, Justice Owen. Welcome to 
Washington.
    But as I prepared more deeply for this hearing, the second 
reason became apparent to me. In my 26 years on this committee, 
I have seen no group of judicial nominees as superb as those 
that President Bush has sent to us, and he has sent both 
Democrats and Republicans, men and women, Hispanics, African 
Americans, and Caucasians.
    In reading Justice Owen's decisions, one sees a judge 
working hard to get it right, to get at the legislature's 
intent, and to apply binding authority and rules of judicial 
construction. It is apparent to me that all of the sitting 
judges the President has nominated, that of all of them, 
Justice Owen is the most outstanding nominee. She is, in my 
estimation, the best that every American, every consumer, and 
every parent could hope for.
    Her opinions, whether majority, concurrences, or dissents, 
could be used as a law school textbook that illustrates exactly 
how, and not what, an appellate judge should think, how she 
should write, and just how she should do the people justice by 
effecting their will through the laws adopted by their elected 
legislatures. Justice Owen clearly approaches these tasks with 
both scholarship and mainstream American common sense. She does 
not substitute her views for the legislature's, which is 
precisely the type of judge that the Washington groups who 
oppose her normally want.
    She is precisely the kind of judge that our first two 
Presidents, George Washington and John Adams, had in mind when 
they agreed that the Justices on the State Supreme Courts would 
provide the most learned candidates for the Federal bench.
    So in studying her record, the second reason for the 
militant and deceptive opposition to Justice Owen became quite 
plain to me. In this world turned upside down, simply put, she 
is that good.
    Another reason for the opposition against Justice Owen is 
the most demagogic, the issue of campaign contributions and 
campaign finance reform. Some of her critics are even eager to 
tie her to the current trouble with Enron. Well, she clearly 
has nothing to do with that. Neither Enron nor any other 
corporation has donated to her campaigns. In fact, they are 
forbidden by Texas law to make campaign contributions in 
judicial elections.
    Despite the politics, I am certain that Justice Owen is 
quite eager to address this issue fully, and being a Texas 
woman, I trust she will not embarrass the questioner too 
badly--not that there is a need for more questions. The Enron 
and campaign contributions questions were amply clarified in a 
letter to Chairman Leahy and the committee dated April 5 by 
Alberto Gonzales, the White House Counsel. I ask, Madam 
Chairman, to place this and other related letters into the 
record at this point.
    Senator Feinstein. So ordered.
    Senator Hatch. And I would place into the record a 
retraction from the New York Times saying that they got the 
facts wrong on this Enron story. Such retractions do not come 
often, although the misstatement of facts by the destroyer 
groups do. So I would ask unanimous consent that that go in the 
record.
    Senator Feinstein. Without objection.
    Senator Hatch. I also hope that Justice Owen will get a 
chance to address her views on election reform and judicial 
reform, of which she is the leading advocate in Texas. She is 
also a leader in gender bias reform in the courts and a 
reformer on divorce and child support proceedings. I hope she 
will have an opportunity to address these matters and about her 
acclaimed advocacy to improve legal services and funding for 
the poor.
    All of these are aspects of her record her detractors would 
have us ignore. I do not know about my other colleagues, but I 
certainly did not read these positive attributes in those fancy 
documents, or should I say booklets, released over the past 
several weeks by the People for the American Way and their co-
conspirators in the Washington special interest lobby.
    I ask, Madam Chairman, to place in the record letters from 
the leaders of the Legal Society and 14 past presidents of the 
Texas Bar Association, many of whom are Democrats. I ask 
unanimous consent for that, as well.
    Senator Feinstein. Without objection.
    Senator Hatch. The fourth reason for the opposition to 
Justice Owen is the most disturbing to me. For some months now, 
a few of my Democrat colleagues have strained to point out when 
they believe they are voting for judicial nominees that they 
believe to be pro-life. I have disputed this when they have 
said it is because the record contains no such information of 
personal views from the judges we have confirmed. Each time 
they assert it, my staff has scoured the transcript of hearings 
and turned up nothing. What does turn up is that each time my 
colleagues have asserted this, they have done so only for 
nominees who are men.
    I am afraid that the main reason Justice Owen is being 
opposed is not that personal views, namely on the issue of 
abortion, are being falsely ascribed to her--they are--but 
rather because she is a woman in public life who is believed to 
have personal views that some maintain should be unacceptable 
for a woman in public life to have.
    Such penalization is a matter of the greatest concern to me 
because it represents, in my opinion, a new glass ceiling for 
women jurists, and they have come too far to suffer now having 
their feet bound up just as they approach the tables of our 
high courts after long-struggling careers. I am deeply 
concerned that such treatment will have a chilling effect on 
women jurists that will keep them from weighing in on exactly 
the sorts of cases that most invite their participation and 
their perspectives as women.
    Ironically, the truth is that the cases that her detractors 
point to as proof of apparently unacceptable personal views are 
a series of fictions. This is what I mean about exposing the 
misstatements of the left-wing activist groups in Washington. I 
will illustrate just three of these fictions.
    The first sample fiction is the now often-cited comment 
attributed to then Texas Supreme Court Justice Alberto 
Gonzales, written in a case opinion, that Justice Owen's 
dissent signified ``an unconscionable act of judicial 
activism.'' Someone should do a story about how often this 
little shibboleth has been repeated in the press and in several 
websites of the professional smear groups. I would venture that 
some of my colleagues have it on the first page of their 
briefing memos even now. The problem with it is that it is not 
true. Justice Gonzales was not referring to Justice Owen's 
dissent, but rather to the dissent of another colleague in the 
same case.
    The second sample fiction is the smear groups' 
misrepresented portrayal of a case involving buffer zones and 
abortion clinics. In that case, the majority of the Texas 
Supreme Court ruled for Planned Parenthood and affirmed a lower 
court's injunction that protected abortion clinics and doctors' 
homes and imposed $1.2 million in damages against pro-life 
protesters. In only a few instances, the court tightened the 
buffer zones against protesters. Justice Owen joined the 
majority opinion and was excoriated by dissenting colleagues, 
who were admittedly pro-life, by the way.
    When describing that decision then, abortion rights leaders 
hailed the result as a victory for abortion rights in Texas. 
Planned Parenthood's lawyer said the decision ``isn't a home 
run, it's a grand slam.'' Of course, that result has not 
changed, but the characterization of it has. This is how 
Planned Parenthood describes the same case in their fact sheet 
on Justice Owen. ``Owen supports eliminating buffer zones 
around reproductive health care clinics.'' In fact, her 
decision did exactly the opposite, and I think this committee 
deserves and should demand a formal apology and full 
explanation.
    The third and most pervasive sample of fiction concerns 
Justice Owen's rulings in a series of Jane Doe cases which 
first interpreted Texas's then-new parental involvement law. 
The law, which I think is important to emphasize was passed by 
the Texas legislature, not Justice Owen, with bipartisan 
support, requires that an abortion clinic give notice to just 
one parent 48 hours prior to a minor's abortion. Unlike States 
with more restrictive laws, such as Massachusetts, Wisconsin, 
and North Carolina, consent of the parent is not required in 
Texas. A minor may be exempted from giving such notice if they 
get court permission.
    Since the law went into effect, over 650 notice bypasses 
have been requested from the courts. Of these 650 cases, only 
ten have had facts so difficult that two lower courts denied a 
notice bypass. Only ten have risen to the Texas Supreme Court. 
Justice Owen's detractors would have us believe that in these 
cases, she would have applied standards of her own choosing. 
Ironically, in each and every example they cite, whether 
concurring with the majority or dissenting, Justice Owen was 
applying not her own standards, but the standards enunciated in 
the Roe v. Wade line of decisions of the U.S. Supreme Court, 
which she followed and recognized as authority.
    For example, detractors take pains to tell us that Justice 
Owen would require that to be sufficiently informed to get an 
abortion without a parent's knowledge, that the minors show 
that they are being counseled on religious considerations. They 
appear to think this is nothing more than opposition to 
abortion rights. They are so bothered with this religious 
language that various documents produced by the abortion 
industry lobby italicize the word ``religious.''
    But this standard is not Justice Owen's invention but 
rather the words of the Supreme Court's pro-choice decision in 
Casey. Should she not follow one Supreme Court decision but be 
required to follow another? Is that what we want our judges to 
do, pick and choose which decisions to follow? That appears to 
be the type of activist judge these groups want, and this 
committee should resist all such attempts to get that type of a 
judge.
    The truth is that rather than altering the Texas law, 
Justice Owen was trying to effect the legislators' intent. No 
better evidence of this is the letter of the pro-choice woman 
Texas Senator stating her ``unequivocal'' support of Justice 
Owen. Senator Shapiro says of Justice Owen, ``Her opinions 
interpreting the Texas parental involvement law serve as prime 
example of her judicial restraint.''
    I am sorry I am taking a little longer, but I will finish 
in just a minute.
    I understand why the Washington left-wing groups do not 
like that in a judge, but this committee should applaud and 
commend such restraint and temperament.
    The truth is that rather than being an activist foe of Roe, 
Justice Owen repeatedly cites and follows Roe and its progeny 
as authority. Compare this to Justice Ruth Bader Ginsburg, who 
wrote in 1985 that the Roe v. Wade decision represented 
``heavy-handed judicial intervention'' that was ``difficult to 
justify.''
    Now, in relation to this, I would like to briefly comment 
on the mounting offensive of some to change the rules of 
judicial confirmation by asking nominees to share personal 
views or to ensure that nominees share the personal views of 
the Senator on certain cases.
    To illustrate my view, I will tell you that many people 
have recently called on this committee to question nominees as 
to their views on the Pledge of Allegiance case. My full-
throated answer to this is no, as much as I think that that 
case was wrongly decided. I also happen to think that the 
recent school voucher case is the most important civil rights 
decision since Brown, but I am not going to ask people what 
they think about that case, either.
    Such questions threaten the heart of the independent 
judiciary and attempt to accomplish by hidden indirection what 
Senators cannot do openly by constitutional amendment. It is an 
attempt to make the courts a mere extension of the Congress.
    I speak against this practice in the strongest terms, and 
in my view, any nominee who answers such questions would not be 
fit for judicial office and would not have my vote.
    The truth is that there are many who, like Justice 
Ginsburg, think that cases like Griswold or Roe were wrongly 
decided as a constitutional matter, even if they agree with the 
policy result, just as the great liberal Justice Hugo Black did 
in his dissent in Griswold. A few weeks ago, we heard testimony 
that Chief Justice Warren thought Board of EducationBoard of 
Education was his worst ruling as a matter of constitutional 
law, but not his least necessary.
    Again, I welcome Justice Priscilla Owen. Considering the 
opposition mounted so unfairly against you, I have to tell you 
that today, you may be the bravest woman in America. I hope 
that there are young women watching you right now. You are an 
excellent role model for anyone, and especially young women.
    Some of Justice Owen's detractors have made much about the 
fact that she is not afraid to dissent. Of course, they fail to 
mention dissents like her opinion in Hyundai Motor v. Alvarado, 
in which Justice Owen's reasoning was later adopted by the U.S. 
Supreme Court on the very same difficult issue of law.
    They also overlooked her dissent in a repressed memory 
sexual abuse case where she took the majority to task with 
these words: ``This is reminiscent of the days when the crime 
of rape went unpublished unless corroborating evidence was 
available. The court's opinion reflects the attitudes reflected 
in that era.''
    Perhaps, Madam Chairman, they thought that dissent 
reflected too well the perspective of a woman to point out to 
Senators like all of us up here.
    Despite deceptive opposition, I think that Justice Owen 
should be confirmed, first, because I believe that colleagues 
like many on this committee, and hopefully all of us, will be 
fair. I also believe my Democratic colleagues will be led by 
the time-tested standards well stated by Senator Biden and look 
again to qualifications and judicial temperament, not base 
politics. Whether the Biden standard will survive past our time 
will be tested in this case. If we fail the test, we will 
breach our responsibility as auditors of the Washington special 
interest groups and the judiciary's stewards on behalf of all 
people and not just some.
    I want to thank you, Madam Chairman. I know I took a little 
longer than I usually do, but I felt that it needed to be done 
in this case and I look forward to the testimonies here today.
    Senator Feinstein. Thank you, Senator Hatch.
    The Chairman of the Committee, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. Madam Chair, I will not do as my friend 
from Utah did and give a long speech that simply delays these 
proceedings. I will put my speech in the record.
    I also have great respect for the chair of this committee, 
the Senator from California, and I know she will hold a fair 
hearing, and unlike my friend from Utah, I will make up my mind 
after hearing the facts and not decide them before we even have 
the hearing.
    We will have hearings today on the 79th, 80th, and 81st 
judicial nominees since I took over on July 11. Justice Owen is 
the 17th Court of Appeals hearing we have had.
    I would point out that Justice Owen has been nominated for 
the United States Court of Appeals for the Fifth Circuit, to a 
seat vacated by William Garwood in January 1997. President 
Clinton had nominated Jorge Rangel, a distinguished Hispanic 
attorney from Corpus Christi, to fill that vacancy. He had a 
unanimous rating of ``well qualified'' by the ABA, something 
the Senator from Utah says is very important. But the Senator 
from Utah and the Republican-controlled Senate refused to give 
him a hearing, and after 15 months, his name was returned. He 
was never allowed to have a hearing.
    So then President Clinton nominated Enrique Moreno, another 
outstanding Hispanic attorney, to fill the same vacancy. This 
committee, under Republican chairman, did not allow him to even 
have a hearing for the 17 months that his name was pending 
here, and then President Bush withdrew his name.
    Now, we have Judge Owen, who is the third nominee. I trust 
the distinguished Senator from California to hold a fair 
hearing, something that the two nominees, the two Hispanic 
nominees, two extremely well-qualified Hispanic nominees 
nominated by President Clinton, were never allowed to have 
before this committee. I commend the Senator from California 
and this committee for holding a hearing and not doing as had 
been past practice--we have heard a lot about past practice--
did not follow past practice and said, we are having a hearing. 
I will make up my mind based on what we hear.
    I would hope that other Senators would refrain from the 
kind of name-calling we have heard about people who have 
expressed their views. I have heard a lot of views expressed on 
this both for and against Justice Owen. While I may not have 
liked the tenor and even some of the things I was told in those 
views, I am one who defends the First Amendment.
    Thank you, Madam Chair.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Feinstein. We will now turn to the members of----
    Senator Schumer. Madam Chair, there are a couple of things 
that I would just like to mention here in response to Senator 
Hatch. Could I have a minute or two to do that?
    Senator Feinstein. Well, we have a very long--I think every 
other member probably has something they would like to say. 
What we generally do is turn to the members and then hear. If 
you would not mind withholding, I think it would be 
appreciated.
    Senator Schumer. I will defer to you, Madam Chair. I just 
thought certain things were on the record that were just so 
wrong that they need some refutation.
    Senator Feinstein. I will give you ample time to explain 
later.
    Senator Schumer. Thank you.
    Senator Feinstein. We now have three Members of the 
Congress. I would like to begin with the senior Senator from 
Texas, the Honorable Phil Gramm, and then we will proceed right 
down the line. If you could keep your statement to 5 minutes or 
so, that would be appreciated.

PRESENTATION OF PRISCILIA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR 
 THE FIFTH CIRCUIT BY HON. PHIL GRAMM, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Senator Gramm. Madam Chairman, first, thank you very much. 
I appreciate having an opportunity to be here.
    I am not going to waste your time telling you that 
Priscilla Owen is brilliant, that she is a distinguished 
student of the law. Everybody knows that. If she were a 
simpleton, there would not be all this opposition to her.
    I just want to talk about the Priscilla Owen that I know 
and that the people of my State know. First of all, normally 
when there is an effort to attack somebody, you find one little 
thing about them and you blow it out of all proportion. What is 
so basically disturbing to me about this case is, there is no 
one little thing to blow out of proportion. This attack is 
created out of whole cloth.
    Priscilla Owen is not a political person. Priscilla Owen, 
when she was recruited by people who wanted to have outstanding 
jurists, was probably our State's greatest commercial 
litigator. She was living in River Oaks, which is the richest 
neighborhood in our State. She was extraordinarily successful. 
She was totally non-political. When she was approached about 
running for the court, she was not sure what primary she had 
voted in. The idea that this good woman is some kind of 
political activist or kook is as far from the truth as it can 
be, as you can get from the truth.
    She made an extraordinary decision. She gave up probably 
the most successful commercial litigation practice that any 
female lawyer in my State had or had ever had, moved out of 
River Oaks as a single mom to become a Justice of the Supreme 
Court of Texas.
    Now, I want to address two areas that have been brought up. 
One is Enron. Now, Priscilla is from Houston. Enron was the 
largest and most successful company in my State. So is anybody 
shocked that people who worked for the largest and most 
successful company in Texas, a company domiciled in Houston, 
supported the most successful commercial litigator in the State 
when she ran for the Texas Supreme Court? What is amazing to me 
is that people who worked for Enron contributed only $8,600. 
That should have been the beginning of a message that maybe 
these were not good people.
    [Laughter.]
    Senator Gramm. Now, there has been an accusation that 
somehow, because employees of the largest and most successful, 
at that point, company in my State contributed $8,600, that 
somehow this induced her to make a political ruling. Well, the 
case was pretty simple. The State law sets out a procedure 
whereby inventories are evaluated. The case came before the 
Supreme Court.
    There was a unanimous decision, and even the lawyer, and I 
have got a copy of a letter from Robert Mott, who writes a 
letter and says, ``Justice Owen authored the opinion of a 
unanimous''--this is the lawyer who represented the other side 
of the case--``Justice Owen authored the opinion of a unanimous 
court consisting of both Democrats and Republicans. While my 
client and I disagree with the decision, we were not 
surprised.''
    So you read this propaganda being put out, you would get 
the idea that this person is bought and sold by Enron and made 
a political ruling. You get down to the facts, it is insulting.
    Second point, this abortion business, the Texas legislature 
wrote a law that basically said you have got to notify a parent 
when a minor is having an abortion. Now, to some people, that 
is an extremist position. To most Americans, that is a pretty 
straightforward position. I would have to say, loving many 
members of the legislature as I do, I would still have to say 
that the bill was written by people who were trying to be on 
three sides of a two-sided issue. It is a very poorly written 
law. It imposed very heavy burdens on the court.
    But if you go back and look at Priscilla Owen's rulings, if 
you listen to her, whether you agree or you do not agree with 
her efforts to try to bring logic and reason and precedent to a 
very poorly written law, you have got to be basically struck by 
the fact that this is a person who tried to follow precedent, 
which is what courts are supposed to be about.
    Finally, let me say that if you need evidence that this is 
an extraordinary woman who has done a good job, who is 
basically non-political, let me just give you some. When she 
ran for office, she was endorsed by every major newspaper in 
the State of Texas. There are a lot of newspapers in the State 
of Texas that never endorsed me. Someone who is some kind of 
out-of-the-mainstream person is not endorsed by the Austin 
American Statesman. In fact, most mainstream people are not 
endorsed by the Austin American Statesman.
    [Laughter.]
    Senator Gramm. The last Democrat who sat on the Texas 
Supreme Court is a strong supporter of Priscilla and paid to 
come up here to tell people that. That was Raul Gonzalez. The 
most respected living former Chief Justice, John Hill, came to 
Washington on his own initiative, and he is a Democrat and was 
a Democrat candidate for Governor, was Attorney General, is one 
of the most loved former office holders in our State, came to 
Washington for the specific point of telling people that what 
they were saying about Priscilla Owen is simply not true.
    So I want to urge my colleagues, I know how these things 
work. I have been in this town for 24 years and I have seen a 
lot of organized campaigns and I know that this creates 
tremendous political pressure on both sides of the aisle. But I 
just want to say that if a group of special interests can 
convince people that this good woman is some kind of extremist, 
then these same groups could convince people that Chuck Schumer 
was a conservative or I was a liberal.
    There is no foundation to these charges that have been 
made, and I want to urge you to get the facts, look at them, 
and weigh them from the perspective of not what some advocate 
group says, but in simply looking at the facts. If you will do 
that, I am confident that Priscilla Owen will be confirmed and 
I think it will send a very good signal to America that when 
the facts do not comport to the charges, that the Senate goes 
with the facts, and I thank you, Madam Chairman.
    Senator Feinstein. Thank you very much, Senator Gramm.
    I should tell the witnesses that the light is now on. It is 
set at 5 minutes. Senator Nelson, you are next in line.

  PRESENTATION OF TIMOTHY J. CORRIGAN, NOMINEE TO BE DISTRICT 
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA AND JOSE E. MARTINEZ, 
  NOMINEE TO BE DISTRICT JUDGE FOR THE SOURTHERN DISTRICT OF 
 FLORIDA BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Nelson. Madam Chairman, I am from Florida and I am 
here for two non-controversial nominations.
    [Laughter.]
    Senator Feinstein. Yes. I should tell everybody that we 
have two additional nominees following Justice Owen.
    Chairman Leahy. And I want to thank both Senator Nelson and 
Senator Graham of Florida for working out the situation with 
the White House so that we could have some non-controversial 
nominees up here.
    Senator Nelson. Madam Chairman, if you like, I will be 
merciful and I will take a total of 30 seconds.
    Senator Feinstein. We would appreciate that. Thank you for 
your mercy.
    Senator Nelson. I am here on behalf of Jose Martinez and 
Tim Corrigan. They are non-controversial nominees to the 
District Court, one from the Southern District and one from the 
Middle District. They reason they are non-controversial, and I 
am here on behalf of Bob Graham and myself, and with your 
permission will insert both Senator Graham's and my written 
statements into the record----
    Senator Feinstein. Without objection.
    Senator Nelson [continuing]. They are non-controversial 
because we have a selection process in Florida called a 
Judicial Nominating Commission appointed by distinguished 
members of the bar and prominent citizens of the community that 
screen the applicants. They go through an extensive formal 
written application, extensive interviews. Then the three 
nominees come to Senator Graham and me and we interview them 
and tell the White House if we have an objection, and then the 
White House makes its selection for a District Judge from the 
three.
    So I am happy to be here on behalf of Senator Graham and 
myself to tell you that we enthusiastically support both of 
these nominees and they will be very good additions to the 
Federal bench.
    Thank you, Madam Chair.
    Senator Feinstein. Thank you, Senator Nelson.
    [The prepared statement of Senator Nelson appears as a 
submission for the record.]
    Senator Feinstein. Representative Granger?

PRESENTATION OF PRISCILIA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR 
  THE FIFTH CIRCUIT BY HON. KAY GRANGER, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Representative Granger. Thank you, Madam Chairman. I am 
honored to be here today to support the nomination of Priscilla 
Owen, a highly qualified nominee from my home State of Texas.
    According to the Department of Justice, there are 91 
vacancies in the Federal Courts. That is right, 91. Overall, 
the President has nominated 113 individuals to serve as Federal 
judges, but only 59 of them have been confirmed and 54 nominees 
are still pending. Specifically, the President has nominated 32 
individuals for the Circuit Courts, but only 11 have been 
confirmed. Today, we have a chance to address that problem.
    Today, we can move to fill a vacancy that has been 
classified as a judicial emergency. The time has come to fill 
this seat and fill it with a qualified, sensible nominee like 
Priscilla Owen, Priscilla Owen, who received a unanimous rating 
of ``well qualified,'' the highest rating possible, from the 
American Bar Association.
    Justice Owen's academic achievements are remarkable and her 
professional experience is exemplary. She graduated with honors 
from both Baylor University and Baylor Law School, and 
following graduation, she received, as has been noted here, the 
highest score for that year on the Texas Bar exam.
    Justice Owen practiced commercial litigation for 17 years 
before her election to the Texas Supreme Court in 1994. She is 
well respected for her service to the highest State court. In 
2000, she was endorsed, as has been said, by every major Texas 
newspaper for her successful reelection.
    In her professional career, Justice Owen has worked to 
improve access to legal services to the poor and increased 
funding for these programs. She served as a Texas Supreme Court 
liaison to Statewide committees that strive to offer legal 
services to the poor. Justice Owen also participated in a State 
committee that successfully enacted legislation at the State 
level to significantly increase funding for indigent legal 
services.
    Additionally, Justice Owen organized a group known as 
Family Law 2000. Family Law 2000 warns parents about the 
difficulties children face when parents go through a divorce. 
The program also teaches parents how to address those 
difficulties and how to make the divorce process as painless as 
possible for children.
    Madam Chairman, Justice Owen has proven herself to be the 
right candidate for this position. She has served the State of 
Texas with distinction and I am confident she will serve our 
nation well on the Federal court. In short, Justice Owen is an 
excellent choice for the Fifth U.S. Circuit Court of Appeals, 
and I thank you for the opportunity to speak for her.
    Senator Feinstein. Thank you very much, Representative 
Granger. The chair will excuse the witnesses and will ask 
Justice Owen to come forward.
    Justice Owen, before you sit down, if you would raise your 
right hand and affirm the oath when I complete its reading. Do 
you swear that the testimony you are about to give before the 
committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Justice Owen. I do.
    Senator Feinstein. Please be seated. Thank you very much. I 
have put the clock on 10 minutes, but my intention would be to 
give you as much time as you require. Generally around here, 
people begin by introducing any family members they might wish 
to and we would be delighted to meet any of your family or 
friends you would care to introduce, and then the time is yours 
to say whatever you might like to the committee, and then we 
will proceed with rounds of questions and each member will have 
10 minutes for their questions.

 STATEMENT OF PRISCILLA OWEN, OF TEXAS, NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE FIFTH CIRCUIT

    Justice Owen. Thank you, Madam Chair, Chairman Leahy, 
members of the committee. I do want to, before I introduce my 
family and some of my special guests today, I do want to take 
the opportunity to thank you very much for the hearing today 
and for being able to talk to you about some of the issues that 
have been raised.
    I also want to thank the President, of course, for the 
honor of nominating me to the United States Court of Appeals 
for the Fifth Circuit, and I certainly want to thank Senator 
Gramm and Congresswoman Kay Granger for coming here today and 
for their kind words about me and for introducing me.
    As you mentioned, Madam Chair, Senator Hutchison will be 
here later this morning, but I do want to take this opportunity 
to express my thanks to Senator Hutchison for all that she has 
done and for her friendship and support throughout this 
process.
    I also want to thank--he is not here today, but the Counsel 
to the President, who is also my former colleague, Alberto 
Gonzales, for his support and assistance throughout this 
process.
    Senator Feinstein. I am going to stop you for a minute. 
Hold the mike--this is uni-directional. It has to be directly 
in front of you and you have to talk directly into it or else 
it blurs.
    Justice Owen. Is that better?
    Senator Feinstein. If you could put the mike directly in 
front of you----
    Justice Owen. OK.
    Chairperson Feinstein [continuing]. And then speak 
directly----
    Justice Owen. Is that better?
    Senator Feinstein. That is much better.
    Justice Owen. I would like to introduce my family and some 
folks who are with me today. My sister, Nancy Lacy, is here, 
and my pastor, Jeff Black, who is from my church in Austin.
    Senator Feinstein. If they would stand, we would like to 
acknowledge you.
    Justice Owen. And I would certainly be remiss if I did not 
introduce the former Chief Justice of the Texas Supreme Court 
and former Texas Attorney General John Hill, who is here today. 
I want to thank him for his support and all that he has done.
    Some of my other friends who are here--and I would hope 
that someone would help me with this so I do not miss anyone, 
because it is hard for me to see who all is here--Pat Mizell, 
former judge from Harris County; my special friend Harriett 
Myers, who is a former President of the State Bar of Texas and 
who is now at the White House.
    Who am I missing? Oh, Judge Levi Bitten from Houston, 
Harris County, Texas. I thank you, Levi, for coming. I know 
this is short notice and I appreciate it. Who else is--I am 
sorry, I am not able to recognize--to introduce everybody that 
is here, but thank you all for coming, and everybody who had 
been prepared to come last week and I thank you for changing 
your plans and getting here this week.
    I also wanted to thank, although they could not make it 
this week, my former colleagues, Raul Gonzalez and Justice Jack 
Hightower. Jack Hightower was also a former Congressman from 
Texas, and the 15 past State Bar Presidents, both Democrat and 
Republican, who have signed a letter of support and given that 
to the committee. And then last week, there were a whole bunch 
of folks who came up from Texas to meet with Senators and with 
their staffs and I want to thank them for their effort and the 
time that they took to do that.
    And Madam Chair, Mr. Chairman and members, I also 
appreciate the opportunity to make an opening statement today. 
I know that that is not usually done, but for the reasons that 
have been discussed this morning, I think it is appropriate and 
necessary for me to at least give a brief opening statement.
    Madam Chair, I truly believe that the picture that some 
special interest groups have painted of me is wrong and I very 
much want the opportunity to try to set the record straight. I 
have been very honored to serve as a judge on the Supreme Court 
of Texas and I am extremely humbled that the President has 
nominated me to serve on the U.S. Court of Appeals, United 
States Court of Appeals for the Fifth Circuit. But I have never 
forgotten where I have come--where I came from and my basic 
values.
    After my father died of polio when I was about 10 months 
old, my mother and I went to live with her parents and her 
brother on a farm in South Texas, and my family worked very 
hard for a living then, as they do now. That was a difficult 
time. But my mother eventually remarried to a wonderful man and 
we moved to what I considered the big city, which was Waco. If 
some of you do not know where that is, it is near Crawford.
    [Laughter.]
    Justice Owen. But even though we had moved to Waco, I 
missed my family in South Texas and I spent my summers growing 
up on the farm. And I worked alongside a lot of folks from a 
very different background than mine, but I learned through that 
that all of us have a whole lot in common. It does not really 
matter much where we came from or how we make a living, but it 
does matter that we all respect one another.
    I was fortunate enough to be able to go to Baylor 
University and Baylor Law School and I started practicing law 
24 years ago, when there were not very many women in the 
profession. The law was very good to me. But an opportunity 
came for me to run for the Supreme Court of Texas and I decided 
that I should pursue that opportunity. I believe that people 
like me who had the experience and who had the academic 
credentials and who did not have any kind of ax to grind should 
be willing to step out of private practice and serve the public 
as judges. So I ran for the Supreme Court of Texas and the 
people of Texas elected me in 1994 and reelected me in 2000.
    Although I am a judge, I believe it is very important that 
I try to serve people in other ways, and one of the first 
things I did after I got to the court was to work to increase 
legal aid to the poor and to improve their access to the 
courts. I also, as you have heard today, helped form a group 
called Family Law 2000 that has been concerned about the 
adversarial nature of divorces.
    I have also served on the board of Texas Hearing and 
Service Dogs, which is a charitable organization that provides 
and trains service dogs for paraplegics and quadriplegics and 
for those who are hearing impaired. As I mentioned, I am a 
member of St. Barnabas Episcopal Mission. I teach Sunday School 
there to elementary school children and I serve as head of the 
altar guild.
    But as a judge, I have worked very hard to carry out my 
responsibilities to the people of Texas, and I believe that I 
have done so. There have been four, I would say, basic 
principles that have guided my work as a judge.
    The first is, I always remember that the people that come 
to my court are real people with real problems and real issues 
and that when we decide their cases, we are going to decide 
cases that affect a lot of other real people because of the 
precedent those cases set. So when I decide a case, I must do 
so on the basis of the fair and consistent application of the 
law, and my decisions cannot be based and are not based on 
whether a party is rich or poor or who their lawyer is. My 
decisions are based on the law, whether that is a statute or a 
U.S. Supreme Court decision or a prior decision from my court.
    Second, when it is a statute that is before me, I must 
enforce it as you in the Congress or a State legislature, as 
the case may be, has written it, unless it is unconstitutional. 
I believe my decisions demonstrate that I do respect the 
division between the judicial and the legislative branches of 
government. If I am confirmed, I will do my utmost to apply the 
statutes you have written as you have written them, not as I 
would have written them or others might want me to interpret 
them.
    Third, I must strictly follow U.S. Supreme Court precedent. 
I have taken a solemn oath to do so. I have upheld that oath in 
the past, and if confirmed, I will continue to do so as a Fifth 
Circuit judge.
    Fourth and finally, judges must be independent, both from 
public opinion and from the parties and lawyers who appear 
before them. As you heard, Texas selects its judges through 
partisan elections. That means that judges necessarily preside 
over cases in which people appear before them as parties or 
lawyers when they have contributed to campaigns. That is a 
system that several other States have, but I do not believe it 
is the best system. I have long advocated that we change the 
way we select judges in Texas. I have advocated that we 
essentially follow an election--a retention election after the 
judge is initially appointed.
    In the meantime, I have led reforms in the judicial 
campaign area. When I first ran for the Supreme Court of Texas, 
I voluntarily imposed limits on my campaign contributions when 
there were not any laws at all imposing any kind of limits. And 
when I ran for reelection in 2000, I returned over one-third of 
my contributions when I did not receive a major party opponent.
    In closing, Madam Chair, Mr. Chairman, members of the 
committee, I recognize the tremendous responsibility that 
judges have and I have tried the very best I could for the last 
7 years to carefully and faithfully execute those 
responsibilities. Those who know my record the best have 
written to you in my support and expressed their judgment that 
I have been a fair and impartial judge on the Supreme Court of 
Texas.
    I thank you for allowing me to make this statement and I 
truly welcome the opportunity to answer all of your questions 
today. Thank you very much.
    Senator Feinstein. Thank you very much.
    I note that Senator Hutchison has just arrived. If she 
would take her place, and while she is, I would like to spell 
out the early bird order. It is Feinstein, Hatch, Leahy, 
DeWine, Kennedy, Sessions, Feingold, McConnell, Schumer, 
Brownback, Durbin, and Cantwell.
    Senator Hutchison, welcome. Your colleagues have all 
testified, but as you told me, you were going to be a little 
late and we are delighted to have you here. If you would like 
to make a statement, if you could possibly confine it to 5 
minutes, we would be appreciative.

PRESENTATION OF PRISCILIA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR 
THE FIFTH CIRCUIT BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR 
                    FROM THE STATE OF TEXAS

    Senator Hutchison. Thank you very much, Senator Feinstein, 
and thanks to you and Senator Leahy for allowing me to make 
this statement a little late. I got the earliest flight out of 
Dallas this morning and it just arrived, so I do thank you for 
that.
    Madam Chairman, I am here in total and full support of my 
friend, Justice Priscilla Owen. She is a 7-year veteran on the 
Supreme Court of Texas. I think you know her exemplary career, 
starting from when she graduated cum laude from Baylor Law 
School in 1977. Justice Owen also made the highest grade on the 
State Bar exam that year. I think her academic credentials are 
unmatched.
    She also has the experience to be a good Circuit Court of 
Appeals judge, having been reelected to the Supreme Court with 
84 percent of the vote in Texas. She was endorsed by every 
major newspaper in Texas during her successful reelection bid.
    I think she has the best qualifications of anyone that I 
have ever seen come before this committee for a Court of 
Appeals appointment. The Dallas Morning News called her record 
one of accomplishment and integrity. The Houston Chronicle 
wrote that she has the proper balance of judicial experience, 
solid legal scholarship, and real world know-how.
    But despite the fact that she is a well-respected judge who 
has received high praise, her nomination has been targeted by 
special interest groups. Justice Owen's views have been 
mischaracterized and her opinions distorted. Today, this 
committee and Justice Owen have an opportunity to set the 
record straight.
    One particular area of misinformation concerns Enron. In 
Texas, we have Statewide elections for judges. Whether any of 
us approve of that system or not, it is the current law in 
Texas and, as we all know, a person has to run a campaign and 
raise the funds to do that. Priscilla Owen has actually been a 
leader in trying to reform the way judges are elected in our 
State, having come out solidly against such elections.
    Like six other Justices on the nine-member court, Justice 
Owen has received Enron contributions in her election bids. She 
not only received legitimate contributions from employees and 
the employee PAC--she did not take corporate contributions--but 
at that time, Enron was one of our State's largest employers 
and its employees were active. They were active politically, 
they were active civically, and they have been major charitable 
contributors in Texas and especially in Houston. So it should 
be understandable that they did make political contributions 
which were absolutely legitimate. She only took $8,800 in Enron 
contributions out of a total of $1.2 million raised for her 
bid. Her opponent actually raised $1.5 million.
    During her 2000 campaign, Priscilla Owen imposed voluntary 
limits on herself, which included taking no more than $5,000 
per individual and spouse, no more than $30,000 per law firm, 
and over half her total contributions were from non-lawyers. In 
fact, after she started the trend of voluntary limits, the 
State actually came in and made laws similar to her voluntary 
limits that she had led the way to make. After she did not have 
a major opponent in 2000, she returned over a third of her 
remaining contributions to her contributors.
    I want to read the words of our former State Supreme Court 
Chief Justice John L. Hill, who is a Democrat and was also 
elected Attorney General of Texas as a Democrat, denouncing the 
mischaracterization of Priscilla Owen's record by outside 
special interest groups: ``Their attacks on Justice Owen, in 
particular, are breathtakingly dishonest, ignoring her long-
held commitment to reform and grossly distorting her rulings. 
Tellingly, the groups made no effort to assess whether her 
decisions are legally sound. I know Texas politics and can 
clearly say these assaults on Justice Owen's record are false, 
misleading, and deliberate distortions.''
    As you know, Justice Owen enjoys bipartisan support and the 
ABA Standing Committee on the Federal Judiciary has unanimously 
voted Justice Owen ``well qualified.''
    So, Madam Chairman, I thank you for allowing me to sit in 
full support of my friend, Justice Priscilla Owen, a member of 
the Texas Supreme Court with an outstanding judicial record.
    Senator Feinstein. Thank you, Senator, for the excellent 
statement. We appreciate it very much and you are welcome to 
stay or be excused, whatever you wish.
    I am going to proceed and try to do two questions in this 
round, Justice Owen. The first relates to the Searcy case and 
the second has to do with comments that were made.
    My understanding of the Searcy case is this. Willie Searcy 
was a 14-year-old in a Ford pickup with a seat belt when 
another car smashed into the pickup and the seat belt severed. 
As a result, he became a quadriplegic. He was on a respirator. 
The case went to court. He received a $30 million judgment, 
which was then reduced to a $20 million judgment, and the case 
came up on appeal.
    The young man was in very difficult circumstances. He was 
on a respirator. I understand that his family could only pay 
for a nurse through 4 a.m. and then there was a quiet hour with 
nobody attending him, and then the parents attended him from 5 
a.m. in the morning.
    Well, he had been in there from the age of 14 to 22 and 
while the year and a half dragged by that you were supposed to 
be writing that opinion, one morning, the respirator went out 
and he died. You wrote an opinion and the opinion you wrote 
said that the appeal should not be granted on the basis of 
faulty venue, that it was brought in the wrong venue, which had 
never been argued in either of the lower courts that handled 
the case.
    This was a very surprising case for me to read about you 
because I thought you, and hope I am right, were a person with 
a great deal of compassion, and yet here was someone that had 
two courts sustaining a verdict which could have gotten him the 
nursing help that he needed to sustain his life. But during the 
delay, he died, and there are those in the writings that have 
been presented that have said that the delay was unnecessary, a 
year and a half delay was unnecessary to write that opinion.
    Could you respond to that, and could you also tell us the 
average length of time that you take to write an opinion like 
this?
    Justice Owen. Senator, I appreciate that question because I 
do--would like the opportunity to respond, since there has been 
so much in the press that is simply wrong about that case.
    First of all, we remanded the case to the lower court and 
it was 3 years later that Mr. Searcy, unfortunately, passed 
away. The court--the case had been in the lower court system 
for quite a while before it got to our court and it was over a 
year after the accident before the lawsuit was even filed in 
the trial court. So he did not pass away while the case was 
pending in my court.
    What--and I also want to specifically address the 
allegation, I guess you would say, not from you, Senator, but 
that has been printed in the press, that the issue of venue was 
never raised in the lower courts or in my court, which is just 
ludicrous, frankly. I would be happy to produce the briefs all 
the way up in our court. Venue was argued in the trial court. 
It was briefed in the Court of Appeals. The Court of Appeals 
decision wrote on venue. Venue was in the briefs prominently in 
our court. It was definitely briefed.
    And Senator, this is kind of a legal technical explanation, 
but I want to try to explain it as best I can. There were no 
rendition points in that case. In other words, Ford was not 
saying that, ``We win as a matter of law.'' They were saying, 
``We want a new trial,'' and under those circumstances, our 
court had to address the venue issue. We had no choice, because 
there is a statute in Texas that says if the case is filed in 
the wrong trial court, then reversal is mandatory. It is not 
discretionary, it is mandatory.
    And what happened in this case, the Ford vehicle, that is 
the pickup, was purchased in Dallas. The Miles, and Mr. Searcy, 
his family, lived in Dallas. The accident occurred in Dallas. 
Everybody agreed that all the operative facts centered around 
Dallas, Texas. Yet the plaintiff's lawyer decided to file in 
Rusk County in Texarkana, which is, I think, 180 or 200 miles 
northeast of Dallas in a county that had absolutely nothing to 
do with the vehicle or the accident. Everybody stipulated that. 
The only basis for filing in that other county a long way away 
from Dallas was that there was a Ford dealership there, as I am 
sure there is a Ford dealership in almost every county in 
Texas.
    And we looked at existing precedent in Texas, my court did, 
and we said, Ford does not own the dealership. Under the 
statute, again, applying our prior Supreme Court precedent and 
other Courts of Appeals decision, we said venue was in the 
wrong county. This was essentially a forum-shopping issue and 
we were required by the statute, having concluded that venue 
was in error, to remand to the trial court, which we did.
    Once it got back to the trial court, the trial court 
granted a partial summary judgment against Mr. Searcy and his 
family and that went up on interlocutory appeal. The Court of 
Appeals considered that and the case came back to our court. We 
denied the petition. It went back down to the trial court. And 
it was at that point, 3 years after decision remanding it to 
the trial court based on the venue ruling, that Mr. Searcy 
passed away. And to this date, there has been no, it is my 
understanding, trial to adjudicate whether Ford was liable in 
the first instance.
    Senator Feinstein. Thank you. Since the distinguished 
ranking member and my friend raised Justice Gonzales, I thought 
I would get his actual statement and read it in some context, 
because this relates around the Jane Doe cases, and this is 
where I think there has developed a feeling among some that you 
are, in a sense, a judicial activist, that you went beyond the 
law as the law was written in Texas with respect to 
notification in asking for additional things to be presented 
that the law itself and its three prongs on notification did 
not require.
    But let me just quote this. ``To the contrary, every member 
of this court agrees that the duty of a judge is to follow the 
law as written by the legislature. This case is no different.'' 
And then it goes on to say, ``Our role as judges requires we 
put aside our own personal views of what we might like to see 
enacted and instead do our best to discern what the legislature 
actually intended. We take the words of the statute as the 
surest guide to legislative intent. Once we discern the 
legislature's intent, we must put it into effect, even if we 
ourselves might have made different policy choices.''
    And then it goes on to say, ``The dissenting opinions, of 
which you were one in this case'', suggest that the exceptions 
to the general rule of notification should be very rare and 
require a high standard of proof. I respectfully submit that 
these are policy decisions for the legislature and I find 
nothing in this statute to directly show that the legislature 
intended such a narrow construction. As the court demonstrates, 
the legislature certainly could have written Section 33.033(i) 
to make it harder to bypass a 366 parent's right to be involved 
in decisions affecting their daughters, but it did not. 
Likewise, part of the statute's legislative history directly 
contradicts the suggestion that the legislature intended 
bypasses to be very rare. Thus, to construe the Parental 
Notification Act so narrowly as to eliminate bypasses or to 
create hurdles that simply are not to be found in the words of 
the statute would be an unconscionable act of judicial 
activism.''
    And, of course, in reading your opinions in these Doe 
cases, you did, in fact, insist on certain tests that were not 
present in the statute. Could you speak to that, please?
    Justice Owen. Well, Senator, let me start in reverse order 
with some of the things in your question. First of all, this 
was--this was the third in a series, or down the line in a 
series of Doe cases. The first Doe case that came to the court 
was, of course, Doe I, and in that opinion, I tried my very 
best to give effect to legislative intent, and Senator, I 
honestly believe that I did not go outside out of what the 
legislature intended.
    I looked at the words they chose. The legislature said that 
a girl who is under 18 who wants to have an abortion without 
notifying one of her parents may get a judicial bypass if one 
of three prongs are met, and the language that they chose to 
put in the statute for the judicial bypass was language that 
was almost verbatim, if not verbatim, taken out of a U.S. 
Supreme Court opinion. The opinion had said--had blessed a 
judicial bypass provision in another, although it was a consent 
statute.
    And so I looked at the context in which the legislature was 
deciding what to write and why and these words were not written 
in a vacuum. They had, to me, they had meaning within the 
context of all these U.S. Supreme Court cases.
    So I looked at the U.S. Supreme Court decisions in this 
area, primarily Casey and Akron I--excuse me, the second 
decision in City of Akron, and looked at what the U.S. Supreme 
Court had said about what it is that States may have an 
interest in information being supplied about the abortion 
decision. So everything in my Doe I opinion tracked language 
from the U.S. Supreme Court's decision specifically, as I said.
    Senator Feinstein. I am going to have to stop you mid-
sentence because we have 3 minutes to get to a vote. So I am 
going to recess the committee and we will take up just where we 
left off.
    Justice Owen. Thank you, Madam Chair.
    Senator Feinstein. Thank you.
    [Recess from 11:18 a.m. to 11:37 a.m.]
    Senator Feinstein. Justice Owen, I interrupted you right in 
the middle of a response. Let me just quickly, I think, better 
state the question.
    The issue here is not what some hypothetical State could 
impose but what, in fact, the State of Texas did enact into 
legislation, and while various Supreme Court cases may have 
indicated that requiring additional steps or information might 
be permissible, the Texas legislature, as Justice Gonzalez 
said, could have written that section, Section 33.033(i), to 
make it harder to bypass a patient's [sic] right to be involved 
in decisions affecting their daughters. But the point is it did 
not.
    For instance, in one Jane Doe case, you suggested a minor 
must show she understands the impact the procedure will have on 
the fetus. I understand you point to the Casey case in support 
of this conclusion, but that case never said that such a 
requirement is mandatory.
    So what in the Texas statute itself would justify such an 
expansion of this statute?
    Justice Owen. Well, Senator Feinstein, again, the words 
that the legislature used on the first prong were mature and 
sufficiently well informed, and they, in fact, took the entire 
bypass straight out of U.S. Supreme Court cases. If you look at 
the backdrop against which this whole statute was enacted, it 
seemed to me, and the majority of the court agreed on this, it 
is in their opinion, that they were looking at all of the U.S. 
Supreme Court precedent on this point, and the words 
``sufficiently well informed'' connoted to me, at least, that 
they wanted us to look at what the U.S. Supreme Court has said 
is relevant to being fully informed.
    I think the Texas legislature intended, as explained in 
another Supreme Court case, it is H.L. v--and I cannot remember 
the second name of it--that they realize that in these 
situations, there was not going to be a parent involved, that 
neither parent was going to be notified, that an adult standing 
in the shoes of the parent was not going to be able to give 
mature advice and information to this minor--again, we are 
talking about minors--and that the U.S. Supreme Court at one 
point in its opinion said the courts and the States are 
entitled to presume that parents would give this kind of 
information and counseling, but, of course, that is not going 
to happen in these situations.
    So again, it seemed to me that the Texas legislature, when 
they said fully, or, excuse me, sufficiently informed, wanted 
us to look at what the U.S. Supreme Court had said States may 
encourage women to know about the abortion decision to be 
informed, to make an informed choice. And so I looked at, as I 
have indicated, primarily Casey and the second decision in City 
of Akron to see, what has the U.S. Supreme Court said about the 
words ``informed''? When you go to those cases, I lifted 
directly out of the cases the issues that the Supreme Court had 
identified that they thought it was OK for States to look at in 
making this decision.
    It seemed to me, again, you are talking about a minor here, 
that these legislatures were concerned that mothers and fathers 
would want their daughters to make this decision with as much 
information as they could have constitutionally, since there 
was not going to be an adult involved in the process, only the 
courts, and that that is what the legislature intended, within 
constitutional bounds.
    Senator Feinstein. My time is up.
    Senator Hatch?
    Senator Hatch. Thank you, Madam Chairman.
    Justice Owen, I will ask you more on this later, but let me 
make sure that everybody understands some of the answers that 
you have just given on the Jane Doe cases.
    When you argued in Jane Doe I that for a minor to be 
``sufficiently well informed,'' a minor would need to 
``demonstrate that she has sought and obtained meaningful 
counseling from a qualified source about the emotional and 
psychological impact,'' and so on. This was not your personal 
standard that you were imposing, but an application of the U.S. 
Supreme Court standard, is that not correct?
    Justice Owen. Yes, Senator Hatch, that is correct. That 
came out of one of the U.S. Supreme Court decisions.
    Senator Hatch. Can we presume that when the Justices of the 
Supreme Court, the U.S. Supreme Court, established these 
standards, that they had before them the best available medical 
and psychological information?
    Justice Owen. Yes, sir, I agree with that.
    Senator Hatch. It just seems to me that your detractors are 
seeking, and I am not talking about people up here who have a 
right to ask any questions they want, but your detractors on 
the outside are seeking to retry Casey and every other Supreme 
Court case by attacking you. But what you were doing was 
applying Roe v. Wade and its progeny, am I right about that?
    Justice Owen. Yes, Senator. I have quoted Roe v. Wade as 
modified by Casey and I clearly recognized throughout the 
opinion that that is the law of the land and I was trying 
faithfully to follow it. And I also pointed out in the course 
of, I think it was the Jane Doe I opinion, that if we applied 
the rationale of those cases, that would probably mean some of 
our family law statutes were unconstitutional in this context.
    Senator Hatch. Well, now, much has been made of your 
opinion that for a minor to be sufficiently informed for 
purposes of the judicial bypass, she must ``exhibit an 
awareness that there are issues, including religious ones, 
surrounding the abortion decision.'' I have to tell you that 
nothing panics your detractors, that is, these liberal special 
interest groups, more than a judge suggesting that religion 
exists. I think they think that it is crazy talk.
    To be clear, though, your language that a minor should 
``indicate to the court that she is aware of and has considered 
that there are philosophic, social, moral, and religious 
arguments that can be brought to bear when considering 
abortion'' is nothing but a faithful--maybe I should not use 
that term--the mere application of Sandra Day O'Connor's 
language in the Casey decision, is that not right?
    Justice Owen. Yes, Senator. It was in Casey. I believe it 
was also in Akron II, and the specific word ``religious 
beliefs'' or ``religion'' was included in H.L. v. Matheson.
    Senator Hatch. You did not wake up one morning and suddenly 
decide you were going to impose a standard that was all your 
own, did you?
    Justice Owen. No, Senator. Frankly, when this statute hit 
the court, we were all a little caught unawares and I went 
straight to the U.S.--I looked at the history of it and went 
straight to the U.S. Supreme Court decisions and started to 
reading to see what had they said about States' ability to see 
that a minor is sufficiently informed in making the choice.
    Senator Hatch. It would seem to me that your detractors 
would like you to cherry pick among Supreme Court cases or 
precedents that you should follow and Supreme Court precedents 
you should ignore. Of course, that is typical of how some of 
them actually read the Constitution.
    Now, let me ask you this. In your decision in Ford Motor 
Company v. Miles, is it not true that a bipartisan majority of 
the Texas Supreme Court held that lawsuit, which arose out of a 
car accident, was filed in the wrong county and, therefore, 
remanded for transfer and a new trial in a different county?
    Justice Owen. That is correct, Senator.
    Senator Hatch. The decision did not eliminate the 
plaintiff's ability to sue for the injuries they had suffered. 
It simply ordered that the case be reassigned to the 
appropriate venue, is that correct?
    Justice Owen. That is correct, Senator.
    Senator Hatch. OK. I just wanted to make that clear.
    Justice Owen, I would like to ask you further about your 
decisions concerning the Texas statute that regulates the 
ability of minors to obtain abortions without telling their 
parents in certain circumstances. First, I want to make sure 
that we all understand exactly what that statute does.
    As I understand it, the statute codifies the right of 
minors to obtain abortions without permission from their 
parents, but requires that one of the young woman's parents 
simply be notified of their daughter's decision 48 hours before 
the procedure is performed, is that correct?
    Justice Owen. That is correct, Senator. It is not a consent 
statute. It is a notification statute.
    Senator Hatch. I see. In addition, the statute provides for 
what is called a judicial bypass, which means that a judge can 
allow the abortion to go forward without parental notification 
provided that the girl ask the trial judge to do so and proves 
with testimony or other evidence that she meets one of the 
stated reasons for such a bypass, is that correct?
    Justice Owen. That is correct.
    Senator Hatch. Now, Justice Owen, do you know how many 
cases have been filed since that statute went into effect by 
girls seeking to obtain abortions without notifying their 
parents?
    Justice Owen. We do not know the precise number because 
they are confidential and some--we do know that there have at 
least been 650-some-odd since the statute went into effect in 
2000, and the reason we know that is because the statute 
provides that the court can appoint counsel or appoint guardian 
ad litems for these girls at State expense, and so we know that 
that number of reimbursements in that number of cases have been 
applied for, but we also know that there are quite a number of 
lawyers that do these cases for free on a pro bono basis, so we 
do not know the exact number, but we do know at least that many 
bypass procedures.
    Senator Hatch. And how many of these cases reached the 
Texas Supreme Court?
    Justice Owen. Ten different minors have come to our court 
in 12 different cases. Jane Doe in Jane Doe IV came back after 
the remand.
    Senator Hatch. I see. And what happened to the rest of the 
cases, of the 650?
    Justice Owen. Well, the first two cases that came, Jane Doe 
and Jane Doe II, a majority of the court, including me, 
believed that she, based on the evidence, that she had not met 
the statutory standards. But because our court had never 
written on either the mature and sufficiently well informed 
prong of the statute or the best interest statute, that she did 
not--and those were sort of amorphous concepts standing alone--
that she and her lawyer did not really know what standard they 
were trying to meet. So in the interest of justice, we remanded 
those cases to the trial court for another hearing.
    In Jane Doe III, that case was remanded. We do not know 
what happened to Jane Doe III. We just do not know because of 
the confidentiality. Jane Doe IV, the court affirmed the two 
lower courts and denied the bypass.
    And let me say, I think it has been said, but let me make 
clear that none of these cases ever get to my court unless both 
the trial court and the Court of Appeals have denied the 
bypass.
    Senator Hatch. So I am correct in saying that the Texas 
Supreme Court hears such cases only after a trial court has 
heard them--that is the court that actually hears the testimony 
and the evidence--and that trial court denies the bypass, and 
then the Court of Appeals reviews the trial court decision and 
agrees that the bypass should be denied?
    Justice Owen. Or if they disagree and grant the bypass, 
that is the end of it. There are no further appeals. It would 
not come to my court.
    Senator Hatch. Cases reaching the Texas Supreme Court are 
the tough cases because there have only been a few of them that 
have----
    Justice Owen. Well, yes, Senator, with this caveat, caveat 
or however you pronounce it. We have had some cases that came 
to the court that--there were five of them, actually--where the 
court affirmed the lower court's judgment without opinion, and 
it takes under our rules at least six judges to agree to do 
that, and if any judge had dissented and noted their dissent 
publicly, then we would have reflected that.
    I cannot get into the deliberations on our court or 
disclose what was at issue in those cases, but I think it is a 
fair inference from those circumstances, given the number of 
opinions written in all those other cases, that these were not 
close cases in those five instances.
    Senator Hatch. So these are the more difficult cases where 
evidence of maturity, best interests, or abuse happens to be 
not very clear, is that right?
    Justice Owen. Yes, Senator.
    Senator Hatch. And where the precise definition of words 
used by the Texas legislature has to be determined?
    Justice Owen. That was the--we had never, obviously, 
construed the statute before and it needed to be construed by 
my court to give guidance to the trial courts and the Courts of 
Appeals.
    Senator Hatch. Of course, some of the abortion rights 
advocacy groups would prefer that you simply always rule in 
favor of bypassing parents rather than look at the words of the 
statute. I have got to say, I think the method of your 
decisions, your principled examination of legislative intent is 
exactly the kind of judging that most Americans really want 
from their judges and expect.
    Now, the judicial bypass law in Texas has been in effect 
for a relatively short time, am I right about that?
    Justice Owen. Senator, it came into effect in January of 
2000.
    Senator Hatch. OK, so it has already been a year or so. 
Therefore, disputes arising out of that law are cases of first 
impression, meaning that the court was deciding the proper 
standards that the Texas legislature intended for the first 
time, is that right?
    Justice Owen. Yes, Senator.
    Senator Hatch. Justice Owen, some of the liberal interest 
group lobbyists that oppose your nomination have accused you of 
lacking sympathy for the girls whose cases made it all the way 
up to the Supreme Court for review. Some of those groups want 
the public to believe that your decisions reflect an opposition 
to abortion itself rather than a thoughtful and principled 
approach to applying the law as the legislature intended it or 
meant it.
    I know that these accusations are false, but I have 
examined your record and your opinions, as I have done for a 
huge percentage of the judges sitting on the Federal bench 
today, and I have concluded that some of these groups have set 
out to ruin your reputation and they have simply gotten it 
wrong. But they do not always take my word for it, 
unfortunately, so let me just ask you.
    When you were writing your judicial opinions in the Jane 
Doe cases, were you motivated simply by a desire to achieve a 
particular public policy result or was your objective to 
ascertain and enforce the intent of the Texas legislature?
    Justice Owen. No, my personal beliefs do not enter into any 
of my decisions. They certainly did not enter into these 
decisions. We had a statute in front of us that, again, was 
enacted after long debate in the Texas legislature against a 
background--backdrop of a series of U.S. Supreme Court 
decisions that kind of mapped out some of the parameters of 
this area.
    Senator Hatch. I would like to pursue this further, but I 
just noticed the red light and my time is up.
    Senator Feinstein. Before recognizing Senator Leahy, after 
Senator Leahy, Senators DeWine, Kennedy, Sessions, it is my 
understanding, Senator McConnell, that you wanted to move up in 
that order. I will leave it up to you to work out with someone.
    Senator DeWine. That will be fine with me.
    Senator Feinstein. All right, excellent. Then we will move 
Senator McConnell up in place of Senator DeWine and DeWine will 
go into McConnell's place.
    Senator Leahy?
    Chairman Leahy. Thank you, Madam Chair.
    Justice Owen, it is good to have you here. I am glad you 
were able to have this hearing, and as I noted before, to cut 
through the basic rhetoric, when the other party was in charge 
of this committee, Jorge Rangel and Enrique Moreno, who had 
been nominated by President Clinton for this seat, were never 
even allowed to have a hearing. I mention that because as I 
hear some of the comments being made on my comment line by the 
White House supporters about you, they were probably unaware of 
that.
    And also, to forestall some of the other comments that the 
White House is trying to get out on your behalf, we did notify 
the White House of the various cases I was going to ask you 
about, about a week ago, is that correct?
    Justice Owen. I am sorry?
    Chairman Leahy. About a week ago, we gave the White House a 
heads up of the type of cases I was going to ask you about, is 
that correct?
    Justice Owen. I really do not know, Senator Leahy.
    Chairman Leahy. Well, then that is--you should talk to 
them, because we did.
    In F.M. Properties v. City of Austin, let me go into that a 
bit because you have developed a reputation for opinions which, 
if not every time, most of the time favor big business 
interests, and this is a case that does not change that 
reputation. A large majority of the Texas Supreme Court in F.M. 
Properties v. City of Austin found a section of the Texas Water 
Code unconstitutional because it gave too much legislative 
power to corporate landowners with large tracts of land.
    As a majority of your court saw it, and I think very 
convincingly explained their legal reasoning for it, the code 
section simply went too far and allowed these large landowners 
to regulate themselves, even though that would affect their 
financial interest, even though it may adversely affect the 
environment of those around them, so the fox is guarding the 
hen house. The court said, and I am quoting, that your dissent 
in that case was nothing more than inflammatory rhetoric. The 
six justices in the majority explained why your legal 
objections were mistaken. They said that no matter what the 
State legislature had the power to do on its own, it was simply 
unconstitutional to give the power of the people to a 
landowner.
    Now, could you tell me why you thought it was proper for 
the legislature to grant these large corporate landowners the 
power to regulate themselves, because under this, as I 
understand it, it would limit government review. There would be 
very little opportunity for citizens to challenge the 
regulations. There is clear financial interests in those who 
would be regulating themselves. If that is not giving up too 
much to a private interest, what would be?
    Justice Owen. Senator Leahy, I know that some have tried to 
characterize this case as involving a fight between the city of 
Austin and big business, but in all honesty, when you get down 
and look at it, what this was really a fight about was the 
State of Texas versus the city of Austin, and when this case 
hit our court, the then-Attorney General of Texas, Dan Morales, 
intervened in the case and filed a long, thorough brief in 
support of the constitutionality of the State statute.
    There had been a longstanding rivalry between the city of 
Austin and the State of Texas over Austin's trying to regulate 
within its extraterritorial jurisdiction, and the legislature 
came back and said, we want State regulations to apply in your 
ETJ, which they could not--that is a technical term, but it was 
not technically part of the city of Austin, but it was their 
ETJ. The State said, look, we gave you the ability to have an 
ETJ in the first place and we want State regulations, not city 
regulations, to apply in that area.
    And this was not an unregulated area. The entire area was 
subject to all of the laws of the Texas Natural Resources Code, 
all of the other water laws and conservation laws that apply to 
every piece of land in the State of Texas, so it was not 
unregulated.
    Chairman Leahy. Justice Owen, that is not really the way 
the majority saw it. They did refer to your opinion as being 
inflammatory rhetoric, your dissent. There was very limited 
ability for the citizens to question this. Frankly, if you 
follow your dissent, one could argue that the problems on Wall 
Street right now, there would be no problem in delegating the 
power to the corporations and the accountants to regulate 
themselves, no matter what effect it might have on ordinary 
citizens, no matter the lack of regulation.
    Let me ask you about another one, Reade v. Scott Fetzer. 
The Texas Supreme Court, by a vote of six to three, held a 
vacuum cleaner company liable when one of its dealers raped a 
customer after an in-home demonstration required by the 
company. Now, a jury of Texans found the company should be held 
accountable. The Supreme Court affirmed. The Texas Appellate 
Court had agreed first. They said the company had a duty to 
exercise reasonable control over their vacuum sales 
representatives because in this case it required in-home sales. 
In this case, you had a person who had enough in his record to 
raise warning flags to the company.
    But you said this was wrong, if I understand the dissent 
that you joined, that it is a wrong view of corporate 
responsibility because it would impose liability on all in-home 
vendors, as if the outcome might provide too much justice and 
compensation of future victims, even though this case was a 
pretty blatant one. Do you think that is a fair basis to shield 
corporations from the actions of their agents?
    Justice Owen. Senator Leahy----
    Chairman Leahy. It seems to be going against basic hornbook 
tort law.
    Justice Owen. I was trying to follow basic hornbook tort 
law and I think this case was very sympathetic. There were 
terrible facts in the sense that this woman was raped in her 
home. But basic hornbook law is that when there are independent 
contractors involved, that you do not have respondeat superior 
liability, and here, we had not just one independent contractor 
but we had two layers of independent contractors.
    The Kirby Vacuum Cleaner Company at the national level 
hired or engaged distributors--and this was all stipulated, 
that they were independent contractors. This was not my view. 
It was the parties agreed to this. There was no issue about it, 
that Kirby's distributors were independent contractors, and 
that Kirby, in turn, contracted with other independent 
contractors to go door-to-door and make the sales. And under 
hornbook contract law, you are typically not liable for the 
acts of your independent contractors.
    Chairman Leahy. But the Texas trial court disagreed with 
you. The Texas Appellate Court disagreed with you. The Texas 
Supreme Court disagreed with you. I mention this only because I 
find so many of these things where you seem to be outside even 
the mainstream of what is arguably a very conservative Supreme 
Court, the Texas Supreme Court.
    I saw this in the City of Garland v. Dallas Morning News on 
allowing--you seem to be wanting to write in such a large 
exception to any kind of public disclosure that anybody could 
hide anything from public disclosure. That is why, and I will 
submit a number of questions for the record because I 
understand that time is running out, but I will submit a number 
of questions on these where you seem to be outside of the 
mainstream even of your own court, the other area being the 
area of campaign contributions.
    I realize that judges are allowed to raise campaign 
contributions. You have raised over $1 million for your 1994 
and 2000 election campaigns from law firms, lawyers, litigants, 
including Enron and Halliburton, many of whom regularly appear 
or have interest before your court. It appears that many of the 
cases in which your past contributors were parties, you did not 
disqualify or recuse yourself. In our State, we would see this 
as a major conflict of interest. Apparently, it is not in 
Texas.
    So I would just ask you this. While you do not have any 
duty to disclose contributions, did you make a full disclosure 
to the parties of campaign contributions that you received 
related to those who may have interest in the case?
    Justice Owen. Senator Leahy, all of my contributions are a 
matter of public record. For the 2000 election, they are all 
available on the Internet. Anybody--I had 3,000 of them, of 
individual contributors in my 1994 campaign and they are all--
--
    Chairman Leahy. But some of these are fairly significant. I 
mean, the Enron ones, for example, were significant, and yet 
you, shortly after receiving them, were hearing a case. In 
1994, you got 21 percent of your total campaign funds from non-
law firm businesses, including individuals and Political Action 
Committees of Enron, Halliburton, Shell, and Kinetic.
    My question is, whether required or not, did you ever have 
a case, one where you recused yourself because of campaign 
contributions, first. Did you?
    Justice Owen. No.
    Chairman Leahy. Did you ever have a case where you noted, 
aside from whatever might be on a website, that you noted to 
the parties involved that you had had significant contributions 
from one of the parties?
    Justice Owen. Well, Senator, again, they are a matter of 
public record, and everybody----
    Chairman Leahy. I know, but that is an easy----
    Justice Owen. And no one is ever asking----
    Chairman Leahy. I am not trying to do a trick question, 
Justice Owen. It is a simple yes or no. Did you ever have a 
case where you went out of your way to make such a disclosure 
to the parties? And I would note that you are not required to. 
I am just asking, did you ever?
    Justice Owen. No, Senator. No one has ever asked me to 
recuse because of campaign contributions.
    Chairman Leahy. No, did you ever--no. That is not my 
question. I posit this by saying, in fairness to you, you are 
not required to do this, but did you ever have a case where you 
had had significant contributions from one of the parties 
involved where you noted that fact to the litigants when they 
were before you?
    Justice Owen. No, Senator, I did not.
    Chairman Leahy. Thank you. Thank you, Madam Chair.
    Senator Feinstein. Thank you----
    Justice Owen. Mr. Leahy----
    Senator Hatch. Could the witness answer some of the other 
questions that Senator Leahy raised? He cut her off----
    Chairman Leahy. I wonder, Madam Chair, I tried to--I do not 
think I cut her off, but I----
    Senator Hatch. I felt like----
    Chairman Leahy.--I will leave that to the chair to 
determine. I will have a number of questions for the record.
    Senator Hatch. If she would like to say more, I would like 
her to have the opportunity.
    Senator Feinstein. Let me just ask, do you have anything 
else you would like to say on that----
    Justice Owen. I would like to make--there was a lot in 
there, but there are two points I would like to make quickly.
    Senator Feinstein. Please.
    Justice Owen. It is particularly about the comment that I 
am out of the mainstream on my own court. We have had 890-
something decisions, or close to 900 that I have participated 
in since I have been on the court and I have been in the 
dissent apparently--I have not counted it myself, but according 
to some of my opposition, 86 times, which means I have been in 
the dissent on my court less than 10 percent of the time.
    Chairman Leahy. A lot of those cases, though, were 
unanimous, were they not, and there were no significant 
dissents?
    Senator Hatch. So what?
    Justice Owen. I do not believe so, Senator Leahy.
    Chairman Leahy. OK.
    Justice Owen. We split up quite frequently on my court.
    The second point I want--well, I can deal with F.M. 
Properties, I guess, in detail, but they were subject to a lot 
of regulation by the State, just like every landowner in the 
State of Texas, and so I would like the opportunity at some 
point to fully address all of that, if not today in the 
hearing, certainly in writing.
    Chairman Leahy. Please understand that on the time, you 
have the opportunity, and I am sure that Senator Feinstein 
would agree with this, you have an opportunity to expand on any 
of your answers, and nobody wants to cut you off. If you have 
an area where you feel you did not have an opportunity to fully 
answer, of course you can add that for the record, and I will 
be submitting other questions. And, of course, if you feel that 
they are not clear and you need more information, we will do 
that, too.
    Justice Owen. I appreciate that.
    Chairman Leahy. Nobody is trying--as I said at the 
beginning, unlike Senator Hatch, I try to make up my mind after 
the hearing, not before.
    Justice Owen. I appreciate that, Senator Leahy.
    Senator Hatch. I have noticed that.
    Senator Feinstein. Now, now, gentlemen. Now, now.
    The next questioner is Senator McConnell, and directly 
finishing with his time, we will recess until 2:15. Senator 
McConnell?
    Senator McConnell. Justice Owen, I gather from your 
testimony and that of others that you share my view that judges 
ought not to be elected.
    Justice Owen. Yes, Senator McConnell. From the very first 
time that I--since I have been on the court, since the 1995 
legislature upwards, I have advocated that we allow the people 
of Texas to amend the State Constitution, which is what it 
would take in Texas to change the way we pick judges, and allow 
them to choose to go to a system that is essentially an 
appointment system whereby the judges would then stand for 
retention in a totally nonpartisan manner.
    Senator McConnell. You probably noticed the U.S. Supreme 
Court decision a few weeks ago on the issue of whether or not 
States are permitted to have, in effect, gag rules on judges if 
they do elect them. The Supreme Court held that--I got the 
impression from reading Justice Scalia's opinion that he, too, 
was unenthusiastic about electing judges, but he said if you 
are going to elect them, you cannot say they cannot say 
anything. I was reminded, we have a similar rule in Kentucky, 
and I have noticed over the years judges showing up at events, 
standing up, introducing themselves, smiling sweetly, and 
sitting down because they are essentially not allowed to say 
anything.
    I raise this because it is, of course, permissible to elect 
judges, and Texas has chosen to do that, and while that is 
maybe not how I would do it, the people of Texas did not 
consult me on that. This issue about your contributions, I find 
fascinating how one could run for office, unless taxpayers 
provide funding for an election, how one could run for office 
without speaking, and having the funds available to speak to a 
large audience like you have in Texas is beyond me.
    You were successful in raising funds in order to carry your 
message to the people of Texas and now you are being, I gather, 
criticized for raising perfectly legal contributions to engage 
in perfectly permissible campaigns in order to hold the office 
that you have now.
    You certainly received de minimis contributions from Enron, 
smaller amounts than at least one member of this committee, and 
there is no evidence whatsoever that Enron is given any 
favorable treatment in any of the cases that it might have had 
before you. All evidence indicates that you have acted 
ethically and ruled correctly with respect to any matters 
involving Enron. You never received any contributions from the 
company or from Enron-affiliated corporations, and while you 
received some contributions from Enron employees, as I read it, 
it is less than 1 percent of the total amount of funds you 
raised.
    The one opinion that I gather is frequently referred to 
relating to Enron that you wrote was unanimous and bipartisan 
and relied on two on-point Supreme Court decisions. So the 
notion that you somehow were tainted by any of these Enron 
employee contributions is utterly without any basis.
    The committee has received a letter from two Democratic 
Justices on the Texas Supreme Court, Raul Gonzalez and Rose 
Specter, who joined in that unanimous decision and who 
confirmed that there was nothing extraordinary, let alone 
improper, about it, and if no one else has put that letter in 
the record to date, I would like to ask that that letter be put 
in the record.
    Others have referred to the lawyer who lost that case and 
the letter he sent saying that he was disturbed by suggestions 
that your decision in the case was influenced by campaign 
contributions from Enron employees. The lawyer said, ``I 
personally believe that such suggestions are nonsense.'' This 
was the guy who lost.
    You could have taken a much more expansive view of what the 
contribution system allowed in Texas, but I hold up your pledge 
you made to the people of Texas when you ran in 1994, that you 
did not have to make, with regard to the parameters that you 
were going to superimpose over your contributions during that 
campaign. You unilaterally decided to accept no more than 
$5,000 from a PAC, a political party, any other entity, or an 
individual together with his or her spouse and independent 
family members. You did not have to do that, did you?
    Justice Owen. That is correct, Senator. At that time, there 
were no laws at all in Texas limiting judicial campaign 
contributions.
    Senator McConnell. And you pledged to have no more than 
half my contributors be lawyers, and in a Statewide race, 
accept no more than 60 percent of your total contributions from 
lawyers. You did not have to do that, did you?
    Justice Owen. I met all of the--I met my pledge.
    Senator McConnell. Yes, but you did not have to do that.
    Justice Owen. I did not have to do that.
    Senator McConnell. This was something you chose to do 
because you were troubled by having to raise funds in order to 
run for a judicial race, but, of course, if you did not, nobody 
would have known who the heck you were.
    Justice Owen. That is correct, Senator.
    Senator McConnell. Third, you said you would allow no PAC 
or political party to spend more than $5,000 pro-rated to aid 
my campaign. You did not have to do that, did you?
    Justice Owen. No, sir, I did not.
    Senator McConnell. You, fourth, said you would accept no 
more than $25,000 from a law firm and all its employees and 
members, their spouses and dependent family members. You did 
not have to do that, did you?
    Justice Owen. No, Senator.
    Senator McConnell. Fifth, you said you would accept no more 
than 15 percent of your total contributions from non-lawyer 
PACs. You did not have to do that, did you?
    Justice Owen. No, Senator.
    Senator McConnell. Sixth, you said you would use no funds 
raised for any non-judicial office. You did not have to do 
that, did you?
    Justice Owen. No, Senator.
    Senator McConnell. Seventh, you said you would spend or 
loan no more than $10,000 of my money on my campaign. You did 
not have to do that, did you?
    Justice Owen. No, sir.
    Senator McConnell. Eight, you said you would spend no more 
than $2 million. You did not have to do that, did you?
    Justice Owen. No, sir.
    Senator McConnell. And ninth, you said you would make a 
good-faith effort to report the occupation and employer of each 
person who contributes more than $50. Did you have to do that?
    Justice Owen. I was not required by law to do it, no.
    Senator McConnell. All right. So you were somewhat troubled 
by the fact that you had to run for office like a regular 
candidate here and you were, on your own, trying to impose some 
standards in order to diminish the appearance, at least, of 
undue influence on the part of these contributors to your 
campaign, is that correct?
    Justice Owen. Well, let me--let me do say that when you say 
I was on my own, Senator, one of my colleagues who was also 
running at the same time also took the same pledge, and Chief 
Justice Phillips had not done exactly that, but he had imposed 
limits when he had run prior to that. So I was certainly not 
the only one that had ever done it, but there were not many of 
us that had.
    Senator McConnell. That is nice of you to say that. The 
others obviously were troubled by the process in some ways, as 
well, and as several of the people who testified on your behalf 
pointed out, you have actually been a leader in trying to nudge 
Texas in the direction of adopting a different system, have you 
not?
    Justice Owen. I have.
    Senator McConnell. Frankly, I think you ought to be sainted 
for your exemplary conduct in running for this office. Some 
people are insisting on painting you as some kind of Ma Barker 
here of depression-era gangland fame and it is utterly absurd.
    So just to explore how much attention you may have paid to 
these contributors, can you name for me your top five largest 
contributors?
    Justice Owen. I cannot. I can name the top one because it 
was my former law firm and the employees, including the mail 
room people, contributed and they exceeded the cap and I gave a 
bunch of their money back. But I know because of that that they 
were my largest contributor, but other than that, I do not 
know.
    Senator McConnell. You cannot remember any of the rest of 
them, right?
    Justice Owen. I can remember some--certainly, I can 
remember some of the law firms that contributed because they 
are people I practiced law with for 17 years. But I do not know 
where they fell in terms of were they 100th or tenth or--I do 
not remember.
    Senator McConnell. And so the suggestion is made that you 
should have somehow notified parties arguing cases before you 
of the fact that you had received contributions when, in fact, 
that is not required by Texas law and the contributions would 
be available in publicly disclosed form to anybody who was 
curious enough to ask, and certainly including the lawyers who 
were appearing before you, correct?
    Justice Owen. That is correct.
    Senator McConnell. I think these suggestions that you have 
somehow engaged in rulings that favor your donors is absolutely 
absurd on its face, and I commend you for really traversing the 
waters here of elected politics for a judicial position in a 
very ethical manner.
    As I said, at the risk of being repetitious, I do not think 
judges ought to be elected, but if we are going to elect them, 
they certainly ought to be free to speak, and the Supreme Court 
has made it clear they are free to speak. The Supreme Court 
also made it clear over 25 years ago that in order to speak, 
you have to reach the audience, and the only way you are going 
to reach the audience is to raise funds to reach the audience, 
particularly in an enormous State like yours with a population 
currently of what?
    Justice Owen. I do not know----
    Senator McConnell. Over 20 million.
    Justice Owen. Five million people, I think close to five 
million people voted in my 1994 race.
    Senator McConnell. Yes, over 20 million people in Texas. 
You managed to do that in an extraordinarily thoughtful and 
ethical manner, for which you ought to be commended, not 
condemned, and I think the suggestion that you have in any way 
been tainted by these contributions is completely and totally 
baseless--completely and totally baseless. It just troubles me 
greatly that you have even been subjected to this criticism 
because there is essentially nothing that I can find in the 
record that justifies it.
    Senator Feinstein. Senator, your time is up.
    Senator McConnell. Madam Chairman, I think we are about to 
the end of our time here anyway and I will save the balance of 
my observations for another round.
    Senator Feinstein. All right. Senator Hatch, you had a 
question?
    Senator Hatch. Yes. Madam Chair, if I could, I feel 
compelled to respond to the questions raised earlier about the 
nominations of Judge Rangel and Enrique Moreno, because these 
nominations were made when I was chairman of this committee and 
I understand those remarks as some attack on my record of 
fairness.
    Jorge Rangel voluntarily withdrew his nomination citing 
frustration with the pace of the confirmation process. Now, it 
is interesting to note that his nomination was pending for 
fewer in-session days than Justice Owen's. Mr. Rangel quit 
after waiting 192 days of Senate business, while Justice Owen 
is here after 212 Senate business days.
    When Mr. Rangel quit, President Clinton decided not to 
allow the Texas Senators' Federal Judiciary Advisory Group to 
review and recommend potential candidates. Instead, President 
Clinton nominated Enrique Moreno. This put the Advisory Group 
in the unprecedented position of interviewing someone who had 
already been nominated to determine his qualifications, and 
when the Advisory Group voted, two-thirds of the voting members 
opposed the nomination. Now, anyone acquainted with the history 
of Senate consultation on nominations would fully understand 
that bypassing the home State Senators is not an effective 
strategy for confirmation.
    In contrast, Justice Owen enjoys the full and strong 
support of both of her home State Senators and, of course, many 
others in a bipartisan way, as well.
    So I just wanted to set the record straight because I did 
not want anybody walking out of here thinking that there was a 
lack of fairness. Thanks, Madam Chairman, for letting me make 
that statement.
    Senator Feinstein. You are welcome.
    Senator Hatch. Could I also put in the record, Madam 
Chairman, a letter to Senator Leahy concerning the Ford Motor 
case that was raised earlier----
    Senator Feinstein. The Searcy case.
    Senator Hatch. Yes, written by Victor E. Schwartz, who, of 
course, is one of the true authorities on tort law in this 
country and knows what hornbook law really is.
    Senator Feinstein. Without objection.
    [The letter appears as a submission for the record.]
    Senator Feinstein. The hearing will recess until 2:15. I 
earlier said 2, but the party conferences generally do not end 
until 2:15, so we will make it that. Thank you very much.
    [Recess from 12:22 p.m. to 2:15 p.m.]
    AFTERNOON SESSION [2:15 p.m.]
    Senator Feinstein. The hearing will come to order.
    Justice Owen, just a reminder, you are still under oath, 
and we will resume the first round of questioning. I would 
remind the committee that we will recess for any floor votes 
that occur during the remainder of the day, and once again, we 
are following the early bird order, and it begins with Senator 
Kennedy. After Senator Kennedy, Senators DeWine, Feingold, 
Sessions, Schumer, Brownback, Durbin, Cantwell, and Edwards, is 
what I have so far.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Senator Feinsten. 
Welcome, Judge Owen.
    Justice Owen. Thank you.
    Senator Kennedy. I apologize for not being here earlier. I 
was here in the very beginning of the hearing. We are, as you 
have heard, considering the prescription drug issue, and as the 
floor manager of that, I needed to be on the floor. I am going 
to ask questions and then, with the permission of the Chair, 
submit some follow-on questions. But I would like to cover, if 
I could in the time that I do have, two areas.
    As I look at your cases, I see that you have a pattern of 
siding against the consumer or the victim of personal injury in 
favor of business and insurance companies, and I am struck by 
the fact that when the court does rule in favor of consumers or 
victims of personal injury, you are frequently in dissent. In a 
few instances, you have gone along with the majority of the 
case and ruled in favor of injured individuals. But looking at 
the information over the last 3 years, you have dissented 
almost half the time that a consumer wins, and you have never 
dissented in a case in which the consumer loses.
    Do you disagree that you are among the most likely on the 
Texas Supreme Court to dissent from favoring--or cases favoring 
a consumer or injured plaintiff?
    Justice Owen. No, Senator, I don't. I judge each case on 
its merits. I would like to address one thing you said. One 
case that comes to mind where I was in the dissent in favor of 
the plaintiff was Saenz v. Fidelity Guarantee, or I am not sure 
what comes after ``Fidelity,'' but it was a workers' 
compensation case. And the woman entered into a settlement 
agreement of her workers' compensation claim, and she 
ultimately claimed that she was fraudulently induced into it 
and claimed damages for bad faith. And I agreed with the 
majority of the court that the bad faith claim couldn't stand, 
but I dissented because she should have been entitled to 
rescind that settlement agreement and go back and assert, 
reassert her original workers' compensation claim. And that is 
one that comes to mind. I could go back and----
    Senator Kennedy. Let's take the example where the majority 
found--over the objections of the majority, have you ever 
dissented over the objections of the majority and found for a 
consumer or plaintiff? Do you have any recollection of any 
cases?
    Justice Owen. Well, that would be one of them, the Saenz v. 
Fidelity.
    Senator Kennedy. That wasn't a majority case.
    Justice Owen. I was in the dissent in that case. Are you 
asking me if I've been in the majority for consumers?
    Senator Kennedy. Any time that--can you point to a case in 
which you stood up for a consumer or individual plaintiff over 
the objections of the majority?
    Justice Owen. Well, there----
    Senator Kennedy. That is, a case in which the consumer lost 
and you dissented.
    Justice Owen. Well, I think the Saenz case that I just 
described is one of them. I think there are probably others. 
Again, there are 900 of them, and I don't remember them all. 
But I could go look.
    Senator Kennedy. Well, if you could be good enough to 
provide some of those.
    Justice Owen. I certainly voted--there are a number of 
opinions where I have--obviously the consumer has recovered, 
and I joined those opinions.
    Senator Kennedy. In the past 2 years, the Texas Supreme 
Court has ruled on cases brought under the Texas Parental 
Notification Act and the law passed by the State legislature in 
2000 to permit the young women to have an abortion without 
notifying her parents if she proves by a preponderance of the 
evidence that she is mature and sufficiently well informed to 
make the decision or if notification would not be in her best 
interest or if notification would lead to physical, sexual, or 
emotional abuse.
    Many, if not most, would describe members of the Texas 
Supreme Court as conservatives, and as cases have come before 
the court, it is clear that its members have struggled with the 
task of restraining their personal beliefs about abortion and 
parental notification to ensure that they adhere to the letter 
of the law. In fact, former Texas Supreme Court member, current 
White House counsel Alberto Gonzales wrote, ``I cannot rewrite 
the statute to make parental rights absolute or virtually 
absolute, particularly when as here the legislature has elected 
not to do so. While the ramifications of such a law and the 
results of the court's decision here may be personally 
troubling to me as a parent, it is my obligation as a judge to 
impartially apply the laws of the State without imposing my 
moral view on the decisions of the legislature.'' That is all 
his quote.
    Now, Justice Owen, a majority of the court have applied the 
plain language of the parental notification statute to the 
relevant cases, and they have refrained from legislating from 
the bench and placing new hurdles before young women who are 
already required to meet the stringent standards required by 
the statute. On the other hand, you have repeatedly tried to 
impose new standards, standards not found in the statute, on 
the young women whose cases come before you. For example, you 
would require young women to meet an unusually high standard to 
prove the ``direct, clear, and positive'' proof of abuse 
instead of showing that the notification may lead to abuse. 
Your standard is so high that four of your colleagues wrote, 
``Abuse is abuse. It is neither to be trifled with, nor its 
severity to be second-guessed.''
    Similarly, you would require a minor to exhibit an 
awareness of religious issues. In no place does the statute 
require such a showing.
    So, Justice Owen, you seem to be making not interpreting 
the law, and, in fact, many might call your actions on the 
court activist. Can you tell the committee why, if you believe 
that your views reflect the plain language of the statute, you 
have been unable to persuade a majority of your colleagues to 
interpret the statute such that it includes the additional 
hurdles that you have grafted onto the parental notification 
law?
    Justice Owen. Senator, obviously my court disagreed. We 
divided up initially on these cases. Let me go back and address 
the clear, direct, positive. That was not the standard that--
the statute says ``abuse may occur,'' and I looked for a 
definition of emotional abuse in another piece of the same 
family code. And I didn't say that you would have to exhibit--
you would actually have to have that. I said that's the 
definition of abuse if it may lead to that. That's all I was 
saying there.
    The clear, direct evidence piece comes into--that's our 
standard of review as an appellate court, that--not in the 
trial court, not in the trial court. The trial court, the 
burden of proof is preponderance of the evidence, and if 
there's some evidence to support what the trial court did, 
that's that. But on appeal, if the trial court denies the minor 
the bypass and there--even if there's no evidence to support 
that denial, she still must, under established law that the 
majority agrees with, she must still establish by clear, direct 
evidence that's unequivocal as a matter of law that she's 
entitled to that bypass. And the majority agrees with that. 
It's in our case law. That's just the standard of review if 
she--for her to establish as a matter of law she's entitled to 
it on appeal. That's not the standard that would be applied in 
the trial court.
    Senator Kennedy. Well, are you saying that the four 
Justices didn't have a different position than you had on this 
particular case?
    Justice Owen. I'm saying there are two different inquiries. 
In Doe 1, I differed with the majority. I said that there were 
other factors that ought to be considered in deciding whether a 
minor is sufficiently informed. And once Doe was over, that was 
the standard that I applied in every case thereafter.
    A separate issue that we don't disagree on----
    Senator Kennedy. These are other factors in the law? You 
were looking at the law and you found that there were other 
aspects of the law that you noticed that the other judges did 
not notice?
    Justice Owen. I looked again at everything that the U.S. 
Supreme Court had said that it's OK for States to include in 
ensuring that a minor is sufficiently well informed to make 
this decision without the knowledge of either of her parents. 
They're factors that appear in at least three Supreme Court 
cases that I thought the legislature intended to reference when 
they used the words ``sufficiently informed and mature.'' And 
so I was looking again at what the U.S. Supreme Court had said 
in this whole area about being informed and being mature. The 
court did not agree with me, but after Doe 1, I applied the 
court's standards that they've pronounced. And then this clear, 
direct evidence is not--it's not tied to the statute. That's an 
appellate standard that the majority agrees with. That's just--
she's not entitled to a bypass in our court unless she 
established by--well, in the record, the evidence established 
by clear, direct, positive testimony, free from doubt, as a 
matter of law she had met the standard.
    Senator Kennedy. Well, if you had that, you'd have the same 
ruling today as you had at that particular time? You still read 
that the way you did at that particular time?
    Justice Owen. No, Senator, I apply the--after Doe 1 and all 
the other Doe cases that have come up involving mature and 
sufficiently well informed, I apply the same--I only looked at 
the same factors that the court--the big controversy the second 
time Doe came up was whether there was any evidence at all to 
support what the trial court did. And I said it was a close 
case. But I said the trial court was actually there on the 
ground. He saw--he or she saw the minor testify, judged her 
credibility, and I think maturity is something that's 
particularly hard to do from a cold record. And I said there's 
some evidence, even though it's close, to support what the 
trial court did, and under appellate standards of review, I 
felt I was bound to uphold what the trial court did, even 
though I might have ruled a different way had I been the trial 
court.
    Senator Kennedy. Madam Chair, I thank you. My time is up. I 
will have a chance to examine this record further, but I am 
troubled by this conclusion. Thank you.
    Senator Feinstein. Thank you very much, Senator Kennedy.
    Senator DeWine?
    Senator DeWine. Justice Owen, thank you for being with us. 
I want to clarify something to followup on Senator Kennedy's 
questioning. You do now follow Roe 1?
    Justice Owen. Yes. That's--yes, that's our precedent.
    Senator DeWine. That is the law of Texas today.
    Justice Owen. It is the law, and that's----
    Senator DeWine. And you have followed that ever since Roe 1 
was decided; is that correct?
    Justice Owen. Yes, Senator.
    Senator DeWine. Now, in Roe 1, both the minority and the 
majority were trying to decide what guidance to give the trial 
court.
    Justice Owen. Yes.
    Senator DeWine. Isn't that correct?
    Justice Owen. Yes. We were trying to----
    Senator DeWine. And isn't it correct that the only dispute 
was what guidance to give? It wasn't a dispute over whether you 
were going to give guidance?
    Justice Owen. That's correct.
    Senator DeWine. And, in fact, isn't it true that the 
majority did give guidance to the lower court?
    Justice Owen. They did.
    Senator DeWine. And that is the guidance that you follow 
today?
    Justice Owen. That's correct.
    Senator DeWine. There are a number of rules of construction 
that courts apply when interpreting a statute. Isn't it true 
that one of those rules is that a legislature is presumed to be 
aware of U.S. Supreme Court precedent in an area in which it 
has passed a statute?
    Justice Owen. That's one of the standard presumptions in 
statutory construction.
    Senator DeWine. Basic rule of construction the courts will 
follow.
    Justice Owen. Yes.
    Senator DeWine. So in the case of the Texas parental 
notification statute, the Texas court's presumption would be 
that the Texas Legislature was, in fact, aware of Supreme Court 
precedent when it crafted its judicial bypass process.
    Justice Owen. Yes, Senator, and we all agreed on that. The 
majority agreed that that was true.
    Senator DeWine. Now, I'm looking at the end of Section IV 
in the Texas Supreme Court's majority opinion in the first Jane 
Doe case. In Section IV, your court's majority is discussing a 
line of U.S. Supreme Court cases on parental bypass, starting 
with Belotti. Your court majority concludes, and I quote, ``Our 
legislature was obviously aware of this jurisprudence when it 
drafted the statute before us.'' So you weren't alone in your 
conclusion that the Texas Legislature drafted the parental 
notification statute with the Supreme Court cases in mind, were 
you?
    Justice Owen. No, Senator.
    Senator DeWine. The majority had the same opinion.
    Justice Owen. They did.
    Senator DeWine. Let me really get back to basics in regard 
to this issue, and I want to go back to the statute that was 
passed by the Texas Legislature in this area, and I will quote 
from it. ``When a minor files this application for a bypass''--
in other words, saying ``I do not want either one of my parents 
notified,'' and this is, in fact, a minor we are dealing with. 
``When a minor files such an application, the court shall 
determine''--I am quoting from the statute--``by a 
preponderance of the evidence whether, one, the minor is mature 
and sufficiently well informed to make the decision to have an 
abortion performed without notification to either of her 
parents; or, two, notification would not be in the best 
interests of the minor; or, three, notification may lead to 
physical, sexual, or emotional abuse of the minor.''
    The statutes continues: ``If the court makes any of these 
determinations''--that is my emphasis, ``any of these 
determinations''--``the court shall enter an order authorizing 
the minor to consent to the performance of the abortion.''
    Now, you, as the Supreme Court, you are not the trier of 
fact, are you?
    Justice Owen. No, we're not.
    Senator DeWine. That is the lower court, the originating 
court.
    Justice Owen. Yes.
    Senator DeWine. And in Texas you have three layers?
    Justice Owen. That's correct.
    Senator DeWine. So before that case gets to you, any of 
these, what, 10 cases, 12 cases? Whatever they were.
    Justice Owen. There were 10 girls.
    Senator DeWine. About that. Before they got to you, the 
trier of fact had already determined that none of these three 
items applied, because if any of them would have applied, if 
the trier of fact who was watching the witness, who was talking 
to the young lady, who was taking all the circumstances into 
consideration, if that trier of fact had found any of these 
three, that case never would have got to you, would it?
    Justice Owen. That's correct.
    Senator DeWine. Now, is it my understanding under Texas law 
that once a lower court makes that determination, that ends the 
case, because----
    Justice Owen. That ends the case.
    Senator DeWine [continuing]. There is no one to appeal the 
case.
    Justice Owen. That's correct. There's no one to----
    Senator DeWine. The plaintiff has won or the person who's 
filing, the young lady who's filing or her lawyer, they've won 
the case.
    Justice Owen. And the statute specifically says there's no 
appeal from a grant of the bypass.
    Senator DeWine. So before these cases get to you, the lower 
court has found all three--or has found that none of the three 
apply. Then an appellate court has gone through and done a 
review.
    Justice Owen. That would be a three-judge panel.
    Senator DeWine. A three-judge panel. That is how it works 
in Texas. All right. Now, as all lawyers know and judges know--
and I think many people know--when a case gets to an appellate 
court such as your Supreme Court, you are not re-trying that 
case.
    Justice Owen. No, Senator, we're not.
    Senator DeWine. And there are different standards. The 
majority came down with one standard. You came down with 
another standard of review. Those standards are not very 
dissimilar. Those are--what are the basic standards?
    Justice Owen. Well, in terms of the factors on mature and--
--
    Senator DeWine. What are you looking for to overturn the 
case? What do you have to find?
    Justice Owen. On the mature and sufficiently well informed 
that--there are two things. You first have to conclude that 
there was absolutely no evidence to support the trial court's 
failure to find, but then you also have to take the second step 
and look at the evidence and see if the minor established from 
clear, direct, convincing evidence--I may not be quoting 
exactly, but it's in the majority opinion--and there's no 
factual dispute at all, that before she's entitled to a 
bypass----
    Senator DeWine. That is the law of Texas today?
    Justice Owen. Yes.
    Senator DeWine. That, though, in a sense is not totally 
dissimilar to what we have in many appellate cases where the 
basic principle of law that we have in this country is that we 
give deference to the lower court, the trier of fact, whether 
it is a jury or whether it is as judge, who has the opportunity 
to watch the witness, has the opportunity to judge the demeanor 
of the witness on the stand, has the opportunity to take all 
the totality of circumstances into account. Isn't that true?
    Justice Owen. That's correct.
    Senator DeWine. So I think, Madam Chairman, it seems to me 
that when we look at and judge these cases, these parental 
notification cases, it seems to me that as we see whether or 
not these have any bearing on this Justice' qualification to 
sit on the Federal bench, it is good for us to be mindful of 
the fact that all appellate courts give a great deal of 
deference to the lower courts, that all appellate courts 
understand that the trial court judge has his job or her job 
and they are the ones who are looking at the witnesses. And it 
would seem to me that particularly when we are dealing with 
such a very delicate case and a case where the understanding of 
the young lady involved is so important, and what not just she 
has been told but what she truly understands, that the trial 
court judge is in a unique position to make that decision. And 
I think that we all should consider that as we look at these 
cases.
    Thank you very much.
    Senator Feinstein. Thank you, Senator DeWine.
    Senator Feingold, you are next.
    Senator Feingold. I thank the Chair. Welcome, Justice Owen.
    Justice Owen. Thank you.
    Senator Feingold. Justice Owen, the independence of the 
Texas Supreme Court has recently been attacked for allowing its 
law clerks to accept large bonuses, as much as $45,000, from 
law firms that law clerks plan to join after completing their 
clerkships. And the potential for conflict of interest here is 
very real and serious, I think. The clerk's review and express 
opinion on cases brought by or against the firms paying their 
bonuses.
    I am told this issue provoked an investigation by the 
Travis County Attorney into whether the practice violates Texas 
criminal law. The Texas Ethics Commission ruled last year that 
the bonuses could be in violation of the State's bribery laws.
    In response, the Supreme Court issued new guidelines 
concerning these so-called clerk perks. I am told that you, 
however, defended the clerk perks and dismissed the criticism 
as a ``political issue that is being dressed up as good 
government issue.'' Why do you believe that this was simply a 
political issue and not a genuine issue of ethics, fairness, 
and independence of the judiciary?
    Justice Owen. Senator, I'm glad you asked that question 
because, first of all, my quote, I do think I said it was a 
political issue. I don't remember the second part of it. But 
let me give you some background, if I may, on the entire clerk 
issue.
    First of all, the investigation was not of my accord or any 
judge on the court. That was an issue between the employers and 
the law clerks. The court or the Justices were never under any 
kind of scrutiny at all from the criminal law standpoint. But 
this is a long-standing practice that I would say many, if not 
most, Federal district courts, Federal circuit courts, and I 
think even some judges on the U.S. Supreme Court, law firms 
around the country typically give so-called clerkship bonuses 
to their lawyers who take their first year of practice and 
clerk for a court, not just my court but, as I said, Federal 
district courts, Federal courts of appeals, U.S. Supreme Court. 
And nobody--that was a practice that's been around for a long 
time.
    Ever since I've been at my court, I mean, everybody--it was 
a clearly understood rule and certainly a hard and fast rule in 
my chambers that if you had clerked for any law firm, if you 
were even thinking about taking a job offer from any law firm, 
you were completely recused from all of their cases 
permanently, as long as you were an employee of the court. You 
didn't get near that file. You didn't work on memos. When the 
matters touching that case were brought up in conference, you 
have to leave the conference room, so that there's just no 
opportunity at all for a law clerk that has any connection or 
any potential connection as an employee with the law firm to 
come into contact with those files. So----
    Senator Feingold. So the clerks have recused themselves in 
each of the cases?
    Justice Owen. They have, and that's been a rule for years 
as far as to my knowledge on the Supreme Court.
    Senator Feingold. I appreciate that background. Let me just 
return to my original question. Do you believe this is a simply 
political issue or it is also a genuine issue of ethics, 
fairness, and independence of the judiciary?
    Justice Owen. The reason I said it was a political issue is 
because it was only my court that was singled out. This 
practice--they didn't criticize the Federal courts. They didn't 
criticize any of the lower State courts of appeals who do it. 
They didn't criticize the criminal court. They criticize the 
U.S. Supreme Court. It was just my court that was singled out 
by a group who routinely issues press releases accusing my 
court of ethical violations.
    Senator Feingold. Well, let me ask you more broadly, then, 
the broader practice. Is it simply a political question or is 
it a question of whether this creates potential problems, a 
legitimate question of ethics and fairness?
    Justice Owen. I didn't think, because of the way we had 
always structured the clerkship program, that it was an ethical 
issue. Because it was such a well-settled, long-standing 
practice and because these clerks had no access whatsoever, I 
didn't think it was an ethical issue. The way it was resolved 
is not--again, this is mainly an issue between the employers 
and our clerks, not the court. But we did say--put in new rules 
so that the clerks would be absolutely clear and wouldn't 
inadvertently get in trouble with anyone. We said--the 
authorities said that they can take the clerkships over--the 
bonus over a period of a year after they leave the court. So it 
was--they still get the bonus. It's just a question of timing.
    Senator Feingold. I appreciate those answers. Let me turn 
to a different question.
    I understand that you are a member of a local church in 
Austin, Texas, the St. Barnabas Episcopal Church.
    Justice Owen. I am.
    Senator Feingold. According to Alliance for Justice, in 
1998, while you were a sitting Justice, you lobbied then-
Governor George W. Bush in a private meeting with your pastor 
for State funds for an evangelical prison ministry program, 
Alpha Prison Ministries.
    Now, according to Jose Juarez, a law professor at St. 
Mary's School of Law In Texas, this conduct is a violation of 
Canons 1, 2, 2A, 2B, 4A, 4B, 4C, and 5 of the Texas Code of 
Judicial Conduct. Canon 2B states that a judge ``shall not lend 
the prestige of a judicial office to advance the private 
interest of the judge or others.'' Canon 4C states that a judge 
``shall not solicit funds for any educational, religious, 
charitable, fraternal, or civic organization.''
    Professor Juarez concludes by stating, ``Any Texas judge 
should have known that such a meeting would violate the Texas 
Code of Judicial Conduct.''
    Would you please explain why you held this meeting in 
violation of the letter and the spirit of the Texas Code of 
Judicial Conduct?
    Justice Owen. Well, Senator, I respectfully submit that I 
didn't violate any ethical code at all. I facilitated a meeting 
between my pastor and then-Governor Bush to ask if--for my 
pastor to ask him if he would consider allowing a prison 
ministry headed up by my church in a prison. No State funds 
were asked for whatsoever. The whole prison ministry didn't 
cost the State any money. It was totally voluntary on the 
prisoners' part. They didn't get any special perks or any 
special treatment if they took part in the prison ministry. It 
was a small group of people, as I understand it--I didn't 
participate, but as I understand it, who ended up going to the 
women's prison in Burnet, Texas, on Friday evenings for a 
period of, I think, 6 weeks or so to do this prison ministry. 
Again, no funds were involved. It was simply on Friday 
evenings, again, as I understand it--Jeff is here. He can give 
you the details if necessary. But----
    Senator Feingold. So there was no solicitation for funds at 
all?
    Justice Owen. Absolutely none.
    Senator Feingold. And that is why it is your contention 
that none of the canons of ethics were violated.
    Justice Owen. That, and the fact that although I am a 
judge, I am also a friend of then-Governor Bush, and we had 
discussed some of these issues or some of our respective 
beliefs before, and I had told him about my pastor. And I guess 
in my mind it was more friend-to-friend as opposed to judge-to-
Governor. But in either event, even if I had had my judge hat 
on, no funding was involved at all. It wasn't a lobbying 
effort. It was simply ``Would you consider letting us do this 
prison ministry?''
    Senator Feingold. I appreciate your answers to my 
questions, Justice.
    Justice Owen. Thank you.
    Senator Feinstein. Thanks, Senator Feingold.
    Senator Sessions is not here, Schumer, Brownback--Senator 
Durbin is. You are next up.
    Senator Durbin. Thank you very much, Madam Chair.
    Justice Owen, thank you for joining us. I have followed in 
the news reports a suggestion that the Texas Supreme Court has 
changed rather dramatically over the last 10 or 15 years. There 
have been suggestions that because of active political 
campaigns that those Justices now serving on the court, at 
least a substantial majority, are certainly more sympathetic to 
business interests, to corporate interests, and insurance 
company interests than previous courts. In fact, some national 
news programs have suggested that it is nothing short of a 
statewide, coordinated, long-term campaign for those interests 
to make certain that they are well represented on that Texas 
Supreme Court.
    Have you heard these same press reports?
    Justice Owen. Certainly.
    Senator Durbin. Do you believe they are true?
    Justice Owen. No, Senator, I don't.
    Senator Durbin. And so you would say that the court is--how 
would you describe the court today?
    Justice Owen. I would describe it as I think some of our 
colleagues in other States have described it, as a very good 
court. A Justice on the Massachusetts court has said when they 
start looking at common law issues, in particular, they start 
with the Texas Supreme Court because our opinions are well 
researched and thoroughly reasoned, and that's where they 
start.
    Senator Durbin. On the court itself, where would you place 
yourself on the spectrum? More conservative than majority or in 
the center position or more liberal?
    Justice Owen. Senator Durbin, I frankly don't--I don't 
think it's very instructive to apply words like 
``conservative'' or ``liberal'' in terms of judging. I don't 
take a political viewpoint into my chambers or onto the bench 
when I judge cases as I am sitting there reading the briefs.
    Senator Durbin. Well, let me ask about a few of those cases 
to see if I can deduce my own conclusion for that. Let me ask 
you just directly: What is your position on abortion?
    Justice Owen. My position is that Roe v. Wade has been the 
law of the land for many, many years, now as modified by Casey. 
And none of my personal beliefs would get in the way of me 
applying that law or any other law.
    Senator Durbin. And yet if someone were to take a look at 
the opinions that you have written on the parental notification 
statute of Texas, they would find, would they not, that in the 
overwhelming majority of cases you have decided against 
allowing a minor to go forward with an abortion procedure under 
Texas law?
    Justice Owen. Senator Durbin, there are only five girls 
that my court has written on, and out of those five cases, I 
voted to grant the bypass in one case, and the first time that 
they came to the court in the other two, I voted to remand 
those cases to the trial court so that Jane Doe 1 and Jane Doe 
2 could each get another shot at getting the bypass. And if the 
trial court had granted the bypasses the second time, that 
would have been the end of it.
    The second time Doe 2 came back, I said it was a close 
call, but based on the record, I had--I felt like I had to go 
with the trial court's call.
    In five of the cases, as I think I talked about earlier, 
they came up to the court and, without opinion, the court 
affirmed the lower courts. As I said, that would take at least 
six votes. There were no public dissents. If there had been, 
they would have had to--all the judges would have had to have 
noted where they lined up. And I think it's a fair assumption, 
given the amount of writing that occurred on the other five 
cases, that if they had been close cases, we would have written 
on them. So we are----
    Senator Durbin. Is it not true that you have ruled against 
abortion rights in every opinion you have authored and in 13 of 
the 14 cases you considered on the court?
    Justice Owen. No, sir, that's--I voted in the first two 
cases--I didn't say she doesn't get the bypass. I said she gets 
another chance to convince the trial court that she should get 
it.
    Senator Durbin. Do you understand----
    Justice Owen. And then I granted the bypass. I voted with 
the court with Doe 10 to outright grant the bypass.
    Senator Durbin. Do you understand the timeliness of the 
decisions that the courts are making in these cases?
    Justice Owen. The timeliness?
    Senator Durbin. Yes.
    Justice Owen. As soon as they come in, we drop everything 
and deal with these----
    Senator Durbin. And remanding them for another court 
review----
    Justice Owen. Within 2 days. We told them that you've got 2 
business days under the statute to resolve it.
    Senator Durbin. In Jane Doe 2, you wrote in your 
concurrence, ``The court has omitted any requirement that a 
trial court find an abortion to be in the best interest of the 
minor.'' The law says that the notification has to be in the 
best interest of the minor. Could you tell me where you came up 
with the notion that the legislature required that the abortion 
be in the best interest of the minor?
    Justice Owen. Yes, sir, I can. That's directly out of a 
U.S. Supreme Court case that said we construe notification to 
mean--I'm sorry, notification best interest to mean that 
abortion without notification is in the best interest, and it's 
straight out of a majority opinion from the U.S. Supreme Court.
    Senator Durbin. I find in each of these cases, though, that 
you have tended to expand and embellish on the State 
legislative decision in Texas. Now, Senator Gramm, your 
sponsor, one of your sponsors today, has said that he thinks 
the Texas Legislature was trying to take three sides on a two-
sided issue. That is a statement that is fairly critical of his 
legislature. Clearly, they have taken a position, and I take it 
from what you have said to us today that these court decisions 
where you consistently find problems with the Texas parental 
notification statute, you are saying don't reflect any 
opposition on your part to a woman's right to choose?
    Justice Owen. No, Senator, I don't think they do. And, 
again, the exact language that's in the statute, ``best 
interest,'' that exact same language was construed by the U.S. 
Supreme Court to mean that the abortion without notification 
was in the best interest. So I followed what the U.S. Supreme 
Court had construed that to mean, and I thought that was a 
reasonable construction given that the legislature had taken 
the language out of--if not that very case--it may have been 
that very case.
    Senator Durbin. I would have to say that I have been on 
this committee for a few years, and the issue of judicial 
activism has arisen when there were Republican Chairs and 
Democratic Chairs. And I have come to conclude that it is in 
the eye of the beholder that Republicans only want judges who 
are actively pursuing their agenda and Democrats only want 
judges actively pursuing their agenda. I don't think it is an 
objective standard that is being used here. And so the term is 
being used back and forth here. What I am looking for really 
are some fundamentals in terms of your philosophy. I believe 
the President has a right to fill vacancies, but I also believe 
that the people of this country and certainly the people in 
this circuit that you are aspiring to deserve judges who are 
going to be moderate and centrist and try to be reasonable and 
balanced in their decisionmaking.
    Let me go to a specific case if I can for a moment----
    Justice Owen. Senator, before we leave this area, could I 
make just one point on this activist--in this whole area of a 
woman's right to choose? Two cases have come before my court 
that I'd like you to be aware of. One, I believe it was 
Sepulveda v. Krishnan. In that case the question was: Can a 
mother and a father recover damages for the death of a fetus? 
And I think you could see the implications in all of this 
debate over that particular issue. And my court had for many 
years construed the Texas wrongful death statute and the 
survival statute to say, no, you cannot recover for the death 
of a fetus.
    We were asked to reconsider that construction, and we 
pointed out that the vast majority of States now allow recovery 
in those circumstances.
    But I agreed with the majority that, no, that had been 
Texas law, we were not going to change it. You cannot recover 
for the death of a fetus. That's the law in Texas----
    Senator Durbin. I am sorry to interrupt you, but I have 
very little time here, and if you would like to submit 
something along that point of view, I will be happy to consider 
it.
    I want to go to one specific case, though, the Provident 
American v. Castaneda case. Do you remember it?
    Justice Owen. I do.
    Senator Durbin. I have read this and read your decision, 
and I often wondered how a court could come down, as you did, 
writing the majority opinion here, in a case involving coverage 
on a health insurance plan where, frankly, the insurance 
company decided to try to find anything it could in its policy 
to avoid paying for a critical surgery that was needed by this 
family. In fact, you came down and found on the side of the 
insurance company and said that there was an exclusion under 
their policy.
    The dissent that was written in this case by Justice Raul 
Gonzalez I think went to great lengths to point out the facts 
that you chose to ignore. He said, ``The court sustains''--let 
me find this here directly. ``The court ignores important 
evidence that supports the judgment, emphasizing evidence and 
indulging inferences contrary to the verdict, resolves all 
conflicts in the evidence against the verdict for the family 
that was denied coverage.'' And he goes on to say, ``I want to 
cite the facts the court chooses to ignore in its decision.''
    The reason I raise this issue--and Justice Gonzalez was 
very forthright in believing that this was a slam dunk for the 
insurance company--that they got an opinion from you that he 
didn't believe was sustained by the policy or the evidence. In 
fact, he said he thought with your opinion you were destroying 
the bad-faith tort in the State of Texas.
    Going back to my original point, I think it is fairly well 
known that the Texas Supreme Court is much more conservative 
today than it once was, that it was an all-out effort by major 
corporations and by insurance companies to try to build a 
majority on that court. And as I read this decision, sometimes 
it is hard for me to imagine how someone in good faith can look 
at the facts as in this case and basically say to a family, 
after they had pre-approval for a surgery, that an insurance 
company could come in and say no, we are not going to cover, 
and then have a Supreme Court in Texas stand behind him and say 
to the family, You are out of luck, they found a little 
provision in the policy here; you are not covered.
    This troubles me because, frankly, that kind of a finding 
reflects a philosophy which does not tell me there is a well-
balanced approach here, and certainly Justice Gonzalez felt the 
same way in his dissent. I would invite you to comment.
    Justice Owen. Thank you, Senator. I really do appreciate 
the opportunity because this case was not about coverage. They 
were covered--the only dispute here was bad faith. These people 
recovered under their policy. They got their attorney's fees 
for breach of contract, and they got either 12 percent or 18 
percent penalty under the statute. I can't remember which one 
applied at the time. They lost on the coverage question, no 
doubt about it. That was not the issue in front of my court. 
The issue was whether in addition to their coverage, their full 
policy limits plus attorney's fees, plus the penalty, could 
they recover extra contractual damages for bad faith. And the 
standard there is that the insurance company had absolutely no 
reasonable basis whatsoever to deny the coverage.
    And the facts in this case were the family had two children 
who had been jaundiced all of their lives. They called up an 
insurance company and applied for a policy after their uncle 
had told them that he had a hereditary blood disease called HS. 
The policy had a 30-day waiting period, and they didn't 
disclose to the insurance company anything about the hereditary 
disease. Three days after, or maybe it was two, after the 30-
day----
    Senator Durbin. Three.
    Justice Owen. Three days after the 30 days had run, they 
took their children to a physician who on the spot diagnosed 
this hereditary disease and removed their--I believe it was 
their spleen. So the question was: Under those circumstances, 
not should the insurance--could they deny coverage, but was 
there any reasonable basis for them to delay in paying the 
policy limits. And we said under all those circumstances you 
can't say that there was no reasonable basis to delay. But they 
were covered. That was not the issue.
    Senator Durbin. I could tell you that I think we are 
carping on a trifle here as to whether they are covered. The 
fact was the insurance company approved the surgery, did they 
not, before it took place?
    Justice Owen. Yes.
    Senator Durbin. And the fact is the insurance company then 
refused to pay, and you were arguing in your majority opinion 
here on behalf of the insurance company that waiting the 3 days 
after the 30-day period was not enough, that this family was 
deceiving the insurance company, was operating in bad faith, 
and I think Justice Gonzalez and Justice Specter make 
compelling argument here that the facts don't just come out 
that way.
    I have represented insurance companies, and I have 
represented plaintiffs. You are the answer to an insurance 
company's prayer if you would buy this argument. If you would 
turn on a company--turn on a family that is facing this kind of 
peril and make this kind of interpretation, and that is what 
troubles me about what you are asking for, is to be elevated to 
a court where you can make significant decisions involving 
insurance companies and major corporations, which I am afraid 
if you follow the logic as you did in the Provident case would 
not be in the best interest of serving the people in the court.
    Thank you for being here. Thank you, Madam Chair.
    Senator Feinstein. Thank you very much.
    I don't see other Senators here at the moment, but I 
thought I might just say something. I am deeply concerned 
because I have read all the Doe cases, and I have read the 
notification law, and the notification law is pretty 
straightforward: one, the minor is mature, sufficiently well 
informed to make the decision to have an abortion performed 
without notification to either of her parents or a managing 
conservator or guardian; or the notification would not be in 
the best interest of the minor; or notification may lead to 
physical, sexual, or emotional abuse of the minor. That is it. 
And any one of the three factors has to be present. That is it. 
It seems to me on that basis you make a decision, but you 
really haven't done that. You have looked in other places, it 
seems to me, to find a rationale not to do what the Texas law 
called for, invoking a religious implication, invoking concern 
about the fetus, invoking, well, the emotional wrongdoing, was 
just threatened by the parents, it may not have happened.
    It seemed to me that you--and maybe this is what being an 
activist means--that you worked to come out where you came out 
in your opinion. And that is a very deep concern because if the 
Texas Legislature wanted to change ``may'' to ``must,'' they 
could have. They could have said, ``Notification must lead to 
physical, sexual, or emotional abuse of the minor,'' but they 
didn't. They said it ``may,'' which means it either may or may 
not. And this I find troubling.
    Now, I had some Texas lawyers come to me who are consumer 
lawyers, and they said their concern was they didn't believe 
they could ever get a fair shot in your courtroom. And that 
was--in 10 years of serving on this committee, no one has ever 
said that before. And the case that Senator Durbin just raised, 
which I was going to mention as well, the fact is that there 
was a judgment. The fact is that the family was entitled to 
coverage. But your invalidation of the trial verdict completely 
threw out their entire award.
    And, again, I mean, the law is there for little people. 
This is the remedy for little people, not for the--the 
Providents of the world certainly have the right to be taken at 
face value, but what disturbs me is that in so many places in 
these notification cases, in the health benefits cases, in 
other consumer-related cases, in the Searcy case, these are 
people very much harmed, and their redress was cutoff.
    Could you respond to that?
    Justice Owen. Yes, Senator, I would like to. You know, 
there are a lot of cases that come before our court that I 
think tug at all of our heart strings, and that's the hard part 
of being a judge sometimes. But, again, I have committed and 
have got to apply the law, and there are guiding principles in 
contracts, in the bad-faith area, and other areas that have to 
dictate what the law says.
    Again, in the Castaneda case, let me emphasize, it was not 
about their insurance coverage. They won on the coverage issue. 
They got all of their policy benefits. They recovered 
attorney's fees. There's a statutory penalty in Texas if the 
insurance company doesn't timely pay, and I'm assuming that 
they recovered that statutory penalty. The issue in my court 
was not policy benefits. The issue in my court was do they get 
extra contractual benefits for bad faith, which is a common law 
tort or sometimes it's brought under a statute, Article 2121. 
So it was not a coverage issue. They did get their policy 
benefits.
    On the parental notification cases, let me make clear that 
I have never advocated in my opinion or anywhere else that a 
young girl has to have religious beliefs of any type at all. 
But, you know, I said at the U.S. Supreme Court has said, these 
are weighty decisions and that a minor ought to exhibit some 
awareness that there are philosophical and moral and religious 
issues out there. And I hasten to add, if she doesn't have 
any--it's not an inquiry what they are. Simply that if she has 
those beliefs, has she thought about them? Has she considered 
them? Has she considered the philosophical and social and moral 
arguments, whether she agrees with them or not, just an 
awareness that they exist. She doesn't have to adhere to any 
particular viewpoint. She doesn't have to explain or justify 
her viewpoint or her philosophy or her moral stance or whether 
she has religious beliefs. The U.S. Supreme Court has said--and 
I try to apply that--that it is simply she needs to exhibit 
some awareness as a mature person, an adult, you would hope an 
adult would exhibit, that there are at least these arguments 
out there on both sides, and that she's aware of both sides, 
not that she agrees with it or, again, has to justify any of 
this.
    And, again, I really do--I did think that given that the 
legislature had lifted word for word what ``mature and 
sufficiently well informed'' meant, and ``best interest'' and 
all of this out of a statute that had been--from another State 
that had been approved by the U.S. Supreme Court, that they 
were trying to adhere to all of that precedent. And, Senator, I 
think it is hard if I were a trial judge and I was told, well, 
decide if she's mature, decide if she's sufficiently well 
informed, well, without some guidance, I think you're going to 
get varying results around the State. What does that mean?
    And so I think it was necessary for my court to speak and 
give--so that girls in West Texas wouldn't be held to a 
different standard that girls in East Texas were. My court 
ultimately--I didn't totally agree with the majority on every 
aspect, but I did my best to adhere to what I thought the 
legislature intended. It was not anti-anything. It was not 
activism. Once the court made its decision in Doe, those are 
the factors, and I abide by that.
    Senator Feinstein. Well, I believe that this completes the 
testimony. I am going to adjourn the hearing, and we have two 
other--oh, we have more people coming. I would recess for the 
vote then, go down and vote, and just ask you to forbear.
    Justice Owen. OK.
    Senator Feinstein. If you don't mind.
    Justice Owen. Not at all, Senator.
    Senator Feinstein. So we will take a brief recess. Thanks, 
everybody.
    [Recess.]
    Senator Feinstein. The hearing will reconvene, and next on 
the list, Senator Schumer, then Brownback, Cantwell, and 
Edwards.
    Justice Owen. Madam Chair, before we proceed, can I amend 
an answer?
    Senator Feinstein. Certainly, go right ahead.
    Justice Owen. It was regarding the Provident American v. 
Castaneda case. I remembered that it was--the only issue in 
front of my court was bad faith, and I had thought--I 
incorrectly remembered, I just assumed that they had won on the 
contract claim in the trial court and that was not in front of 
us. I was right that the contract----
    Senator Feinstein. Are you talking about Castaneda now?
    Justice Owen. Yes.
    Senator Feinstein. All right.
    Justice Owen. I was right that the contract claim was not 
in front of us. They never pled breach of contract or asked for 
any jury findings on breach of contract. They only sued on a 
bad-faith denial of the claim. So I was wrong. I was incorrect. 
I had not read the case in quite a while. I said that they 
recovered their contract damages. They just never pled that. 
They were seeking solely a so-called bad-faith claim under the 
Texas Deceptive Trade Practices Act and under the insurance 
code. They were statutory claims not under the policy, but so-
called extra-contractual claims.
    Senator Feinstein. Yes, but they did not get the extra-
contractual claim.
    Justice Owen. That's right. They did not get the extra-
contractual----
    Senator Feinstein. They did get the surgery paid for?
    Justice Owen. Well, that's my--I thought they did, but they 
never pled----
    Senator Feinstein. They did not?
    Justice Owen. No, because they never asked or pled for 
policy benefits under the contract.
    Senator Feinstein. So then they got nothing?
    Justice Owen. They ended--as it ended up, because they 
didn't ask or plead in the trial court or ask for the jury to 
find breach of contract of the policy, we didn't have that in 
front of us, so we couldn't grant that for them. In other 
words----
    Senator Feinstein. Didn't the trial court grant it?
    Justice Owen. No, Senator, they never pled it. They went 
solely on non-contractual claims. They never pled in the trial 
court or asked the jury to find that the insurance company owed 
the policy benefits under the policy. I don't know why that 
was, and I had just assumed that the only thing that they had--
I assumed they'd gotten the contract benefits because I knew 
the only issue in front of us was bad faith. But as I re-read--
someone handed me the opinion during the break, and they just 
didn't ever raise the contract claims in the trial court.
    Senator Feinstein. Thank you for clearing that up. I 
appreciate it.
    Senator Schumer?

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Madam Chairwoman, and I very 
much appreciate the opportunity to testify, and thank you, 
Judge Owen.
    Before I get into what I want to ask you, I did want to 
make a few points in reference to what Senator Hatch said in 
his opening remarks. Unfortunately, he is not here. I tried to 
make them while he was here, but--so he knows I am going to 
make them. Three points.
    First, you know, let's try to keep this debate at a 
reasonable level. Senator Hatch keeps saying left-wing pressure 
groups, left-wing pressure groups. Don't hear anything about 
right-wing pressure groups or moderate pressure groups. There 
are a whole bunch of groups that support Judge Owen's 
nomination. They are doing their civic duty, but anyone who 
opposes it is a left-wing ideological pressure group. Enough of 
that. That kind of foolishness should not go on in this 
committee room or anywhere else. Let's be fair about it. There 
are groups on both sides pushing everybody, and we are all 
independent and have to make our own decisions. We may be 
influenced by them on one side of the aisle or the other. But 
this idea that the only pressure groups are from the left is a 
joke.
    Second, related, Senator Hatch talked about something that 
I agree with, which is, well, we are picking, we are looking 
for little personal things about people, and they are going to 
put you through the wringer. ``Welcome to Washington,'' he said 
to you, Judge. I am aghast. After 8 years of them looking and 
turning President Clinton, his family, and everyone who worked 
for him inside out about every single issue under the sun, now 
all of a sudden it is ``welcome to Washington.'' Again, what is 
good--I don't believe in it on either side. But let's have some 
semblance of fairness about this. About not nominating women? 
What a canard. What kind of argument is that? I mean, I don't 
think anybody can--any cursory look at what this committee has 
done has stood up to that. We have on the floor voted for 12 
women. My guess is that is about as high a percentage in terms 
of the gender as the men who were sent to us.
    How about not voting for anyone who is pro-life? My guess 
is of the 78 judges I voted for, the majority are pro-life in 
this session. So let's cut out the games. Let's not try to beat 
people up with two-by-fours, with specious arguments. Let's 
have a real discussion about what makes a good judge. And we 
will have differing views on that, and that is fair, and that 
is why we have a Senate.
    But I will tell you, I am not going to bamboozled by 
arguments like that, and I don't think anybody should be. And I 
just wanted the record to show that. I thought that kind of 
hyperbole is not fair.
    OK. Now, to Judge Owen. Oh, and one other point which I 
will answer. I am glad Senator Hatch is here.
    Senator Feinstein. You just missed it.
    [Laughter.]
    Senator Schumer. Yes, sorry.
    Senator Hatch. Is he running me down again?
    [Laughter.]
    Senator Feinstein. He is responding.
    Senator Schumer. I am just responding.
    Senator Hatch. Oh, that is what we call it now.
    [Laughter.]
    Senator Feinstein. You are terrible.
    Senator Schumer. He is, but he is a nice guy. He is truly a 
nice guy.
    Senator Hatch. Not nearly as terrible as him.
    Senator Schumer. His arguments are not as nice as he is.
    In any case, the other point that Senator Hatch made, which 
I will address as I address you, Judge Owen, is what kind of 
questions are legitimate to ask and not ask to a candidate for 
a high, lifetime position. But let me say this to you, Judge 
Owen, and then I am going to make some statements and ask some 
questions and weave them in together.
    Last week, we had the pleasure to meet privately, and when 
we talked, I told you I have had, I think since I have come 
here, three standards in terms of nominating, choosing, voting 
for judges. They are: excellence, legal excellence; 
moderation--I don't like judges too far left, too far right; 
and diversity. I don't think the bench should be all white 
males.
    I don't think there is any question about your legal 
excellence. You have had a distinguished academic and 
professional career, and the ABA, whose ratings review the 
nominee's legal excellence, no more, no less, has rated you 
well qualified, with good reason. I think anyone who has 
listened even to 10 minutes of this hearing today has no doubt 
about the excellence in terms of the quality of your legal 
knowledge and your intelligence, your articulateness, et 
cetera.
    On the diversity front, the population of the Fifth 
Circuit, the court you have been nominated to, the population 
within the body of the Fifth Circuit is the most racially 
diverse in the country, even more so than the Fourth Circuit. 
And President Clinton, let the record just show, made three 
nominations to that circuit, two of whom were Latino--there is 
a large Latino population within the Fifth Circuit, mainly in 
your home State of Texas. None of them received confirmation 
hearings. So one of the reasons we don't have diversity on this 
court is that reason. But, obviously, in terms of gender 
diversity, you get an A-plus.
    The third standard is moderation, and that is really where 
I have concerns, and that is where my focus will be.
    Now, there is some idea out there that all of a sudden has 
sort of taken root, among people of a particular ideology, I 
might add, that you can look deep into space and divine the 
correct legal interpretation of a statute that we all would 
come out in the same exact place, that our ideology has nothing 
to do with how we interpret the law. We all know that is bunk. 
It is obvious when you look at any court. Judges bring their 
experiences, their biases, their ideology to the table when 
they decide cases. Whether it happens consciously or 
subconsciously, we know it happens. If it didn't, why would 
Justices Scalia and Thomas come out exactly--almost the same 
way on so many cases, so different than, say, Justice Breyer 
and Justice Ginsburg? If ideology made no difference, the 
number of times--they are all very smart people. They are all 
great lawyers. The number of times that Scalia would agree with 
Thomas would be about the same as the number he agreed with 
every one of the judges.
    Look at the nominees that Presidents Reagan and Bush made 
to the court versus the nominees that President Clinton made to 
the court. How come they all seem to vote so similarly? It is 
because ideology does matter. We all know it. This 
administration knows it. How come they haven't sent up a single 
so-called liberal judge? If they were just looking for legal 
excellence, they would send some judges from the left, some 
judges from the center, some judges from the right. The 
President said it himself. He said that he wanted to send 
judges up in the mold of Scalia and Thomas. I give him credit 
for honesty. He is doing that. Whether that is good for the 
country or not is the debate at least that I have chosen to 
engage in over the last few years that we have been here.
    That happens on your--it happened in the Texas Supreme 
Court as well. You and Judge Hecht have frequently come down on 
the same side on the Texas Supreme Court. It is not accident. 
It is not simply that you went to the same law school, read the 
same law books. Philosophically, you are in the same place, 
similar places.
    So this idea that ideology shouldn't matter, that we 
shouldn't ask questions about someone's judicial philosophy, 
which is what my good friend from Utah said, I think is so, so 
wrong that it is almost hard to accept if you look at it in any 
way at all. And my guess is if we looked at the way my good 
friend from Utah voted on judges over the last years he has 
been in office and the way I voted on judges, we would agree on 
most of them because we agree on most judges as we vote. But it 
is clear that his philosophy would dictate he voted against 
certain judges and for others, and I probably did the mirror 
image because our philosophy does influence how we vote. We are 
just not simply interpreting the legal excellence of the mind. 
I do agree with him, as I said before you came in, that I don't 
like this ``gotcha'' stuff. I think that has become a 
substitute for all of this, but how come it is, when there is a 
Republican nominee, it is the Democrats who focus on the 
``gotcha'' stuff, and when it is a Democratic nominee, it is 
the Republicans who focus on the ``gotcha'' stuff?
    Again, if we weren't doing ideology, whether someone smoked 
marijuana in college or went to some book shop and got a 
certain book or movie, the vote should be even disbursed 
through the political spectrum. It is not because it is sort of 
a kabuki game.
    Well, what I have tried to do in the year that I have been 
chairman of the Courts Subcommittee is bring some level, at 
least I would call it, of honesty to the debate. Let's admit 
that ideology should play a role. Let's ask those questions. I 
think it is my obligation to ask those questions, and I will 
tell you, I am opposite of Senator Hatch. Any judge who doesn't 
answer questions about their philosophy, their views on the 
First or Second or Fourth Amendments, should not be put in such 
an important and august position where there is a lifetime 
appointment.
    So let me----
    Senator Feinstein. Senator, your significant treatise took 
10 minutes and 32 seconds.
    Senator Schumer. May I ask one question?
    Senator Hatch. Could I as a point of personal privilege 
just make one note for the record? I only voted against one 
Clinton judge out of the 378 that we passed. So I hardly used 
ideology----
    Senator Schumer. I bet it wasn't a conservative.
    Senator Hatch. Well, I don't know what he was, to be honest 
with you, other than I didn't feel he was right.
    Senator Schumer. Could I ask one question, Madam Chair?
    Senator Feinstein. Yes, one question and then we go to 
Senator Sessions.
    Senator Schumer. OK. So here is my question, and maybe if 
we have a second round, I would like to ask some specific ones. 
I did not intend to take that long, but this is a subject that 
excites me.
    Now, let us assume--because I think choice is a very 
legitimate issue for us to question judges on, and so I would 
like to know your views, and here is the way I would phrase it: 
It is 1965. You are sitting in the Supreme Court of the United 
States. Chief Justice Warren comes into your chambers with a 
copy of the opinion in Griswold v. Connecticut, the seminal 
case that held there is a right to privacy in the Constitution. 
He asks for your thoughts on the opinion. Now, there is no law 
to follow right now, but he is asking for your opinion in terms 
of everything that has been part of you. What do you tell him?
    Do you agree with the holding? Do you agree with the 
outcome but get there in a different way, in other words, that 
there is a constitutional right to privacy, the penumbra of 
which extends to at least the first two trimesters of a woman's 
pregnancy? What do you tell Judge Griswold [sic]?
    Justice Owen. Well, Senator, again, I've responded somewhat 
to this question before, but I can assure you that nothing in 
my personal views on any topic has influenced or would 
influence my ability to read the U.S. Supreme Court precedent 
and to apply it. And, frankly, I don't----
    Senator Schumer. But this time there was no precedent. That 
is why I am asking you the question as I did.
    Justice Owen. I don't see it as my role as a judge on the 
Supreme Court of Texas or as an intermediate judge to delve 
into decisions and critique them or say this was wrong on the 
law or this was right on the law. And, frankly, when I have 
read those decisions, that is not the way I approached them as 
a lawyer, and that is not the way I've approached them as a 
judge, are they right on the law, are they wrong on the law. 
I've always approached them with trying to figure out what did 
they say in these opinions, what was the basis for their 
opinion, and how does that play out in the factual situation 
that either my client, when I was a lawyer, has or now as a 
judge in the case before me.
    Senator Schumer. Judge Owen, being on the Texas Supreme 
Court, certainly being on the Fifth Circuit, as you know, the 
Supreme Court only deals with about 75 cases a year. You are 
going to be asked, when you are a judge, questions like this 
every day. To say, to duck the question--and that is what you 
did, and I am not trying to surprise you; my staff told the 
people in the Justice Department I would ask you this very 
question--I don't think is fair to us. I don't think it is fair 
to me. I don't think it is fair to the 19 million people I 
represent in New York. I want to know your opinion. This was a 
case where there was very little precedent that was directly 
relevant. The Supreme Court made a decision that is still with 
us in terms of its controversy, in terms of the heat that it 
generates on both sides.
    I think the American people, the people of the Fifth 
Circuit, are entitled to know how you would advise Judge 
Griswold [sic] on that opinion because it shows your view, 
something very important about whether you think there is a 
constitutional right to privacy, how far you think it extends, 
et cetera. And this is a case that has already been decided, 
but it can tell us how you think and where you come down. And I 
don't think your answer--I understand that you do that, but on 
the Texas Supreme Court--you are much more familiar with it 
than I am--you had to make decisions like this all the time. 
You certainly will on the Fifth Circuit.
    So I would ask you again: Can you give me something more 
specific rather than telling me that your methodology is not to 
answer questions like that?
    Justice Owen. Well, let me tell you----
    Senator Schumer. Because you would have to answer them when 
you sat on the court, when you wrote opinions, when you agreed 
with the majority opinion, when you dissented, and you have 
done it and we all know you have done it.
    Justice Owen. But I don't approach decisionmaking that way. 
I've never--I'm not asked to come in in a vacuum and say, well, 
what do you think is----
    Senator Schumer. I am not giving you a vacuum question. I 
am giving you the specific facts of a case. I mean, we have 
talked a lot about parental consent. I mean, I am sure you have 
read the Griswold decision.
    Justice Owen. Yes, I have.
    Senator Schumer. OK.
    Justice Owen. It's been a long time, but I've read it, yes.
    Senator Schumer. I am asking--OK. Well, it is an important 
decision even in terms of talking about parental consent. 
Obviously you are dealing with a different Constitution here, 
Texas versus the United States. But you have to be able to tell 
us more than this is not the way I think. I mean, I just 
don't----
    Justice Owen. Well, I was going to expand on my answer, 
but----
    Senator Schumer. Please do.
    Justice Owen. When you say that that's the way--you're 
going to have to think that way, and I respectfully----
    Senator Schumer. I am asking you----
    Senator Sessions. Senator Schumer, let the lady answer the 
question. You have asked her----
    Senator Schumer. Well, I am just trying to--OK. Go ahead.
    Justice Owen. The way I would approach that case had I been 
on the court then is the same way that I approach 
constitutional issues today, and that is, I read everything 
that the U.S. Supreme Court has written up to that point on the 
issue. And, frankly, Senator, I don't know--I didn't read the 
briefs in Griswold. And I'm, frankly, so influenced by the 
existing body of law that we've had the right to privacy for so 
many years, my court has recognized a right to privacy under 
the Texas Constitution, I think it's kind of hard at this point 
for me to erase all of that out of my mind and put myself back 
in their shoes without all of this case law that's come down 
the pike, not having the benefit of the briefs or the 
arguments, to say how would you have written, were you writing 
on a clean slate, it's very difficult for me to write on a 
clean slate when I have all of this historical law now out 
there.
    And, again, I don't write on a clean slate when I answer 
constitutional issues.
    Senator Schumer. What I would like to do, because I know my 
time is up--and I appreciate the indulgence, Madam Chairperson. 
I would like to submit some written questions that specifically 
ask some of these things and see if we can get a more specific 
answer and give you a little time maybe to review the case law, 
whatever you would have to review as if you were being a judge 
on the case in some sense.
    Senator Feinstein. Thank you, Senator Schumer.
    Senator Sessions, you are next up.
    Senator Sessions. Justice Owen, you recognize Griswold to 
be the law and would follow it?
    Justice Owen. Yes, Senator.
    Senator Sessions. And if called upon to apply its 
principles, you would apply them in your decisionmaking 
process?
    Justice Owen. Absolutely.
    Senator Sessions. Well, I think you handled this precisely 
right, and I am sorry Senator Schumer was unhappy with your 
answer. But you handled it precisely like a jurist should 
answer it. How could you be expected to put yourself back into 
that circumstance without having read all the briefs, without 
having studied the law carefully, and to render an opinion on a 
case of that importance? I note Senator Schumer left, and 
recently he complimented Justice Hugo Black of the Supreme 
Court on his views on the Constitution. And, of course, Hugo 
Black dissented in Griswold. So these things are of interest 
and, I guess, fun to talk about. But, in reality, as the person 
who is being considered for a judgeship, I think you have 
demonstrated the right characteristics in a judge, that is, to 
be cautious not to express opinions until you have fully 
studied all the briefs, all the law involved, as your record 
demonstrates you do so skillfully.
    I would just note that your testimony has been 
extraordinary. I have been very impressed with your command of 
the cases you have handled, the hundreds that you have handled. 
I have been very impressed with your ability to articulate your 
thoughts in a reasoned and fair way. I see no hint of extremism 
or activism or some obsession with forcing some political 
agenda on anybody, not one hint of it. And it is disturbing, 
actually, to have those comments be made. I just don't believe 
there is one hint of it.
    Justice Owen, I have also been impressed, as Senator Gramm 
and Senator Hatch noted, that you came at this service to the 
Supreme Court of Texas because of a desire to serve. It cost 
you, I am sure, financially significantly. You have won re-
election with 84 percent of the vote. The American Bar 
Association, who certain members of this committee insisted 
must have a bigger role than they have had in recent years in 
the process, has unanimously rated you ``well qualified.'' That 
is the highest rating you can get, and a unanimous vote for 
``well qualified'' is very rare. And they had the opportunity 
to study your record. They have seen you on the bench, and they 
have talked to your former law partners. They have talked to 
lawyers who have litigated against you. They know your 
reputation and your ability, and I think they made a well and a 
wise choice in rating you ``well qualified'' unanimously.
    I have to be impressed with your academic record: No. 2 or 
three in your class, made the highest score on the bar exam. 
What an accomplishment that is, in a big State like Texas, 
particularly. So I just think you have so much to be proud of, 
and I particularly like your demeanor and the way you have 
handled yourself under some of the questions that have been 
brought forward.
    And I also note, it seems to me, that you have not been 
just a potted plant. You have been a reformer in your life in 
the law about the rule of law. Tell me how you feel about the 
responsibility of a judge or a public official. What is their 
responsibility about defending and strengthening the rule of 
law in America?
    Justice Owen. Well, I think that's the ultimate 
responsibility, is to defend and strengthen the rule of law in 
America. I think we all understand that our society is built on 
laws and that that is what basically orders our society. That 
helps us plan. That helps us have predictability. It helps us 
have stability. It helps us know that cases won't be decided 
randomly based on sympathy or passion, when they should be 
decided another way under the law. So I think the rule of law 
is very important, that it's consistently and fairly but with 
common sense applied in every case.
    Senator Sessions. Well, now, is that why when you are asked 
to rule on a case you just don't spout off the answer, as some 
would have you do in this hearing? Is that why you go back and 
you take the Texas statute on notification, parental 
notification, and then you know that it is passed during a time 
in which they were considering the Supreme Court rulings as 
they tried to craft a statute for Texas? Is that why you went 
back and studied the U.S. Supreme Court cases to try to 
understand what Texas was trying to do so that you could give a 
fair and objective answer as to what the statute really meant 
and what the legislature intended?
    Justice Owen. Yes, Senator. Let me--if I can explain this. 
Maybe I have not done a very good job of it yet. But when the 
legislature used the words ``mature and sufficiently well 
informed,'' that could mean a lot of different things to 
different judges all across Texas. And so given that that was 
kind of an amorphous definition, I thought, Where did they come 
up with these words? What definition did they have in their 
minds when they picked these words?
    And then when I went and read the Supreme Court cases that 
they pulled the exact language out of, I looked at how did the 
U.S. Supreme Court define ``informed.'' What did they say is 
relevant to an informed consent? How did they define ``informed 
consent''? And I believed that the legislature was looking to 
the cases out of which it picked the words ``mature and 
sufficiently well informed'' for us to glean what the actual 
definition was, what the factors that courts were to consider 
in deciding if someone was making an informed decision.
    Senator Sessions. Well, I think that is what a great jurist 
does, and I think you handled that. You did it exactly right. 
That is precisely what should be done.
    You know, looking at your background, I see a person who 
has worked hard to reform and improve the system. Senator 
McConnell noted your voluntary limiting of your contributions. 
He did not mention the fact that after you had a relatively 
easy race last time, you gave back one-third of the 
contributions. I don't know anybody in this body that has ever 
done that. And that is a remarkable thing, indeed.
    I notice that you worked hard to encourage the Texas 
Legislature to secure more Legal Service funding for the poor 
and were successful in that.
    Justice Owen. Yes, Senator. We were particularly hard hit 
in Texas when legal funding for LSC, the Legal Services 
Corporation, nationwide was cut back. Texas kind of got a 
double whammy. Not only were our traditional Legal Services 
offices cut back in budget, but Texas has a large migrant 
worker population, and funding for the migrant workers 
particularly hard hit. And a lot of people, including me, were 
concerned that the basic infrastructure through which legal 
services to the poor were delivered in Texas was going to 
collapse because we were that close to the line.
    So we had to look for ways to put more money in the system 
to keep the professionals who were involved in sort of the 
backbone of the delivery system in place, because if we lost 
that, we would not be able to anywhere come near meeting the 
legal services needs of the poor in Texas. And so a group of 
folks, not just me, certainly--I was the court's liaison and 
was involved in it, but explored ways that we could put--get 
more funds, and ultimately the legislature passed the statute 
that put more money in legal services for the poor.
    Senator Sessions. And I noticed you helped organize Family 
Law 2000, a conference, an effort to educate parents about the 
effects of divorce on children. I have heard a lot of people in 
the know in the legal system express concern that too often a 
divorce proceeding becomes an adversarial gladiator sport and 
that children are hurt unnecessarily in the process. Is that 
what you were dealing with there?
    Justice Owen. Yes, Senator. I did not practice family law, 
but when I got to the court, it was clear to me that 51 percent 
of the civil cases in Texas are family law matters, and that's 
sort of where the rubber hits the road, if you will, for most 
citizens in Texas. And almost--you know, so many people have 
experience with the family law courts, and a lot of lawyers and 
a lot of family law judges and psychologists have been 
concerned that this is--that the adversarial process is really 
hard on the children, and that sometimes lawyers escalate the 
process. Sometimes the way the laws are designed escalate the 
process. And we were sort of a think tank to try to think 
outside the box to the point of maybe really restructuring the 
way legal services are delivered, the family laws, to try to 
make this more of a unified approach to divorces, not just from 
the legal standpoint but from other aspects, and, again, try to 
focus on getting people to make consensus decisions, 
particularly for their children in the divorce context, and not 
in such an adversarial way.
    Senator Sessions. Well, I think that is good, and I know 
you have served on the board of the Texas Hearing and Service 
Dogs program that helps the blind and those with disabilities. 
You teach Sunday school at St. Barnabas Episcopal Mission. You 
have given back to your community in a lot of different ways.
    Let me ask you this: I know that my friend Dan Morales, the 
Attorney General of Texas, we served together, intervened for 
the state of Texas in an environmental case. You were asked 
about the City of Austin case and it was suggested that you 
were somehow doing something to help polluters or evil groups. 
But I noticed--and I assume Texas is like Alabama where the 
Attorney General represents the State in legal matters and 
speaks for the State in court. Is that correct?
    Justice Owen. That's correct.
    Senator Sessions. And the Attorney General, Dan Morales, 
intervened in that case on the side of the State of Texas, and 
he took the position, as I understand it, that Texas State had 
entered into this area and their law predominated, and that 
cities, the city of Austin did not have authority. And you 
eventually agreed with him in general on that opinion?
    Justice Owen. I did, absolutely. I agreed that the State--
the State basically trumps the city, it was my view, and there 
were extensive regulations in this area above and beyond the 
water regulations that applies to everybody in the State. This 
was not a non-regulated area. This is the same regulations that 
apply to any landowner in Texas apply to these folks, plus they 
had to have a water quality plan under the TNRCC, where they 
were subject to the TNRCC. They were subject to ongoing Federal 
regulations. So this was far from an unregulated area. The 
question was whose law was going to control, the State statute 
or the city's ordinances. And it seemed to me that the State 
certainly could take away the ETJ, extra-territorial 
jurisdiction, in its entirety. And if that were so, why 
couldn't they regulate here and tell the city no, our 
regulations--we choose how to regulate. We don't want you to 
regulating here.
    Senator Sessions. Well, I think you are right, and, of 
course, Mr. Morales is a Democrat and a capable Attorney 
General who was advocating for the State's interest. And, of 
course, a lot of people don't think about this and a lot of 
cities don't like to think about it, but cities are creatures 
of the State. The States are sovereign, have a sovereign power 
within that constitutional scheme, as does the National 
Government, but cities are total creatures of the State. And if 
there is a conflict, I think you came down on the right side 
between which is the pre-eminent authority within a State.
    Well, there are several other cases that I could go 
through. I do want to say that I think your ruling with regard 
to the Ford Motor Company case and venue was important. Venue 
is important. It is not correct or just to allow a plaintiff to 
choose any county in the State of Texas to file a lawsuit just 
because there is a Ford dealership in that county. In this 
case, as I understood it, you ruled consistent with Texas law 
that the case should be filed where the plaintiff lived, where 
the car was purchased, and where the accident occurred. All of 
those occurred in the county where venue was proper, and you 
did not deny them relief, but you simply sent the case back 
with the order to go to the correct county for venue purposes. 
Is that correct?
    Justice Owen. That's correct.
    Senator Feinstein. Senator, your time is----
    Senator Sessions. My time is up, and I would just say that 
I appreciate your candor. I appreciate your ability. I am 
impressed with the American Bar Association's evaluation of 
your performance. I am impressed with the evaluation of the 
people of Texas of your performance when you got 84 percent of 
the vote. And I believe we have had few nominees come before 
this committee ever who have testified more ably or who have 
better qualifications for the Federal bench.
    Justice Owen. Thank you.
    Senator Feinstein. Thank you, Senator.
    Senator Edwards?
    Senator Edwards. Thank you, Madam Chairman.
    Good afternoon, Ms. Owen. You have been here a long time. I 
want to focus, if I can, your judicial decisions.
    Justice Owen. OK.
    Senator Edwards. Tell me first, in cases involving the 
intentional infliction of emotional distress, whether you agree 
with the decisions in your court, in the Texas Supreme Court, 
that say--and I am reading now from one of those--that the 
overwhelming weight of authority, both in Texas and around the 
country, is that conduct involved in any particular case should 
be evaluated as a whole in determining whether it is extreme?
    Justice Owen. I think that's generally true, yes.
    Senator Edwards. The case that I want to ask you about that 
I have not heard others ask you about today, is a case 
involving three women who brought a case against GTE. The lead 
plaintiff Was Bruce, Rhonda Bruce, Linda Davis and Joyce 
Polstra. Based upon what they contended was extreme conduct in 
the workplace. And the evidence in the case--I am looking at 
the opinion now--was that the employer's manager, who was the 
person involved in the case, the defendant's manager, ``soon 
after arriving at work engaged in a pattern of grossly abusive, 
threatening and degrading conduct.'' And again I am reading 
from the decision now. ``He began using the harshest vulgarity 
shortly after his arrival. He regularly heaped abusive 
profanity on the employees,'' including these three women. On 
one occasion when he was asked to curb his language because it 
was offensive, he positioned himself in front of one of the 
plaintiffs, one of the women, and screamed, ``I'll do and say 
any'' blank ``thing I want, and I don't give a'' blank ``who 
likes it.''
    At one point another female employee raised a question, and 
he said, ``I'm tired of walking on'' blank ``eggshells, trying 
to make people happy around here.'' The opinion says, ``More 
importantly, the employees testified that Shields repeatedly 
physically and verbally threatened, abused and terrorized 
them.''
    And then the court, in considering that conduct as a whole, 
as you have just indicated the law provides, found that the 
jury verdict against the defendant was appropriate. And you 
wrote a concurring decision, where you agreed in part with the 
majority decision and dissented in part--disagreed in part. You 
did not dissent, but you disagreed with some of the conclusions 
that the majority had raised. And among those disagreements you 
found that the following conduct is not a basis for sustaining 
a cause of action of intentional infliction of emotional 
distress.
    And before I go through this long list of things that you 
said was not evidence to be considered, taken as a whole, and 
whether the defendant had acted outrageously, because I 
understand that you have told me that that is the legal 
standard. The question is whether any of these things taken as 
part of the overall case is something that would constitute 
extreme behavior under the law. The first thing you listed 
was--not to be included----
    Justice Owen. But, Senator, may I?
    Senator Edwards. Sure.
    Justice Owen. I just want to make clear what--that you 
understand, that everybody understands what I was saying here. 
I was not saying that you can't consider the totality of the 
circumstances, and I absolutely agreed with the majority that 
this guy was way over the line in this case. My only point in 
writing this was if you take--my only point was if you take 
these things that I listed out of that, the context of all of 
the other things that happened and standing alone, that you 
can't--this would not support a judgment standing alone. And I 
was concerned particularly----
    Senator Edwards. Excuse me. Did you say that, what you just 
said?
    Justice Owen. I said, ``That the following conduct is not a 
basis for sustaining a cause of action for intentional 
infliction of emotional distress, even when the employees who 
were upset by the conduct were women.''
    And my point here was that if this is all that happened, I 
mean, if you just have someone--and we can go through them--
cursing, that it's not accompanied by sexual harassment, or 
cursing, but it's not directed at the woman, that by itself 
will not give you, I don't think, sufficient grounds for 
intentional infliction of emotional distress. And I was 
concerned that people would read all the laundry list of what 
happened in the majority opinion, and say, ``Well, if I can 
prove any one of these things, then I'm there.''
    And I wanted to make it clear that I did not agree that if 
this is what you had without all of the other things that this 
man did----
    Senator Edwards. Let me--excuse me. I am sorry.
    Justice Owen. That you wouldn't get there. And that was all 
I was trying to make clear, because there were some statements 
that I thought conflicted particularly with very recent 
decisions out of our court and people might get confused, and 
so I wrote separately to point that out.
    Senator Edwards. Well, I guess I would first point out that 
the majority opinion I do not think ever said that any of those 
things standing along would be enough. They applied the law as 
you have recognized it to be, which is if you look at the 
totality of the circumstances.
    Justice Owen. And I agree with that.
    Senator Edwards. And they listed these things as things to 
be considered as part of the totality of the circumstances. And 
what you said, if I am reading it correctly in your decision, 
``The following conduct is not a basis for sustaining a cause 
of action.''
    Can I just go through them and ask you about each one?
    Justice Owen. Sure.
    Senator Edwards. The first one you said was cursing, 
profanity or yelling and screaming unless when it is not 
simultaneously accompanied by sexual harassment or physical 
threatening behavior. The second you listed was pounding fists 
on a table when requesting employees to do things. Third was 
going into a rage when employees leave an umbrella or purse on 
a chair or a filing cabinet. The fourth you listed was 
screaming at employees if they do not get things picked up. 
Five--I am jumping around; you have got a long list, and I am 
not going to read them all--is requiring an employee to clean a 
spot off the carpet while yelling at her. Another one is 
telling an employee that she must wear a post-it note that 
says, ``Don't forget your paperwork.''
    So this is a list of things that the majority, as I 
understand it, consider taken as a whole, as evidence that 
would support a verdict in favor of this three women, which the 
jury had found, as I believe.
    You have listed these things and said that they--in the 
language of your decision, that they are not a basis for 
sustaining a cause of action. And what I understand you to be 
saying to day is that standing alone, these things are not a 
basis for a cause of action. Is that correct?
    Justice Owen. That's correct. And I also want to make it 
clear that we're not talking about sexual discrimination here 
or anything of the sort because lots of things obviously would 
be grounds. We were talking about a tort that's been reserved 
by my court for very extraordinary circumstances, the so-called 
tort of intentional infliction of emotional distress, as 
defined by the restatement. So we're not--this is not conduct 
that I would say that is OK in the workplace under other causes 
of action. We're looking at one----
    Senator Edwards. But you specifically said that each of 
those things that I just read----
    Justice Owen. I specifically said standing--again, my point 
was that if this is what a plaintiff shows, that would be 
insufficient. You can't just say, ``In GTE-Bruce they said 
this,'' so therefore I've met the standard. I'd want to make 
sure there wasn't any confusion about what else would have to 
accompany that conduct to get to intentional infliction of 
emotional distress.
    Senator Edwards. Yes, ma'am. But I believe, as you said a 
few minutes ago, the majority never suggested that any of those 
things standing alone would be enough. And you didn't 
specifically say--unless I am missing it in your opinion--that 
any of those things standing alone would not be----
    Justice Owen. I didn't use the words standing alone----
    Senator Edwards. What you said was they would not sustain 
or form a basis for a cause of action, which has legal meaning 
as I understand it; is that correct?
    Justice Owen. That's correct.
    Senator Edwards. Can I ask you about another area?
    Justice Owen. Sure.
    Senator Edwards. There are some cases where you have 
dissented. I will just mention some. Some have already been 
mentioned today and I will not go over those again. But they 
are primarily cases where a child or a family or someone was 
involved, bringing a case against either an insurance company 
or a manufacturer, or a corporate defendant of some kind. And 
in several of these cases that I am looking at now, you 
dissented, you disagreed. And in each case you sided with the 
defendants. Your ruling was against the person who brought the 
case, the individual who brought the case. One was a boy who 
brought a malpractice case from having surgery with serious 
complications, the Weiner v. Wasson case.
    Another was the Wilkins v. Helena Chemical Company, where a 
farmer sued a seed manufacturer because the seeds he had bought 
did not work, they did not grow. Again, you sided with the 
chemical company.
    Another was a worker's arm, the Sonnier v. Chisholm-Ryder 
Company, where a worker's arm was severed by a tomato chopper. 
He brought a case against the manufacturer. You dissented 
against the worker on behalf of the manufacturer.
    And another was a man who was injured changing a tire when 
the tire exploded, and he brought a case against Uniroyal-
Goodrich Tire.
    And in some of these cases, and some of the other cases 
that have been mentioned during the course of the day, your 
dissent was pretty sharply criticized by those in the majority 
as--for different reasons.
    Senator Feinstein. Senator?
    Senator Edwards. Yes.
    Senator Feinstein. Not only is your time up, but just so 
everybody knows, I am really going to be strict on the time 
limit because we have two other judges to go. It is 10 minutes 
after 4 and we are going to adjourn at 5.
    Senator Edwards. Sure, that is fine. Let me get an answer 
to this question.
    In these cases, all of which you dissented in favor of 
manufacturers companies against individuals, and in some of 
these cases at least there were some pretty sharp criticism of 
your decision, your dissent, I should say, as there were in 
some of the other cases that have been mentioned in the course 
of the day. I just wondered if you can point us to any cases 
where you have been criticized by your colleagues on the court 
for having gone too far in favor of an individual, a child, a 
family, who brought a case against a defendant, a manufacturer, 
a corporation, and if you do not know--in fairness to you, I 
know you cannot remember everything sitting here today--if you 
can tell me of any today, I would appreciate that. If you 
cannot, I will give you a chance to provide that information to 
us, because I would like to see it.
    Justice Owen. One case that comes to mind, and let me talk 
about it for a minute, is the Saenz v. Fidelity, I want to say 
its Guaranty, I'm not sure. It's Fidelity something. It was a 
Worker's Compensation case. And the plaintiff ended up settling 
with the Worker's Comp carrier. And she later contended that 
she had been defrauded into entering that settlement, and she 
sued for bad faith. And the court, a majority of the court 
ended up saying, for various reasons, that she didn't have a 
bad case cause of action. I agreed with that, but I dissented 
from the case because I said she's established fraud, and under 
the law she's entitled to rescind that Worker's Comp decision 
and go back and claim her benefits and start all over again. 
And a majority of the court disagreed with me and said, no, she 
does not get to rescind, she does not get to go back and start 
all over. And I have certainly ruled for--you've named four 
cases. I can name cases where I've ruled in favor of workers, 
consumers----
    Senator Edwards. Can I interrupt you? I want to be very 
specific about, very specific cases where you have in fact been 
criticized. Some of these cases are cases where you have been 
criticized by your colleagues for going too far on one side of 
the equation.
    I am just asking now whether you can point us to cases 
where--you have just indicated one case, where I believe you 
actually ruled with the majority against the jury verdict, if I 
remember correctly, the Sands case.
    Justice Owen. That's correct, that I thought she should get 
a remand and be able to set aside the agreement and proceed 
with her cause of action.
    Senator Edwards. Let me just ask you if you can--I know my 
time is up and we need to let other people ask questions. If 
you have cases such as that, I would actually like to see them. 
I think all of us would like to see them.
    Justice Owen. You want me to find cases where my colleagues 
are criticizing--even if I--you don't care about the cases 
where I----
    Senator Edwards. Or disagreed with you, disagreed with you 
is also OK.
    Justice Owen. So if there--you just want cases--you don't 
care if I ruled for the consumer, as long as it has to be a 
case where I was criticized for doing so. Is that the question?
    Senator Edwards. No, ma'am. There are a series of cases 
where your colleagues on the court have been critical and 
strongly disagreed with what you did where you ruled for one 
side. Some of the ones I have mentioned today and some of the 
ones that have been mentioned by others.
    I am asking you are there cases on the other side of that 
equation?
    Justice Owen. Well, there are certainly cases where I ruled 
large verdicts for injured people. And I guess I don't remember 
if people criticized that or not, but we've upheld--and I've 
been part of it--upheld holding rules of law and verdicts for 
plaintiffs of significant rules of law, in statutes of 
limitations areas, of independent contractor area. I don't 
remember if they were dissents. I don't remember if I was 
criticized for doing it. But I have certainly----
    Senator Feinstein. What you are asking is that she send 
those cases to us in writing.
    Senator Edwards. Right, that is correct.
    Senator Feinstein. If you would.
    And thank you very much, Senator Edwards.
    Senator Edwards. Thank you, Madam Chair.
    Senator Feinstein. Senator Brownback?
    Senator Brownback. Thank you Madam Chairman.
    And thank you as well, Justice Owen for appearing here, and 
you have waited a long time for the hearing, 14 months, to be 
able to get in front of the Committee, so I am delighted that 
we are holding the hearing and going to be able to talk with 
you today about your qualifications, your background, and your 
service on the Circuit Court, which I hope we are able to 
affirm and move forward with.
    If I could point out one thing, just in listening to the 
last discussion on the case, I believe that was GTE v. Bruce, 
the case you were talking about. I believe in that case you 
joined a unanimous court, ruling on the court, and affirming a 
$275,000 jury verdict for the female employees that had been 
sexually harassed; is that correct?
    Justice Owen. I did. I did.
    Senator Brownback. So we are talking about a unanimous 
opinion by the court. You wrote a concurring opinion on that, 
that did hold for the female employees; is that correct?
    Justice Owen. Yes. And the reason I wrote the concurring 
opinion, again, is we had just recently issued, in the last few 
years, right in front of this case, cases involving intentional 
infliction of emotional distress in the workplace, and I was 
concerned that people would pick up GTE v. Bruce, pick up our 
prior decision and say there's an inconsistency here. How could 
you have said in these cases it's not intentional infliction of 
emotional distress, and then list the things that I listed and 
say that is. And I wanted to try to square----
    Senator Brownback. You did not want to redefine the common 
law tort. You did not want to try to redefine that.
    Justice Owen. No, I did not. I was just trying to make sure 
that I was explaining how I could square our prior decisions, 
again which were fairly recent, in the employment context, with 
the specific evidence that was in this case.
    Senator Brownback. I just did not want anybody to get the 
impression that you ruled against the females employees or held 
against their case. You held for their case.
    Justice Owen. I did, absolutely.
    Senator Brownback. You upheld a $275,000 verdict in that 
case by the plaintiffs against the defendant. Is that correct?
    Justice Owen. That's correct.
    Senator Brownback. I think that is important because we 
sometimes lose it in the factual setting, that somehow you did 
not find this bad behavior. You did, and you agreed with the 
court that this was illegal, wrongful behavior and that jury 
verdict should be upheld, and I think that is important for us 
to get clear.
    Another thing I want to go to, because a lot of the outside 
groups that really try to derail nominations in this town and 
pick apart people's records who are very well qualified, and 
you certainly are well qualified for this position, is the 
parental notification Texas law, and we visited this a couple 
times today. But I just want to make sure that I am clear and 
that we are all clear on this.
    The only cases that got appealed on up to the Texas Supreme 
Court were those where the judicial review had been denied. In 
other words, the easier cases were taken at the lower court, 
and at the lower court, if a girl had come forward, wanted an 
abortion, wanted not to have her parents informed, the court 
had already ruled yes, you can do that. The only cases that 
were appealed were the ones where that had been denied. Is that 
correct?
    Justice Owen. That's correct. If either the Trial Court or 
the intermediate court granted the bypass, that was the end of 
it.
    Senator Brownback. So if the judicial bypass was granted, 
motions granted, it moves on forward. And if I understand your 
numbers correctly, about 600 of those were done at the lower 
court level in the time period we have been talking about in 
your service in the Texas Supreme Court.
    Justice Owen. We know that at least 650 bypass proceedings 
have occurred. There may be a lot more. We just don't know. But 
we know at least that many bypass proceedings have occurred.
    Senator Brownback. Where the court ruled that the girl did 
not have to inform he parents to obtain the abortion; is that 
correct?
    Justice Owen. Well, we don't know because they're 
confidential, so we don't know the outcome. Out of the 650, 
only 10 girls have appealed to my court.
    Senator Brownback. So somewhere in there, but out of 650, 
10 were appealed to the Texas Supreme Court where judicial 
bypass had been denied?
    Justice Owen. That's correct.
    Senator Brownback. And it was a requirement that it had to 
have been denied. So you had 10 cases that got in front of you 
of 650. So you are looking at a small percentage. You are 
looking at less than 2 percent of the cases that get to the 
Texas Supreme Court.
    And in those 10 cases, now, how did you rule; what was your 
opinion on the 10? Do you recall how you split on those?
    Justice Owen. Yes, I do. The first Jane Doe came to our 
court twice, Jane Doe 1. The first time that she came, I agreed 
with the majority of the court--everybody on the court actually 
agreed that she did not meet the statutory standard. But I 
agreed with the majority of the court was because ``mature and 
sufficiently well informed'' was such a loose definition, and 
trial courts could apply it. That could mean so many different 
things to so many different trial courts that we needed to put 
some parameters on it. And because she didn't have the benefit 
of that, she should be remanded to the trial court and get 
anther--have another hearing.
    So if the trial court had granted her a bypass on the 
remand, I would never have seen the case again. The trial court 
denied the bypass again. The Court of Appeals again denied it. 
And the second go-round I said it was a close call, but I 
looked at the record, and under our evidentiary standards I 
said there's some evidence to support what the trial court did, 
so I would have denied it and the majority granted it.
    Doe 2. I voted with the majority to remand it for the same 
types of reasons, only this time it was a best interest issue. 
We don't know what happened to Doe 2. We never heard from her 
again.
    Doe 3. I voted to deny the bypass.
    Doe 4. I agreed with the majority of the court that she did 
not meet the statutory standard.
    And then Doe 10, which was the last Doe to come to our 
court, I agreed unanimously--or the court did, that she was 
entitled to the bypass as a matter of law. And I think I've 
mentioned this before today, that there were five other Does 
that came in between Doe 4 and Doe 10, where the court did not 
write an opinion. We affirmed the lower judgment of the courts, 
and as I explained, it takes at least six voted to do that. No 
dissents were published or were noted. If they had been noted, 
we would have had to have wound up and said, who vote which 
way?
    But I think it's a fair inference, given our opinions on 
either side of those five Doe cases, that these probably 
weren't close cases or somebody would have written something.
    Senator Brownback. Because of the ten cases, these were 
already 10 cases where two courts, the trial court and the 
appellate court had already voted, already ruled to deny 
judicial bypass. So they had said, no, you cannot bypass your 
parents. Two courts had already ruled that in these 10 cases; 
is that correct, in all 10 of the cases?
    Justice Owen. Correct, in all of them, yes.
    Senator Brownback. And then in the 10 that came to you, and 
on to the Texas Supreme Court, you and the court split on some 
of these cases and voted to remand to the lower court, to look 
at again to see if they should grant the judicial bypass, and 
in a majority of the cases you agreed with the lower two courts 
in essence that a judicial bypass should not be granted. Would 
that be a correct characterization of the----
    Justice Owen. That's correct, and I believe that out of the 
12 cases, I had a different view of the judgment than the 
majority did in 3 cases, so I was with the majority I guess 
that means 9 out of 12 times in terms of the judgment.
    Senator Brownback. Just it seems to me, to make something 
about this in your record as being outside the philosophical 
mainstream is really a far stretch, where you have 600 some 
cases, 10 that have been ruled against a judicial bypass at two 
lower courts, and then it comes in front of you, and the court 
splits and you vote with the majority most of the time, and 
some of the cases are remanded for this reconsideration. Others 
are not. It just seems to striking that this would somehow say 
that you should be set apart on the issue of abortion, when you 
are interpreting the law in tough cases, is what these cases 
amounted to, and I would hope that my colleagues would look at 
the factual setting here and how you have ruled, I think very 
common sense and very broad-based and non-ideologically in 
these cases. Some cases you voted to remand, for it to be 
looked at again for judicial bypass, to other cases not. I 
think that is a very fair-minded way on your part.
    Let me just say, Justice, I thank you for putting yourself 
through this process. You are extraordinarily qualified for 
this position. And to wait for the 14 months that you have, and 
then go through having narrow points on cases picked apart and 
your record maligned, abused, and then trying to somehow to 
point you out as an ideologue in any instance is totally unfair 
to you and something you did not need to go through, and could 
have remained absent from, but yet you have gone ahead and 
submitted yourself to this process to be able to serve the 
public, and I appreciate you doing that. You did not have to do 
that. A lot of people do not like going through these sort of 
process, and I do not blame them. But thank you for staying in 
here and staying in the process. And I think you are going to 
make an outstanding Circuit Court Judge. I hope we can move 
this on through the Committee process and through the floor.
    Thank you, Madam Chairman.
    Senator Feinstein. Thank you, Senator.
    Senator Cantwell?
    Senator Cantwell. Thank you, Madam Chair.
    And thank you, Justice Owen, for your time today and 
patience in answering these many questions.
    I think several of my colleagues have brought up the 
specific issues relating to some of your decisions on parental 
consent. And I think some of my colleagues have also posed 
broader questions on the issue of privacy. But I am hoping that 
I can expound a little bit on and understand your judicial 
philosophy on these important issues. I think the issues of 
privacy are growing in magnitude in our country. Whether it is 
government intrusion in personal decisions, or government 
acquiring information about activities of American citizens, or 
businesses handling some of your most personal information, 
this issue is just growing in magnitude. So understanding your 
broad philosophy on this is, I think, very helpful for this 
Committee and for the Congress.
    My first question is really about your general thoughts on 
the right to privacy. Do you believe that that right exists in 
the Constitution, and where you think that right to privacy 
does exist in the Constitution?
    Justice Owen. Well, of course, I'm guided by the U.S. 
Supreme Court cases that have recognized the right to privacy. 
I think Griswold is one we discussed earlier that clearly 
recognizes that. And there are cases from my court that 
construe the Texas Constitution as having a right to privacy.
    Senator Cantwell. I am asking you whether--we have had lots 
of nominees come before the Committee, who have recited the 
same things about following precedent and the recognition in 
various decisions. But after being confirmed, they have not 
followed those exact decisions or interpretations. That is why 
I am asking the broader question of whether you believe that 
the Constitution guarantees a right to privacy.
    Justice Owen. Well, I think--that's the law of the land, 
and there's nothing in my personal beliefs at all that would 
keep me from understanding and applying that law.
    Senator Cantwell. And where do you think that exists within 
the Constitution?
    Justice Owen. I wish I--because I do not want to misstep 
here, I would like to have some of the U.S. Supreme Court 
precedent in front of my on that particular issue because that 
is just--I don't want to--that's not a question I would answer 
as a judge off the cuff if I were deciding a case. I would 
certainly go pull the U.S. Supreme Court precedent. I would 
pull the Constitution. I would sit down and read it, and then 
give an answer.
    Senator Feinstein. Senator, if you will excuse me just for 
a moment, was not your question, does the Supreme Court 
guarantee a right to privacy?
    Senator Cantwell. My question was about the Constitution.
    Senator Feinstein. I mean the Constitution guarantee a 
right to privacy?
    Senator Cantwell. Yes.
    Senator Feinstein. You cannot answer that yes or no?
    Justice Owen. Well, yes, clearly it does. The U.S. Supreme 
Court has said it does. That's been the law for a long, long 
time. I thought that she was asking me specifically, can you 
tell me where that is derived from, the specific language----
    Senator Cantwell. I am asking whether you believe that 
there exists such a right to privacy in the Constitution, 
because in interpreting these cases--and I will follow up with 
some of your other cases and comments--that is the issue. We 
are trying to find out whether you will follow precedent, and 
obviously in a variety of cases you have dissented, and 
dissented in such a way that it has left a question mark, at 
least in my mind, and I think perhaps some of my colleagues. 
Questions as to why you dissented and some of the issues that 
you brought into the dissent.
    So this particular issue,--we have had nominees who have 
said that they believe in upholding a woman's right to choose, 
and then when it came to major decisions, went in an opposite 
direction.
    That is why I am trying to understand your personal belief 
in this right.
    Justice Owen. Well, again, I don't let my personal views 
get into it, but I very clearly pointed out at several 
junctures, particularly in my Doe 1 case, that there is a right 
to choose recognized by the U.S. Supreme Court. It applies to 
minors, that you cannot prevent a minor from going to court 
without the knowledge of her parents to get a judicial bypass. 
I pointed out that I had concerns about some of the Texas 
Family Code Provisions in the divorce context, when a minor--a 
parent would be required to notify another parent under a 
divorce decree, that that might lead to some of the problems 
under the sexual, physical or emotional abuse. I said that that 
would probably be unconstitutional. I think I had clearly 
demonstrated that I have thought about the U.S. Supreme Court 
decisions and how they apply in this context, and also how they 
might apply under other Texas laws that impact this area, and 
that I am willing and able to follow it.
    Senator Cantwell. Well, let us go specifically to the Doe 
cases. I am sorry, I do not know exactly--what you said earlier 
about the Doe cases. In Doe 1, you wrote that a woman seeking a 
judicial bypass should demonstrate that she has considered 
philosophical, social, moral and religious arguments that can 
be brought to bear when considering abortion. And that you were 
following the decision of the Supreme Court in Casey. However, 
in Casey the court ruled that states can enact rules designed 
to encourage a woman to know that there are philosophical and 
social arguments of great weight that can be brought to bear in 
considering an abortion, but there is never any mention of 
religious implications.
    Justice Owen. That is in H.L. v. Matheson. The reference to 
religion is in H.L. v. Matheson. I think they said--I can give 
you the cite, but they talked about--let me see if I can read 
it here for you, that that was a factor that they said that 
there are religious concerns. Let's see. ``As a general 
proposition that such consultation''----
    Senator Cantwell. That is not in Casey.
    Justice Owen. It is in the U.S. Supreme Court decision H.L. 
v. Matheson. In my opinion, these were--I hope you understand, 
were drafted fairly quickly. I did cite H.L. Matheson in my Doe 
1 decision, not on this point. I cited Casey and I cited the 
second decision in City of Akron. And I cited Matheson on 
another point, but in Matheson they talk about that for some 
people it raises profound moral and religious concerns, and 
they're talking about the desirability or the State's interest 
in these kinds of considerations in making an informed 
decision. They don't say you have to have religious beliefs, 
and I don't for a minute advocate that. The only point I was 
making----
    Senator Cantwell. There was also a detail in your Doe I 
dissent that basically said that you did not think that a 
physician would be the person who could give that kind of input 
or advice to a woman. So I think you can see our concern. You 
are dissenting in these decisions about a major issue of 
privacy, and you are injecting, where others on the court did 
not, this issue of religion. On parental notification, I mean 
these laws have been fought and passed by legislatures with an 
eye to the extreme cases. Obviously, we have talked about the 
abuse issues, but now we are saying to a young woman that she 
has to sit down, not with her doctor, but some religious 
leader, and have an explanation about this issue before she is 
going to have the ability to get the approval to proceed 
without parental notification.
    Justice Owen. Well, let me make sure that we're talking 
about the same thing. If there's abuse, this all goes out the 
window. It's a separate ground. You don't----
    Senator Cantwell. Say it is two 18-year-old cousins.
    Justice Owen. I am sorry?
    Senator Cantwell. Say it is two 18-year-old cousins.
    Justice Owen. Well, 18-year-olds are not covered by the 
statute. Oh, you mean that she is consulting. Again, the U.S. 
Supreme Court has talked about getting counseling from a 
qualified source, and it was not me, but Justice White----
    Senator Cantwell. What if I am not religious?
    Justice Owen. I am not saying you have to get religious 
counseling. I never advocated that.
    Senator Cantwell. Well, who delivers the counseling?
    Justice Owen. I have advocated that you have the have 
religious counseling. What the U.S. Supreme Court said, and 
what I followed, what I agreed was a part of the definition of 
information, that it is not just information about the physical 
impact on the girl or the physical risks. And what Justice 
O'Connor wrote for the Court was that there are profound--and 
that's her word, not mine--philosophical and moral and other 
considerations that go into an informed choice, as in the----
    Senator Cantwell. That is exactly right, and that is where 
in your dissent, you threw in the word ``religious 
considerations.'' So I am trying to figure out----
    Justice Owen. That came from H.L. v. Matheson.
    Senator Cantwell. And you believe that religious 
consideration it should be a required factor. If you were the 
majority how would the statute have been implemented?
    Justice Owen. It would have been implemented the that girl 
who is seeking an abortion should indicate to the trial court 
an awareness that there are arguments and issues. She doesn't 
have to agree with any of them. She doesn't have to explain 
what her philosophy is. She doesn't have to rationalize or 
justify her philosophy or her moral code or her religion if she 
has any.
    But all that I said was, in what I think is a fair reading 
of what Justice O'Connor said, is we're talking about awareness 
that there are arguments out there on both sides, 
philosophical, moral, and in H.L. v. Matheson arguments, 
religion. If she doesn't have religious, that's no business of 
the courts. The only question is, if she does, has she thought 
about her own beliefs. Is she aware of the philosophical 
debate, the moral debate? Just the issues, not--she doesn't 
have to get into does she agree with them, and debate it with 
the judge, but simply is she aware----
    Senator Cantwell. Is the doctor capable of giving that 
advice or not?
    Justice Owen. I think it depends. I think it depends. I 
think it depends on--I'm not sure she has to identify where she 
got--where she obtained her understanding of the philosophical 
and other issues. That doesn't necessarily have to be from a 
counselor. As long as she exhibits an understanding of it. I 
think she may need a counselor to give her some helps on her 
options, the physical risks, that sort of thing. But I'm not 
advocating that she have any particular set of values or morals 
or religious beliefs.
    Senator Cantwell. Madam Chair, I see my time has expired. 
So I do not know if we are going, on----
    Senator Feinstein. Do you have one more question, because 
this will be the last question.
    Senator Cantwell. I do, just quickly.
    Justice Owen, obviously, if you are confirmed to the Fifth 
Circuit, you will be responsible for determining when a law is 
in fact the types an undue burden on a woman's right to choose. 
Given your record in this area, you know, I have some questions 
about your ability to recognize when a statute impinges on the 
right to privacy, particularly given some of the laws that are 
still on the books in the Fifth Circuit. So I guess I am asking 
you, do you believe that you really have the ability to 
recognize what the Court recognized in Casey, that there are 
some law that can prevent a woman from obtaining abortion just 
as surely if abortion were outlawed. Do you think you are going 
to be able to recognize that?
    Justice Owen. Senator, I do. I would point to you again 
other places in my Doe 1 decision, where I have recognized that 
in some situations even a notification statute can amount to a 
consent statute but it is because of the particular girl's 
situation, and I quote the Supreme Court on that.
    As I pointed out, I expressed concern about the impact, the 
undue burden on a minor's right to choose that might occur 
because of particular provisions in our family code that deal 
with divorce decree. So, yes, I do believe that I can apply 
Casey and Akron and the other decisions of the U.S. Supreme 
Court, I believe faithfully.
    Senator Cantwell. Thank you.
    Thank you, Madam Chairman.
    Senator Feinstein. Justice Owen, believe it or not, this is 
going to come to an end, and you have held up very well, and I 
want to say the audience has held up very well. I did not note 
anybody going to sleep. And we have two additional judges to 
do, so I am going to excuse you and thank you very much.
    Justice Owen. Thank you.
    Senator Feinstein. And ask the two other judges to please 
come forward, and those leaving the room, if you could do so 
quietly, we would be very appreciative.
    Justice Owen. Thank you, Senator Feinstein, very much.
    [The biographical information for Justice Owen follows.]

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    Senator Hatch. Madam Chairman, can I put some more material 
in the record?
    Senator Feinstein. Yes, certainly.
    Senator Hatch. Thank you. And others as well.
    Senator Feinstein. Yes. The record will remain open for 1 
week.
    Timothy John Corrigan and Jose Expedicto Martinez, if you 
would raise your right hand and affirm the oath when I complete 
its reading.
    Do you swear that the testimony that you are about to give 
before the Committee will be the truth, the whole truth and 
nothing but the truth, so help you God?
    Judge Corrigan. I do.
    Mr. Martinez. I do.
    Senator Feinstein. Please have a seat. Let me begin by 
apologizing to you for the long delay. And I hope you do not 
mind the fact that you are last, but if we could have a brief 
statement from each one of you, I should tell you that you are 
noncontroversial, which means this should go very quickly. So 
why do we not hear from you Judge Corrigan?

  STATEMENT OF TIMOTHY J. CORRIGAN, OF FLORIDA, NOMINEE TO BE 
       DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Corrigan. Thank you, Madam Chair. I do not have an 
opening statement. I will be happy to respond to questions.
    If it would be appropriate for me to introduce the people 
with me today, I would like to do that.
    Senator Feinstein. It certainly would.
    Judge Corrigan. I have with me the Honorable Elizabeth 
Kovachevich, who is the Chief Judge of the United States 
District Court for the Middle District of Florida. My wife 
Nancy Corrigan is with me. I am proud that my sons, Brian and 
Kevin Corrigan, are with me here today; my sister Mary Pat 
Corrigan. And then my law clerk, Susanne Weisman, and my former 
clerk Frances McLaughlin-Keegan are here today.
    And thank you, Madam Chair.
    Senator Feinstein. Thank you very much, and I apologize to 
them for having to wait so long, but in a way you are lucky.
    [Laughter.]
    Senator Feinstein. Mr. Martinez, might we hear from you?

    STATMENT OF JOSE E. MARTINEZ, OF FLORIDA, NOMINEE TO BE 
      DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA

    Mr. Martinez. Yes, Senator. I have no opening statement, 
but I would also like to introduce my wife, Mary Anne Martinez 
is here; my daughter Anne-Marie Martinez, my other daughter Jan 
Vair and her husband Jonathan Vair were here earlier, but they 
had to go catch a plane. And my granddaughter, Elizabeth Ann, 
was here also, but she had more important things to do; she had 
to take a nap. So they left, and they are on the way to the 
airport.
    I also have present here today my daughter's mother-in-law, 
Betty Vair, and my friends, Jim Oliff and Rich Richards. And I 
think that is all. Everybody else has left.
    Senator Feinstein. Thank you. Mr. Martinez, since you are 
speaking at the moment, why do I not begin with you. You have 
worked as a general litigator in private practice for more than 
30 years, and I am sure that your litigation experience will 
serve you well if you are confirmed as a District Court Judge. 
Please tell the Committee what you think will be the most 
challenging aspect of making the transition from being a 
litigator to being a Federal District Court Judge if confirmed?
    Mr. Martinez. Well, I think the most difficult thing would 
be the case management aspect of it because I have no 
experience doing that, but I fully intend to find out who in 
the Southern District is the best at doing that, go to them, 
freely pick their brain, and try to get as much information as 
I can, try to get whatever system works the best for them and 
utilize it until I can gain enough experience to modify it in a 
way that makes sense for me.
    Senator Feinstein. Now, you have had general litigation 
practice, as I said, for 30 years, and you have specialized in 
product liability litigation.
    Mr. Martinez. Yes, ma'am.
    Senator Feinstein. Given your experience advising and 
defending corporations in product liability suits, what are 
your views on tort reform efforts, for example, efforts to cap 
non-economic and punitive damages, or to limit the civil and 
criminal liability of certain groups such as State Governments?
    Mr. Martinez. When I was representing those particular 
companies, I was totally in favor of all of those things. But I 
do understand both sides of the issue, and I think I have an 
open mind as to the viability of some of those issues. I could 
be an advocate for either side, but I believe that I am smart 
enough to understand that there are both sides to an issue, and 
I can take either side equally well, and I think that I will do 
the right thing and the fair thing.
    I have no particular opinion because I have never actually 
been involved in either presenting or pushing any of the 
reforms. I was never at that level.
    Senator Feinstein. Do you believe there is a constitutional 
right to privacy?
    Mr. Martinez. I think that it is well established in the 
United States that there is a constitutional right to privacy.
    Senator Feinstein. Thank you.
    Judge Corrigan, you have written several articles 
concerning court ordered sanctions against lawyers and parties 
that pursue frivolous claims and argument. Please share your 
view on such sanctions, and explain how you would determine 
whether to impose sanctions in a particular case if confirmed?
    Judge Corrigan. Well, if I was fortunate enough to be 
confirmed, Madam Chair, I have, as a Magistrate Judge now for 
the last 5-\1/2\ years, had to deal with this issue of 
sanctions, and I do think that sanctions have a place. However, 
I think they are not certainly the first resort of the court. 
The court needs to consider everyone's claim on its merit, but 
in a given case, if sanctions are required, I think it needs to 
be done on a sliding scale depending upon the severity of the 
conduct and how repetitious the conduct is.
    Senator Feinstein. Thank you. Now, you have been nominated 
to fill a seat that has been vacant since its creation nearly 3 
years ago. It has been designated a judicial emergency vacancy, 
and it has been pending for 950 days. If confirmed, what steps 
will you take to handle the anticipated backlog of cases that 
you are obviously going to face, and to promptly address those 
cases that come before you? In other words, how are you going 
to handle this large docket?
    Judge Corrigan. Well, Madam Chair, fortunately, as a 
Magistrate Judge in the same district, I have a intimate 
familiarity with the caseload. I have been handling my own 
caseload now as a magistrate judge, and so I am familiar with 
the caseload. And I do--as a District Judge, of course, I would 
have more primary responsibility for case management, and I 
have given that some thought, and I have some ideas in terms of 
early case management and other devices that I think would be 
helpful to me in addressing the caseload, but I do feel 
comfortable in that because it is the same court that I am 
currently working with at this time.
    Senator Feinstein. Thank you.
    Mr. Martinez, how strongly should judges bind themselves to 
the doctrine of stare decisis, and does the commitment to stare 
decisis vary depending on the court?
    Mr. Martinez. Well, depending on the level of the court. I 
believe that a trial judge has total reliance upon stare 
decisis. We do not make the appellate decisions that we are 
bound by. We follow those appellate decisions, and 
consequently, it is total in the case of a trial judge.
    Senator Feinstein. Would you like to comment on that 
question, Mr. Corrigan?
    Judge Corrigan. Yes, Madam Chair. I agree, and again, as a 
magistrate judge, I am every day applying binding precedent of 
both the Supreme Court and the Eleventh Circuit of Appeals, 
which is where I happen to come from, and so I am very 
accustomed to respecting the superior courts in my 
jurisdiction, and I think that is a vital--it is vital to our 
rule of law that that be--that stare decisis be followed.
    Senator Feinstein. Now I am going to ask you both the same 
question. In the past few years the Supreme Court has struck 
down a number of Federal statutes, most notably several 
designed to protect the civil rights and prerogatives of our 
more vulnerable citizens. And they struck them down as beyond 
Congress's power under Section 5 of the 14th Amendment. The 
Supreme Court has also struck down a statute as being outside 
the authority granted to Congress by the Commerce Clause. These 
cases have been described as creating new power for State 
Governments as Federal authority is being diminished.
    At the same time, the Court has issued several decisions, 
most notably in the environmental arena, granting States 
significant new authority over the use of land and water 
despite longstanding Federal regulatory protection of the 
environment.
    Taken individually, these cases have raised concerns about 
the limitations imposed on congressional authority. Taken 
collectively, they appear to reflect a new federalism crafted 
by the Supreme Court that threatens to alter fundamentally the 
structure of our Government.
    What is your view of these developments?
    Judge Corrigan. Madam Chair, of course, as a trial judge, 
it would be my duty to follow the binding decisions of the U.S. 
Supreme Court, and while I recognize that there are those in 
Congress who differ with those decisions, it would be my duty 
and responsibility to follow them until and unless they were 
changed. And so I have no particular view apart from my duty to 
apply binding Supreme Court precedent.
    Mr. Martinez. I am only generally familiar with this area 
of the law because it is not something that comes up on a 
general basis when you're doing product liability defense, but 
I am familiar enough with it to obviously agree with Judge 
Corrigan. We have the responsibility of following the law as it 
is presented to us. We understand that Acts of Congress are 
presumed to be constitutional. If Congress wishes to change 
that, it is your prerogative, but at the present time we would 
have to follow whatever the law is as it is presented to us.
    Senator Feinstein. This is going to be a very short 
hearing. I want to thank you for putting up with what has been 
a very long day, and your reward is that I am going to adjourn 
the hearing.
    And I thank your families and your friends for being here, 
and you as well.
    Judge Corrigan. Thank you, Madam Chair.
    Mr. Martinez. Thank you, Madam Chair.
    [The biographical information of Judge Corrigan and Mr. 
Martinez follow.]

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    Senator Feinstein. Thank you very much, and this hearing is 
adjourned.
    [Whereupon, at 4:56 p.m., the committee was adjourned.]
    [Question and answers and submissions for the record 
follows.]

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