Text: S.Hrg. 111-695 — CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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[Senate Hearing 111-695, Part 6]
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                                                 S. Hrg. 111-695, Pt. 6
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                  APRIL 22, APRIL 28, and MAY 13, 2010

                               ----------                              

                                 PART 6

                               ----------                              

                           Serial No. J-111-4

                               ----------                              

         Printed for the use of the Committee on the Judiciary

































             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
























                                                 S. Hrg. 111-695, Pt. 6

             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                  APRIL 22, APRIL 28, and MAY 13, 2010

                               __________

                                 PART 6

                               __________

                           Serial No. J-111-4

                               __________

         Printed for the use of the Committee on the Judiciary



                               ----------

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
             Brian A. Benzcowski, Republican Staff Director
































                            C O N T E N T S

                              ----------                              

                        THURSDAY, APRIL 22, 2010
                    STATEMENTS OF COMMITTEE MEMBERS

Kaufman, Hon. Edward E., a U.S. Senator from the State of 
  Delaware.......................................................     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   114
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, prepared statement.......................................   117

                               PRESENTER

Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware 
  presenting Leonard Stark, Nominee to be U.S. District Judge for 
  the District of Delaware.......................................     2
Kaufman, Hon. Edward E., a U.S. Senator from the State of 
  Delaware for Senator Schumer presenting Raymond J. Lohier, Jr., 
  Nominee to be U.S. Circuit Judge for the Second Circuit........     5

                       STATEMENTS OF THE NOMINEES

Lohier, Raymond J., Jr., Nominee to be U.S. Circuit Judge for the 
  Second Circuit.................................................     6
    Questionnaire................................................     8
Stark, Leonard, Nominee to be U.S. District Judge for the 
  District of Delaware...........................................    49
    Questionnaire................................................    50

                         QUESTIONS AND ANSWERS

Responses of Raymond J. Lohier, Jr., to questions submitted by 
  Senators Coburn and Sessions...................................    98
Responses of Leonard Stark to questions submitted by Senators 
  Coburn and Sessions............................................   104

                       SUBMISSION FOR THE RECORD

Cottrell, Frederick L., III, Richards Layton & Finger, 
  Wilmington, Delaware, March 23, 2010, letter...................   110
Dunne, Cafey R., Chair, New York City Bar, New York, New York, 
  May 26, 2010, letter...........................................   111
Gillibrand, Hon. Kristen E., a U.S. Senator from the State of New 
  York, prepared statement.......................................   112
                              ----------                              

                       WEDNESDAY, APRIL 28, 2010
                    STATEMENTS OF COMMITTEE MEMBERS

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   383
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..   119
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   384
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   125

                               PRESENTERS

Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut presenting Robert N. Chatigny, Nominee to be U.S. 
  Circuit Judge for the Second Circuit...........................   119
Lieberman, Hon. Joseph I., a U.S. Senator from the State of 
  Connecticut presenting Robert N. Chatigny, Nominee to be U.S. 
  Circuit Judge for the Second Circuit...........................   121
Warner, Hon. Mark R., a U.S. Senator from the State of Virginia 
  presenting John A. Gibney, Nominee to be U.S. District Judge 
  for the Eastern District of Virginia...........................   124
Webb, Hon. Jim, a U.S. Senator from the State of Virginia 
  presenting John A. Gibney, Nominee to be U.S. District Judge 
  for the Eastern District of Virginia...........................   122

                       STATEMENTS OF THE NOMINEES

Chatigny, Robert N., Nominee to be U.S. Circuit Judge for the 
  Second Circuit
    Questionnaire................................................   153
Gibney, John A., Nominee to be U.S. District Judge for the 
  Eastern District of Virginia
    Questionnaire................................................   251

                         QUESTIONS AND ANSWERS

Responses of Robert N. Chatigny to questions submitted by 
  Senators Coburn, Cornyn, Grassley and Sessions.................   302
Responses of John A. Gibney to questions submitted by Senators 
  Coburn and Sessions............................................   364

                       SUBMISSION FOR THE RECORD

Apter, Ronald S., Assistant U.S. Attorney, District of 
  Connecticut, Hartford Financial Services Group, Inc., Hartford, 
  Connecticut; Califano, Mark G., Assistant U.S. Attorney, 
  District of Connecticut, GE Capital Corp, Norwalk, Connecticut; 
  Michael G. Considine, Assistant U.S. Attorney, Eastern District 
  of New York, Day Pitney LLP, Stamford, Connecticut; Thomas V. 
  Daily, Assistant U.S. Attorney, District of Connecticut, Reid 
  and Riege, P.C., Hartford, Connecticut; James K. Filan, Jr., 
  Assistant U.S. Attorney, District of Connecticut, Pepe & Hazard 
  LLP, Southport, Connecticut; Andrew P. Gaillard, Assistant U.S. 
  Attorney, District of Connecticut, Day Pitney LLP, Stamford, 
  Connecticut; Gates Garrity-Rokous, Assistant U.S. Attorney, 
  District of Connecticut, GE Capital Corporation, Norwalk, 
  Connecticut; Glasser, James I., Assistant U.S. Attorney, 
  District of Connecticut, Wiggin and Dana LLP, New Haven, 
  Connecticut; Marc J. Gottridge, Assistant U.S. Attorney, 
  Southern District of New York, Lovells LLP, New York; Ethan 
  Levin-Epstein, Assistant U.S. Attorney, Eastern District of New 
  York, First Assistant U.S. Attorney, District of Connecticut, 
  Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C., 
  New Haven, Connecticut; Walter P. Loughlin, Assistant U.S. 
  Attorney, Southern District of New York, K&L Gates, New York; 
  Stephen V. Manning, Assistant U.S. Attorney, District of 
  Connecticut, O'Brien, Tanski & Young, LLP, Hartford 
  Connecticut; Joseph W. Martini, Assistant U.S. Attorney, 
  District of Connecticut, Wiggin and Dana LLP, New Haven, 
  Connecticut; Jeffrey A. Meyer, Assistant U.S. Attorney, 
  District of Connecticut, Associate Professor, Quinnipiac 
  University School of Law, Hamden, Connecticut; Alfred U. 
  Pavlis, Assistant U.S. Attorney, Southern District of New York, 
  Daly & Pavlis, Southport, Connecticut; H. James Pickerstein, 
  Assistant U.S. Attorney, District of Connecticut, U.S. 
  Attorney, District of Connecticut, Chief Assistant United 
  States Attorney, District of Connecticut, Pepe & Hazard LLP, 
  Southport, Connecticut; Brian E. Spears, Assistant U.S. 
  Attorney, District of Connecticut, Levett Rockwood P.C., 
  Westport, Connecticut, April 27, 2010, joint letter............   370
Connecticut Law Tribune, Douglas S. Malan, article,..............   374
Golub, David S., Silver Golub & Teitell LLP, Stamford, 
  Connecticut, September 23, 2005, letter and Affidavit..........   377
O'Hare, Michael E., Supervisory Assistant State's Attorney, 
  Office of the Chief State's Attorney, Rocky Holl, Connecticut, 
  March 5, 2010..................................................   387
Nevas, Alan H., U.S. Attorney, District of Connecticut, U.S. 
  District Judge, District of Connecticut; Kevin J. O'Connor, 
  U.S. Attorney, District of Connecticut, U.S. Associate Attorney 
  General; Stanley A. Twardy, Jr., U.S. Attorney, District of 
  Connecticut, April 16, 2010, letter............................   399
Stewart, Elizabeth J., Murtha Cullina LLP, Attorneys at Law, and 
  David N. Rosen, March 15, 2010, letter and attachment..........   401
Webb, Hon. Jim, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   411
U.S. District Court, District of Connecticut, Hartford, 
  Connecticut, court report......................................   413
                              ----------                              

                         THURSDAY, MAY 13, 2010
                    STATEMENTS OF COMMITTEE MEMBERS

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................   447
    Prepared statement...........................................  1048
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1095
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   758

                               PRESENTERS

Feingold, Hon. Russ, a U.S. Senator from the State of Wisconsin, 
  presenting Scott M. Matheson, Jr., Nominee to be U.S. Circuit 
  Judge for the Tenth Circuit....................................   457
Franken, Hon. Al, a U.S. Senator from the State of Minnesota, 
  presenting Susan Richard Nelson, Nominee to be U.S. Circuit 
  Judge for the District of Minnesota............................   458
Hatch, Hon. Orrin, a U.S. Senator from the State of Utah, 
  presenting Scott M. Matheson, Jr., Nominee to be U.S. Circuit 
  Judge for the Tenth Circuit....................................   449
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota, 
  presenting Susan Richard Nelson, Nominee to be U.S. District 
  Judge for the District of Minnesota............................   455
Mikulski, Hon. Barbara, a U.S. Senator from the State of 
  Maryland, presenting Ellen Lipton Hollander, Nominee to be U.S. 
  District Judge for the District of Maryland and James K. 
  Bredar, Nominee to be U.S. District Judge for the District of 
  Maryland.......................................................   451
Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island, 
  presenting John J. McConnell, Jr., Nominee to be U.S. District 
  Judge for the District of Rhode Island.........................   452
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island, presenting John J. McConnell, Jr., Nominee to be U.S. 
  District Judge for the District of Rhode Island................   454

                       STATEMENTS OF THE NOMINEES

Bredar, James K., Nominee to be U.S. District Judge for the 
  District of Maryland...........................................   584
    Questionnaire................................................   585
Hollander, Ellen Lipton, Nominee to be U.S. District Judge for 
  the District of Maryland.......................................   644
    Questionnaire................................................   646
Matheson, Scott M., Jr., Nominee to be U.S. Circuit Judge for the 
  Tenth Circuit..................................................   460
    Questionnaire................................................   461
McConnell, John J., Jr., Nominee to be U.S. District Judge for 
  the District of Rhode Island...................................   529
    Questionnaire................................................   531
Nelson, Susan Richard, Nominee to be U.S. District Judge for the 
  District of Minnesota..........................................   708
    Questionnaire................................................   709

                         QUESTIONS AND ANSWERS

Responses of James K. Bredar to questions submitted by Senators 
  Sessions, Grassley and Coburn..................................   780
Responses of Ellen Lipton Hollander to questions submitted by 
  Senators Sessions, Grassley and Coburn.........................   790
Responses of Scott M. Matheson to questions submitted by Senators 
  Sessions, Grassley, Kyl and Coburn.............................   801
Responses of John J. McConnell, Jr., to questions submitted by 
  Senators Sessions, Grassley, Kyl, Cornyn and Coburn............   828
Responses of Susan Richard Nelson to questions submitted by 
  Senators Sessions, Grassley and Coburn.........................  1034

                       SUBMISSION FOR THE RECORD

Avedisian, Scott, Mayor, City of Warwick, Warwick, Rhode Island, 
  May 7, 2010, letter............................................  1043
Baldwin, Barbara F., Providence, Rhode Island, February 23, 2009, 
  letter.........................................................  1044
Bishop, Brian, Director of the Founders Project and Bill Felkner, 
  President and Founder, Ocean State Policy Research Institute, 
  Providence, Rhode Island, June 16, 2010........................  1045
Chamness, Charles, President & CEO, National Association of 
  Mutual Insurance Companies, Washington, DC, December 17, 2010, 
  letter.........................................................  1057
Columbus, Curt, Artistic Director, Trinity Repertory Company, 
  Providence, Rhode Island, December 29, 2008, letter............  1058
Corley, Richard K., Corley & Associates, Providence, Rhode 
  Island, March 3, 2009, letter..................................  1060
DeRentis, James V., Executive Vice President & Chief Business 
  Officer, BankRI, January 25, 2009, letter......................  1063
Diaz, Grace, Rhode Island State Representative District 11, 
  Providence, Rhode Island, January 13, 2009, letter.............  1064
Esserman, Colonel Dean M., Chief of Police, Providence Police 
  Department, Providence, Rhode Island, May 7, 2010, letter......  1065
Fisher, D. Michael, Circuit Judge, U.S. Court of Appeals for the 
  Third Circuit, Pittsburgh, Pennsylvania, May 11, 2010, letter..  1067
Foulkes, William G., Providence, Rhode Island, January 27, 2009, 
  letter.........................................................  1069
Gerhardt, Michael, and Doree Goodman, Warren, Rhode Island, 
  February 27, 2009, letter......................................  1070
Grady, Meghan, MPA, and Kimberly Ahem, Providence, Rhode Island, 
  February 23, 2009, letter......................................  1072
Greater Providence Chamber of Commerce, Providence, Rhode Island, 
  statement......................................................  1073
Gregorie, Christine O., Governor, State of Washington, Olympia, 
  Washington, December 12, 2008, letter..........................  1074
Gross, Teny Oded, Executive Director, Institute for the Study & 
  Practice of Nonviolence, Providence, Rhode Island, December 12, 
  2008, letter...................................................  1075
Hamblett, Adam, Vice President/General Manager, Cox Media, West 
  Warwick, Rhode Island, January 26, 2009, letter................  1077
Harpootian, John M., Paster & Harpootian, Cranston, Rhode Island, 
  May 7, 2010, letter............................................  1078
Hittner, Barry G., Warwick, Rhode Island, January 19, 2009, 
  letter.........................................................  1080
Hurst, Barbara, Deputy Public Defender, Providence, Rhode Island: 
  January 12, 2009, letters......................................  1081
Israel, Richard J., Great Barrington, Massachusetts, May 7, 2010, 
  letter.........................................................  1084
Jaffe, Bob & Jill, Providence, Rhode Island, February 24, 2009, 
  letter.........................................................  1085
Jones, Scot A., President/CEO, Groov-Pin, Smithfield, Rhode 
  Island:
    January 28, 2009, letter.....................................  1086
    November 2 2010, letter......................................  1087
Josten, R. Bruce, Executive Vice President, Chamber of Commerce, 
  Washington, DC, June 15, 2010, letter..........................  1088
Keefe, Sister Ann, Saint Michael's Parish, Providence, Rhode 
  Island, May 6, 2010, letter....................................  1089
Keeling, Beth, Supervisor of Southwick Drive Group Home, Lincoln, 
  Rhode Island, December 26, 2008, letter........................  1090
Kelly, Neil F.X., Prosecutor, Criminal Division, Providence, 
  Rhode Island, February 12, 2009, letter........................  1092
Lapides, Sally E., President & CEO, Residential Properties LTD, 
  Providence, Rhode Island, January 14, 2009, letter.............  1094
Magaziner, Suzanne McTigue, Bristol, Rhode Island, February 22, 
  2009, letter...................................................  1098
Mandell, Mark S., Attorney at Law, Mandell, Schwartz & Boisclair, 
  LTD, Providence, Rhode Island, January 28, 2009, letter........  1099
Nolan, Annie M., President, Providence, Rhode Island, February 6, 
  2008, letter...................................................  1100
Pine, Jeffrey B., Jeffrey B. Pine Law Office, Wakefield, Rhode 
  Island, May 7, 2010, letter....................................  1101
Providence Journal, by John E. Mulligan, April 26, 2010, article.  1103
Ruggiero, Deborah, State Representative, District 74, Jamestown, 
  Rhode Island, January 20, 2009, letter.........................  1108
Sampson, David A., President and Chief Executive Officer, 
  Property Casualty Insurers Association of America, Washington, 
  DC, December 14, 2010, letter..................................  1110
Sullivan, Charles, Professor of English, Providence, Rhode 
  Island, January 27, 2009, letter...............................  1111
Symonds, Susan, Interior Design, LL, Providence Rhode Island, 
  February 20, 2009, letter......................................  1112
U.S. Chamber Institute for Legal Reform, U.S. Chamber of 
  Commerce, American Insurance Association, American Tort Reform 
  Association, National Association of Mutual Insurance 
  Companies, Property and Casualty Insurers Association of 
  America, May 11, 2010, joint letter............................  1113
Weisberger, Joseph R., Chief Justice (retired), Supreme Court of 
  Rhode Island, Providence, Rhode Island, February 9, 2009.......  1115
Whalen, David G., President and Chief Executive Officer, Lincoln, 
  Rhode Island:
    January 22, 2009, letter.....................................  1117
    May 6, 2009, letter..........................................  1119
Wood, Cliff, Councilman, Providence, Rhode Island, April 1, 2009, 
  letter.........................................................  1121

                     ALPHABETICAL LIST OF NOMINEES

Bredar, James K., Nominee to be U.S. District Judge for the 
  District of Maryland...........................................   584
Chatigny, Robert N., Nominee to be U.S. Circuit Judge for the 
  Second Circuit.................................................   153
Gibney, John A., Nominee to be U.S. District Judge for the 
  Eastern District of Virginia...................................   251
Hollander, Ellen Lipton, Nominee to be U.S. District Judge for 
  the District of Maryland.......................................   644
Lohier, Raymond J., Jr., Nominee to be U.S. Circuit Judge for the 
  Second Circuit.................................................     6
Matheson, Scott M., Jr., Nominee to be U.S. Circuit Judge for the 
  Tenth Circuit..................................................   460
McConnell, John J., Jr., Nominee to be U.S. District Judge for 
  the District of Rhode Island...................................   529
Nelson, Susan Richard, Nominee to be U.S. District Judge for the 
  District of Minnesota..........................................   708
Stark, Leonard, Nominee to be U.S. District Judge for the 
  District of Delaware...........................................    49


NOMINATIONS OF RAYMOND J. LOHIER, JR., NOMINEE TO BE U.S. CIRCUIT JUDGE 
  FOR THE SECOND CIRCUIT; LEONARD STARK, NOMINEE TO BE U.S. DISTRICT 
                   JUDGE FOR THE DISTRICT OF DELAWARE

                              ----------                              


                        THURSDAY, APRIL 22, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 3 p.m., Room SD-
226, Dirksen Senate Office Building, Hon. Edward E. Kaufman 
presiding.

 OPENING STATEMENT OF HON. EDWARD KAUFMAN, A U.S. SENATOR FROM 
                     THE STATE OF DELAWARE

    Senator Kaufman. I am pleased, and I am pleased to call 
this nomination's hearing of the Senate Committee on Judiciary 
to order, and I want to thank Chairman Leahy for permitting me 
to Chair this hearing.
    I'd like to welcome both the nominees and their families 
and friends, the U.S. Senate and congratulate them, genuinely 
congratulate them on the nominations and to thank their family 
and friends for letting them accept the nominations.
    Today we welcome Raymond Lohier, Jr., nominated to be the 
Judge on the Circuit Court, Second Circuit. Mr. Lohier has 13 
years of experience as a Federal prosecutor and most recently 
served as a Deputy Chief and Chief of the Securities and 
Commodities Fraud Task Force in the U.S. Attorney's Office for 
the Southern District of New York, a very quiet place to be.
    As you may know, I have been a strong champion here in the 
Senate of the Department of Justice efforts to root out the 
fraud that contributed to our financial crisis and bring those 
responsible to justice. Poor Mr. Lohier had to listen to me 
yesterday talk about that. I really appreciate your efforts. I 
really appreciate everything you've done and I really 
appreciate your accepting this public service. I know public 
service runs deeply to you and it is a wonderful thing you are 
doing.
    We'd also like to give a warm welcome, an especially warm 
welcome to Hon. Leonard Stark from my state of Delaware, 
nominated to be District Court Judge for the District of 
Delaware. Congratulations.
    Judge Stark currently serves the District as a Magistrate 
Judge. He was a previous Assistant U.S. Attorney, a very well-
respected Assistant U.S. Attorney in Delaware. Delaware is a 
small state, where everybody knows everybody. So when you're 
respected in Delaware, you're respected.
    I'm pleased to note that he's an active member of the 
Delaware legal community and an active alumnus of the 
University of Delaware. He will be introduced by my Senior 
Senator, Tom Carper.
    Welcome, Senator Carper, and thank you for being here. I 
know you are scheduled at hearings, so we'll get to you very 
soon. In fact, we'll get you right now.

PRESENATION OF LEONARD STARK, NOMINEE TO BE U.S. DISTRICT JUDGE 
 FOR THE DISTRICT OF DELAWARE BY HON. THOMAS R. CARPER, A U.S. 
               SENATOR FROM THE STATE OF DELAWARE

    Senator Carper. Mr. Chairman, I think I'd like to start off 
my hearing by singing a verse of Oh, Our Delaware.
    Senator Kaufman. Proceed.
    Senator Carper. I once had the misfortune of following Maya 
Angelou as a commencement speaker at the University of Delaware 
several years ago when I was Governor. She had written for the 
entire graduating class of the University that year, written a 
song, a poem and a song, and she sang it.
    After she finished that and left 25,000 people standing on 
their chairs cheering, I was introduced to follow her.
    Senator Kaufman. I am sure you did just fine.
    Senator Carper. I said, after David Roselle, the President, 
introduced me, I said like Maya Angelou, I too will sing my 
remarks.
    While I am happy enough today to almost sing my remarks, 
I'll spare all of you for that. I just want to say to Mr. 
Chairman and to Pat Leahy and Jeff Sessions, the Chairman and 
full Committee and the Ranking Republican and to your staffs 
how much we appreciate the expedited consideration of this 
nomination.
    I also want to say here as we stand next to, sit next to 
our other nominee, Raymond Lohier, that we wish you and your 
family well and congratulations on your nomination.
    Mr. Stark, Len Stark will I'm sure introduce his wife and 
three children, his mom and sister in a little bit when he 
speaks. Who knows, he may introduce the rest of the crowd that 
is here today as well. But I just want to say we're glad that 
you all are here and have our Chief Judge from the Federal 
District Court in Delaware, Judge Sleet is here.
    A fellow who is sitting almost right behind me over my 
right shoulder is Jim Soles, legendary professor and Political 
Science Professor Emeritus at the University of Delaware who 
has mentored among others, Leonard Stark and me. That is just a 
very small sampling of folks that he has mentioned over the 
years.
    He probably single handedly has sent more people off into 
public service in the State of Delaware than anybody else.
    Senator Kaufman. One of my personal heroes.
    Senator Carper. He is a personal hero to all of us from 
Delaware. It is great to be here with him on this special, 
special day.
    I just want to say how pleased and really honored I was to 
present to the President the names of three superbly qualified 
Delawareans for him to consider for this judicial appointment. 
Any one of them would have been an excellent addition to the 
court and all of them uphold the high regard in which this 
court, our court, is held.
    The President has made I think a very wise choice in 
nominating our U.S. Magistrate, Leonard P. Stark, for a seat, 
bar seat on the U.S. District Court in Delaware. I will candor, 
he could not have made a bad choice from among the three names 
that we sent him. They are all just superb.
    Len Stark is a fellow University of Delaware graduate. So 
likely he is a proud Blue Hen Not just any kind of Blue Hen, 
but a Fighting Blue Hen. He couldn't decide what to major in at 
the University of Delaware, whether to major in political 
science or economics, so he majored in both. He couldn't decide 
whether as an undergraduate, just an undergraduate degree with 
a dual major and a masters degree, so he got both. Not 
everybody does that as an undergraduate to also complete your 
graduate work in history.
    I think early on the folks at U of D realized that this is 
an exceptional, exceptional person. He received as a student at 
the University of Delaware a full scholarship as a Eugene 
Dupont Memorial Distinguished Scholar.
    Following graduation, he was twice honored by fellow 
students and alumni by serving as commencement speaker. I don't 
know about you, Len, but I love giving commencement addresses. 
My guess is if they had you back twice, you must have been 
pretty good. So for that, congratulations.
    Right after graduating from the University of Delaware, 
Leonard Stark was selected as a Rhodes Scholar. He studied at 
Oxford University. He has authored numerous academic and 
scholar publications including a book on British politics which 
he wrote in his spare time in between classes at Oxford. After 
Oxford, Leonard wanted to earn his law degree at Yale Law 
School where he served as Senior Editor of the Yale Law 
Journal.
    Somehow through all of this he managed to meet Beth. Jim 
Soles tells me, Dr. Soles tells me they met on their first day 
as freshmen at the University of Delaware. So actually after he 
kind of peaked on his first day, after that it was all 
downhill. But he still managed to accomplish quite a bit in 
what followed.
    He finished up with Yale Law School. I think the next thing 
for him to do was to take a judgeship with a very distinguished 
jurist in our part of the country, Walter Stapleton on the 
Third Circuit Court of Appeals, after which Len practiced as a 
corporate litigator at a little bitty law firm called Skadden, 
Arps.
    He began his career in public service as an Assistant U.S. 
Attorney for Delaware where from 2002 until 2007 he handled a 
wide variety of Federal, criminal and civil matters. Currently 
Leonard Stark serves as a U.S. District Court of Delaware in 
the service of the U.S. District Court of Delaware as a 
magistrate judge. In this position he already does a fair 
amount of the same work as a District Court Judge. Not all, but 
a good deal.
    His docket largely consists of civil cases that are 
referred to him by three active District Court judges. These 
referral cases, a great many of which are patent infringement 
actions, Judge Stark handles all types of pretrial matters, and 
in certain cases even presides at trial just like we sometimes 
get to preside as Chairs of subcommittees in hearings just like 
this one.
    Finally, I'll just say Len Stark is a humble and dedicated 
public servant. In fact, if I were half as smart and half as 
accomplished as he is, you would not want to be in the same 
room with me. This is a guy, to be this good and be this smart 
and to be this humble is a pretty remarkable combination.
    A dedicated public servant, obviously good family man. He 
is blessed with a wonderful wife and three terrific young 
children who I've been able to spend some time here today. He 
is joined today by his mom as well. I want to say to his mom, 
Linda, I think his sister Danielle is here, brother, father-in-
law, James Brophee I believe also in attendance.
    Particularly to Linda, to Len's mom, thank you so much for 
all that you and others in your family did to raise this young 
man. For him to turn out as well as he has, obviously somebody 
was involved early on and you have been involved all of his 
life, so great work. Maybe your sister Danielle gets an assist 
as well.
    I have already introduced Jim Soles. Let me just say he is 
one of the all-time greats. The wind beneath my wings and I 
know Len Stark's and that of so many others who are here today.
    I would conclude by saying that I think in every facet of 
his life, Len Stark has performed with distinction earning the 
highest praise from his colleagues in many of the most 
prestigious awards ever given to a legal scholar and to a 
public servant.
    I think I can sum it all up by saying simply that Len Stark 
has the heart of a servant and his nomination, his position as 
magistrate on the U.S. District Court clearly provides him with 
the skills and preparation to be an outstanding District Court 
judge.
    His legal acumen, his tireless work ethic, his experience 
as a Federal magistrate judge, as an Assistant U.S. Attorney, 
as a litigator, has prepared him well for this seat on the U.S. 
District Court in Delaware should this Committee and the Senate 
see fit to confirm the nomination.
    In fact, it is hard for me to imagine really finding anyone 
in the country better prepared than he is to serve in this 
position. I urge my colleagues to move quickly on his 
confirmation and already you have moved very quickly.
    Again, to you my colleague and friend, Senator Kaufman, Mr. 
Chairman, it is great seeing you sitting there. To Senator 
Leahy, our Chair and to Jeff Sessions, our ranking Republican, 
all the staff who helped move this along, the seat has been 
vacant for a long time and we are anxious to fill it and we 
thank you for bringing us this much closer to that goal. Thank 
you so much.
    Senator Kaufman. Thank you for as you said, an excellent 
process and clearly coming up with an excellent result. I want 
to thank you. I know you have to leave to go to committee, but 
I appreciate it.
    Senator Carper. I'm going to go preside over a hearing of 
my own.
    Senator Kaufman. There you go.
    Senator Carper. I know I leave this nomination in very good 
hands.
    Senator Kaufman. Thank you.
    Senator Carper. Thank you.

   PRESENTATION OF RAYMOND J. LOHIER JR., NOMINEE TO BE U.S. 
 CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY EDWARD E. KAUFMAN, A 
  U.S. SENATOR FROM THE STATE OF DELAWARE FOR SENATOR SCHUMER

    Senator Kaufman. Next I have the pleasure of introducing 
Mr. Lohier. Senator Schumer told me that unfortunately he 
couldn't be here, which is the Senate is crazy now, but he 
sends his regret.
    He has a statement here he wants to put in the record. 
Chairman Leahy has a statement he wants to put in the record on 
both the nominees. If there is no objection, I will put them in 
the record. Hearing none.
    [The prepared statement of Senator Schumer and Chairman 
Leahy appears as a submisssion for the record.]
    Mr. Lohier has had a distinguished career as a Federal 
prosecutor. He served as a trial attorney in U.S. Department of 
Justice Civil Rights Division and since 2000 has been an 
Assistant U.S. Attorney in the Office of the U.S. Attorney for 
the Southern District of New York where he is currently Special 
Counsel for the U.S. Attorney.
    In the Southern District of New York, he has held multiple 
leadership positions. As Deputy Chief and Chief of the 
Narcotics Unit, Mr. Lohier supervised the investigation and 
prosecution of hundreds of cases involving large scale drug 
distribution networks.
    He has also served as Deputy Chief and Chief of the 
Southern District of New York Securities and Commodities Fraud 
Task Force. In these roles, he supervised or co-supervised all 
of the District's securities fraud trials.
    Most notably, Mr. Lohier oversaw the investigation and 
prosecution of Bernie Madoff, one of the biggest fraud cases in 
the country's history. His work led to Madoff's conviction, a 
sentence of 150 years in prison and a forfeiture of more than 
$70 billion.
    Mr. Lohier also participated in the investigation and 
prosecution of New York Attorney Marc Dreier for a $750 million 
Ponzi scheme resulting in a 20-year prison sentence and 
forfeiture of more than $740 million.
    Mr. Lohier has received several honors and awards for his 
outstanding work including the Attorney General's John Marshall 
Award for Outstanding Legal Achievement and multiple Department 
of Justice Special Achievement awards.
    Mr. Lohier, your credentials are truly impressive and we 
are deeply grateful for your public service.
    With the agreement of the Ranking Member and in the 
interest of efficiency, we are going to have both nominees on 
the same panel. So if you'd come forward.
    I'd like you both to please stand and raise your right 
hands and repeat after me.
    Do you affirm 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. Lohier. I do.
    Judge Stark. I do.
    Senator Kaufman. Thank you. Let the record show the 
nominees have taken the oath.
    Mr. Lohier, I welcome you and acknowledge any family 
members or friends you have here today and then give an opening 
statement.

 STATEMENT OF RAYMOND LOHIER, TO BE U.S. CIRCUIT JUDGE FOR THE 
                         SECOND CIRCUIT

    Mr. Lohier. Thank you, Senator. I don't have a specific 
opening statement, but I would like to thank the Committee and 
you, Senator, for presiding over this hearing promptly. I would 
also like to thank Senator Schumer for his unstinting support 
throughout this process as well as Senator Gillibrand.
    I'd like to thank the many members of the Department of 
Justice, both my current colleagues and former colleagues who 
have expressed their support and good wishes. Of course I'd 
like to thank the President for nominating me. It is a great 
privilege and a great honor.
    I would be more than happy to answer the Committee's 
questions, but before that if I may, I would like to introduce 
and take advantage of your kind offer to introduce members of 
my family.
    Senator Kaufman. Great.
    Mr. Lohier. I have here with me my lovely wife, Donna, who 
I was fortunate enough to meet in my first year of law school 
and everything went well since then.
    I have also with me my two boys. William, who is eight, and 
John, who is six. Senator, I don't want you to be alarmed if 
you see them make a run for the door at any given time.
    Senator Kaufman. I will not be alarmed.
    Mr. Lohier. I also have with me my mother, Flocie Lohier, 
who as much as anyone else, taught me the value of hard work 
and integrity. I thank her for being here.
    My father, who passed away approximately two and a half 
years ago I'm sure is looking over me right now and is here in 
spirit.
    I'd also like to acknowledge the fact that both my father-
in-law and my mother-in-law, C.S. Lee and Nancy Lee, drove all 
the way up here from Florida to be here, and I thank them very 
much for that.
    I have a very close family friend, Pat Taboe, who is also 
here who came last night and I appreciate her presence. I'd 
especially like to acknowledge the presence of someone who has 
been my mentor and whom I had the privilege of serving as a law 
clerk, and that's Judge Robert P. Patterson, Jr., of the United 
States District Court for the Southern District of New York and 
I truly have valued his mentorship over the course of the years 
that I have known him and since I have clerked for him.
    In addition, Senator, I have got several of my wife's 
uncles and an aunt, Mee-Sang Skrajnowski and Wlodek Skrajnowski 
and K.S. Lee as well as many, many friends from law school and 
college and high school. I thank them all for being here. I 
thank you again.
    Senator Kaufman. And I thank them for letting you do this, 
taking on this responsibility. I know it's a hardship on family 
and friends, but I think it's so incredibly worthwhile and I 
appreciate what you're doing.
    Judge Stark, would you like to make an opening statement 
and point out some of your family and friends?
    [The biographical Information of Raymond Lohier follows.]

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 STATEMENT OF LEONARD STARK, TO BE U.S. DISTRICT JUDGE FOR THE 
                      DISTRICT OF DELAWARE

    Judge Stark. Yes. Thank you very much. Thank you, Mr. 
Chairman, and thank you to the Committee for having this 
hearing. I too want to thank Senator Carper for his very kind 
and generous introduction and for taking time out of his 
schedule to be here to do that.
    I of course am very grateful to the President as well for 
this great honor of his nomination of me. I don't have an 
opening statement, but I would like to take the chance to 
introduce some of the many family and friends that I have with 
me starting first with my wife, Beth Stark.
    We have our three children here with us. I think all three 
are still in the room.
    Senator Kaufman. Yes, they are.
    Judge Stark. OK. That may not last. My son, my oldest son, 
Brennan, is 11, my daughter Lucy is eight, and my son who I am 
most concerned with at the moment, James, is 3 years old.
    I am very pleased also that my mother, Linda Stark, is 
here. She is here from St. Louis, and my sister Danielle 
Gordman, came in from Omaha, Nebraska to be here as well.
    My father-in-law had a shorter trip, James Brophy, he is 
here from Maryland. There are family members and friends who 
are watching on the webcast as well. I particularly would like 
to note my mother-in-law Karen Brophy and my two brothers-in-
law, Neal Brophy and Jeff Gordman.
    I have several friends here in the audience including 
friend and colleague, our Chief Judge of the District Court, 
Greg Sleet and I also want to note Dr. James Soles whom Senator 
Carper mentioned, but I am truly blessed to have Dr. Soles as a 
friend and a mentor and it is certainly, as you know, no 
exaggeration to say that Dr. Soles at this point has been an 
inspiration for several generations of Delaware judges, lawyers 
and public servants and I'm very honored to be among them.
    Finally I do want to mention my father who unfortunately 
and sadly is not here. I too lost my father. For me it was in 
2003. My dad was an attorney, of course the very first attorney 
that I knew. I know that he watches over me every day including 
today and I know that today he is especially proud and humbled, 
as am I. I'd be happy to answer any questions the Committee may 
have.
    [The biographical information of Leonard P. Stark follows.]



    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Kaufman. And again, thank your family for allowing 
you to embark on this adventure. I tell you, you are honored by 
having Judge Sleet and Professor Soles here with you two folks 
who are among the most respected in Delaware. So it's an honor 
for you to have them here and it's an honor for us that they 
are here.
    What I'd like to do is just ask some questions. Senator 
Sessions is on his way, he should be here in a few minutes, but 
I'm just going to start and proceed. What I'd like to do is 
just ask a series of questions to both of you. We'll start with 
Mr. Lohier.
    Could you briefly describe your judicial philosophy?
    Mr. Lohier. Yes, Senator. If I am fortunate enough to be 
confirmed as a Circuit Court Judge, my judicial philosophy 
would be very straightforward. That is that I would apply the 
law either Supreme Court precedent, binding Supreme Court 
precedent or binding Second Circuit Court precedent or the 
plain text of a statute.
    I would apply that law to the facts in the record of the 
case and I would do so objectively, impartially and with an 
open mind.
    Senator Kaufman. Thank you. Judge Stark.
    Judge Stark. Yes, Senator. As a magistrate judge now and if 
fortunate enough to be confirmed as a District Court judge, my 
approach is to carefully apply the precedent of the Supreme 
Court and the Court of Appeals to the facts of the case as they 
appear before me.
    Senator Kaufman. Mr. Lohier, you have spent 13 years as a 
Federal prosecutor. Can you kind of lay out what it is you 
learned in that that would be helpful to be on the bench?
    Mr. Lohier. I've learned a tremendous amount, Senator. 
First and foremost, as a prosecutor in the Southern District of 
New York, I had the great privilege of writing briefs and 
submitting briefs, as well as arguing orally before the Second 
Circuit Court of Appeals which is always a formidable 
experience.
    In addition, I learned what it takes to create a record 
below the District level, what goes into a record and what the 
potential pitfalls and appealable issues below may be.
    In addition to that, as a supervisor I was blessed. I was 
blessed to supervise some of the most outstanding, in my view, 
prosecutors in the country on very difficult cases, some of 
which you mentioned.
    In the course of my supervision of those fine, fine, 
prosecutors, I had the opportunity to review decisions, to 
grapple with incredibly complex legal scenarios and legal 
issues, as well as a very wide array of facts, very complex 
facts both on the financial fraud front as well as the 
narcotics front.
    As a result of that, I have had a wide range of experience 
that I think will serve me well.
    Senator Kaufman. Thank you. Judge Stark, you worked as a 
judicial law clerk, private practice and a prosecutor. What did 
you learn from that that you think will help you be on the 
District Court?
    Judge Stark. Thank you, Senator. I have had the opportunity 
to work with a number of truly phenomenal attorneys, both as a 
litigator in private practice and as an AUSA. I have had the 
opportunity to try cases, civil and criminal, in both state and 
Federal court and I think through all that experience I have 
learned just both how difficult but how important it is to put 
together a case, to put together a record to vigorously 
represent your client's interest and to pursue justice.
    I have found all of that to be helpful as a magistrate 
judge and I'm sure I would continue to find that helpful as 
well if I'm fortunate enough to be confirmed.
    Senator Kaufman. Both of you have been prosecutors. Can you 
just spend a few minutes and talk about what you've learned as 
prosecutors and what you think of the effect of deterrents for 
white collar crime?
    Mr. Lohier.
    Mr. Lohier. With respect to white collar crime, Senator, 
and I know that you have worked incredibly hard in this area. I 
believe that the fight against financial fraud and the fight 
against financial crimes is a critical fight that our Nation 
faces.
    Certainly as a judge, I will abide by the Supreme Court 
precedent and abide by and comply with any Second Circuit Court 
precedent in the area of financial crimes, but it means a lot 
to me and I have learned how critical that fight is to the 
integrity of our markets.
    Senator Kaufman. Judge Stark.
    Judge Stark. And I would certainly echo what Mr. Lohier has 
said. From my experience as a prosecutor, I believe prosecuting 
white collar offenses is just as important as prosecuting other 
types of offenses. There certainly is a deterrent effect from 
prosecutions, and that's very important.
    Senator Kaufman. And how much of it do you think is stiffer 
sentences or surety of longer prison sentences? I mean, is 
there any one thing that you think really is more helpful than 
another as a deterrent?
    Mr. Lohier. I think stiffer sentences do have a deterrent 
effect, Senator. I also think that the regulation in place that 
is in place to make sure that the defendants know what the line 
is are critical, and those bright line rules that we have in 
place are also critical to combat financial crime.
    Senator Kaufman. Great. I want to thank you both for this 
hearing. Judge Sessions is held up in his meeting, so what I 
would like to do is thank you both for being here today, 
congratulate you on your nominations. I think it is easy to see 
that you are both truly qualified and we are grateful, as I 
said before, grateful to you but even more grateful to your 
spouses and friends and family that you answered the Federal 
services call and are willing to serve in the positions that 
you have.
    I wish you the very best of luck. I have no doubt you're 
going to have wonderful careers and I'm looking forward to 
seeing you confirmed out of the Senate and onto your posts. So 
with that, I'll adjourn.
    I'd like to keep the record open in case anyone has 
anything to add until noon tomorrow. We stand in recess.
    [Whereupon, at 3:30 p.m., the Committee was adjourned.]
    [Questions and answers and submissions follow.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    


NOMINATIONS OF ROBERT N. CHATIGNY, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR 
  THE SECOND CIRCUIT; AND JOHN A. GIBNEY, NOMINEE TO BE U.S. DISTRICT 
               JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA

                              ----------                              

                  WEDNESDAY, APRIL 28, 2010
                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:35 p.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar 
presiding.
    Present: Senators Sessions, Grassley, Kyl, and Coburn.

OPENING STATEMENT OF HON. AMY KLOBUCHAR A U.S. SENATOR FROM THE 
                       STATE OF MINNESOTA

    Senator Klobuchar. All right. I'm pleased to call this 
nominations hearing of the Senate Judiciary Committee to order.
    I want to give a warm welcome to both of our nominees. I 
can tell you, the last nomination hearing that I chaired--I 
think Senator Sessions was there--was in the middle of the snow 
blizzard and our nominees were stranded in a hotel room with 
their babies for 6 days, so they were really happy to come out 
and be here.
    So, it is great to be here with our judicial nominees, 
Robert Chatigny, as well as the second one, who is Mr. Gibney. 
So, thank you very much, both of you, for being here. We have 
many Senators, seven Senators, here for this great event. So 
we'll start here with Senator Dodd, who was here first. I know 
that he is going to speak and introduce Robert Chatigny, as is 
Senator Lieberman.
    Senator Dodd.

PRESENTATION OF ROBERT N. CHATIGNY, NOMINEE TO BE U.S. CIRCUIT 
  JUDGE FOR THE SECOND CIRCUIT BY HON. CHRISTOPHER J. DODD, A 
           U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Dodd. Thank you very much, Madam Chairman, Senator 
Sessions, Senator Grassley. Of course, I am delighted to be 
talking about anything but financial reform at this point.
    [Laughter.]
    Senator Dodd. So I may stay here and filibuster the rest of 
the afternoon on this matter so I don't have to go back to 
these other issues. But I'm delighted to be here this afternoon 
and to introduce, along with obviously Joe, my great pal and 
friend here, an individual that I not only respect immensely, 
but is my great, great friend for many, many years, and his 
family as well.
    He's here, Madam Chairman, with his wife Stacy in the back. 
He'll want to introduce these people himself, probably. Stacy 
and two sons, John and Peter, who are here, and sister-in-law 
Sugar, his mother-in-law Elaine is back there as well, sister-
in-law Barb, brother Vic, are all the family kind of gathered 
around as well. So we're delighted to recommend or to introduce 
them as well, so I thank you for having this hearing.
    Judge Chatigny's outstanding resume, Madam Chairman, I 
think makes it clear that he's tremendously well-qualified to 
serve on the Second Circuit of the Court of Appeals. I want to 
congratulate President Obama for this excellent nomination.
    In 1994, President Clinton nominated Judge Chatigny, Bob, 
to serve on the District Court and Judge Chatigny was confirmed 
unanimously by the U.S. Senate in 1994. For nearly 16 years he 
has been a Federal judge in Connecticut, serving as chief judge 
for the District of Connecticut from 2003 to 2009. In addition 
to ruling on a wide variety of cases, Judge Chatigny has earned 
a reputation of integrity, intelligence, and strict adherence 
to the rule of law.
    So I am pleased that Judge Chatigny has received the 
support of numerous former Federal prosecutors in Connecticut 
who understand the importance of upholding the rule of law and 
vouch for his character and his qualifications.
    Allow me to quote from a letter that I think was sent to 
the Committee, Madam Chairman, from three former U.S. 
Attorneys, each of whom happened to be appointed by Republican 
Presidents at the time who served well and with great 
distinction in our State. In their letter to you and to the 
members of the Committee, they said this about Judge Bob 
Chatigny: ``We believe that he is a fair-minded and impartial 
judge who has the appropriate fitness and temperament for the 
appellate court.''
    In addition, Madam Chairman, the Committee has also 
received a letter signed by nearly 20 Assistant U.S. Attorneys 
currently practicing in Connecticut in which they express their 
confidence as well that Judge Bob Chatigny would be ``unbiased, 
compassionate, and temperate''. Clearly, Madam Chairman, Bob 
has the confidence and the support of the Connecticut legal and 
law enforcement communities in our State.
    Judge Chatigny's legal experience prior to his appointment 
reveals a very rich understanding of, and a very deep, deep 
commitment to, the American legal system. After graduating from 
Brown University and Georgetown University Law Center, he 
served as clerk to three Federal judges, including Judges John 
Newman and Jose Cabranas. Prior to his service on the court, 
Bob built an excellent reputation in private practice, first as 
an associate at Williams & Connolly here in Washington, then 
returning to private practice in Hartford, Connecticut for a 
decade.
    In addition, Judge Chatigny has devoted substantial time 
and effort to improving the legal profession. When the Governor 
of Connecticut sought experienced and knowledgeable public 
servants to help make up better public policy, Judge Chatigny 
was the easy choice, serving on both the State Judicial 
Selection Commission and the State Commission on Prison and 
Jail Overcrowding.
    In addition, he has served various roles with the 
Connecticut Bar Association, as well as being an advisor to the 
congressionally created Federal Court's Study Committee. There 
can be very little doubt--no doubt whatsoever then--that this 
man's talents, his temperament are tremendous well-suited for 
service on the Second Circuit Court of Appeals.
    On a personal note, Madam Chairman, I have had the 
privilege of getting to know Bob for many, many years. His wife 
Stacy and her parents I knew even before I knew Bob and we go 
back a long time. They're very, very close, wonderful friends 
of my parents as well. As a friend of Bob's and someone who 
recognizes his tremendous accomplishments, I am grateful that 
he has agreed to continue his service to our country by 
allowing his name to be put forward for this very, very 
important position. As a Senator, I am proud to recommend to 
you one of the State's finest jurists, Bob Chatigny, as the 
next member of the U.S. Court of Appeals for the Second 
Circuit.
    I would say on a side note, not part of these remarks, in 
terms of a full disclosure, that 11 years ago this June, Bob 
also married me and my wife Jackie. Jackie is not here to 
testify, I believe, on his behalf after 11 years, but I believe 
she would as well. So I know that's not part of the remarks and 
no reason for his name to be forward for you to consider voting 
for him, but I would be remiss if I didn't thank him publicly 
as well for performing those duties on that day.
    Senator Sessions. Well, that was a good act.
    Senator Dodd. Yes, it was.
    [Laughter.]
    Senator Dodd. He was impartial, too. Showed good 
temperament, Jeff.
    Senator Klobuchar. And thank you, Senator Dodd, for 
revealing that conflict of interest.
    Senator Dodd. That is a conflict.
    [Laughter.]
    Senator Klobuchar. That was very, very smart.
    Judge, I see you also have half of the independent caucus 
of the U.S. Senate here in your other Connecticut Senator.
    Senator Lieberman, welcome.

PRESENTATION OF ROBERT N. CHATIGNY, NOMINEE TO BE U.S. CIRCUIT 
 JUDGE FOR THE SECOND CIRCUIT BY HON. JOSEPH LIEBERMAN, A U.S. 
             SENATOR FROM THE STATE OF CONNECTICUT

    Senator Lieberman. Thanks, Madam Chair, Senator Sessions, 
members of the Committee. I thank you for giving me this 
opportunity to join my dear colleague and friend, Senator Dodd, 
in support of Judge Robert Chatigny's nomination to serve on 
the U.S. Court of Appeals for the Second Circuit.
    I am proud to be here to support the nomination. I'm 
delighted to see his family. I want to mention, his late 
father-in-law, Peter Savin, who was a great friend to Senator 
Dodd and me, a wonderful citizen in Connecticut, very 
charitable, just a lot of fun to be with, passed away some 
years ago so he's not here in person. But I actually felt that 
he called me when I was in a conference committee a while ago 
and said, now, get up and get over to give your statement for 
Bob. That's important.
    Senator Dodd and I, together, recommended Judge Chatigny to 
President Clinton in 1994 for a vacancy that then existed on 
the District Court in Connecticut, and he was, I am happy to 
say, nominated and confirmed by the Senate unanimously. In 
fact, from 2003 to 2009, Judge Chatigny was the chief judge for 
the District of Connecticut.
    Throughout his tenure on the court he has demonstrated a 
surpassing commitment to thoughtful, hardworking rulings 
upholding the rule of law. He's shown real impressive legal 
knowledge and capabilities. I hear from both those who have 
appeared before him, but also from his colleagues, that he has 
that magical, mysterious ingredient known as a fine judicial 
temperament and has worked very effectively with his colleagues 
on the bench to fashion opinions, to keep the court moving in 
exactly the direction it should be moving.
    I'm not going to repeat all the facts of his personal and 
legal career which Senator Dodd did, except to say that I think 
that in his years on the District bench he has clearly earned 
the respect of his peers on the bench and in the Connecticut 
bar. He's rendered admirable service for the past 15 years as a 
district judge, which makes him eminently capable to sit on 
this very important Circuit Court.
    It is why I am so grateful that President Obama responded 
favorably to our recommendation and that of many others that he 
give Bob Chatigny the chance to serve on the Second Circuit 
Court, and why I feel that he is so clearly ready to assume 
this responsibility. So I thank you and the members of the 
Committee for proceeding forward with the confirmation process 
here and I look forward to working with you and the rest of our 
Senate colleagues to see to it that Judge Chatigny is confirmed 
to serve on the Second Circuit Court of Appeals.
    Thank you very much.
    Senator Klobuchar. Well, thank you very much, Senators Dodd 
and Lieberman. Of course you are welcome to stay to hear your 
colleagues, but if you have other things to do, we understand 
that as well and we really thank you for coming to our 
Committee today. Thank you.
    All right. Senator Webb, thank you for being here.

  PRESENTATION OF JOHN A. GIBNEY, NOMINEE TO BE U.S. DISTRICT 
JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. JIM WEBB, A 
            U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Webb. Thank you, Madam Chairman, Senator Sessions, 
Senator Grassley. I am pleased to join my colleague from 
Virginia, Senator Mark Warner, for the purpose of introducing 
to this Committee an outstanding attorney from Virginia, John 
Gibney, whom the President has nominated for a seat on the U.S. 
District Court for the Eastern District of Virginia.
    I have a longer statement. I would ask it be submitted for 
the record and summarize, with your consent.
    First of all, I have to say that when I found out that 
Judge Chatigny was an alumnus of Georgetown Law Center the same 
era that I was, it brought back a saying that they used to have 
at Georgetown. That was that the A students became professors 
and judges, the B students practiced law, the C students went 
into business, and the D students became politicians.
    [Laughter.]
    Senator Webb. So here we both are, Judge.
    I'd like to recognize Mr. Gibney's son, John Gibney, III, 
who joined us today, along with Mr. Gibney's future daughter-
in-law, Jesse Telhorster, both of whom are with us and are 
sitting right behind me today.
    I believe President Obama has made an extraordinary choice 
in nominating John Gibney. As I have met with candidates for 
Federal judicial vacancies in Virginia, an exhaustive process 
that Senator John Warner and I began and Senator Mark Warner 
and I have continued, I continue to be impressed by the caliber 
of the candidates that the Virginia bar has been putting 
forward, and the pool from which Senator Warner and I had to 
choose from for this position was extraordinary. It included 
judges, legal scholars, and skilled trial attorneys.
    From this very competitive field, Senator Warner and I 
recommended Mr. Gibney because of the overwhelming endorsement 
that he received from his peers across the State, and also 
because of his professional dedication. We recommended him to 
the President for nomination in June of last year.
    Mr. Gibney is not only known as an excellent trial attorney 
who has tried hundreds of cases, but also is a stand-out 
example of professionalism in the practice of law. He has been 
repeatedly asked to speak at the Virginia State Bar Young 
Lawyers Conference Professionalism Program for New Lawyers.
    He has devoted countless hours toward teaching ethics, 
continuing legal education classes to his fellow members of the 
bar. He has devoted his time to serving his community and 
helping fellow members of the bar throughout his career. I am 
proud to note that Mr. Gibney is a product of Virginia's 
educational institutions. He is a 1973 graduate of the College 
of William and Mary, and a 1976 graduate of the UVA Law School.
    His legal career has included time spent as an Assistant 
Attorney General of Virginia, as a law clerk to Hon. Harry L. 
Carrico, former chief justice and current senior justice of the 
Supreme Court of Virginia. So I am pleased to give my strongest 
endorsement, and I would now invite my colleague, Senator Mark 
Warner, to offer some comments.
    Senator Klobuchar. Thank you very much, Senator Webb. Your 
full statement will be put on the record.
    [The prepared statement of Senator Webb appears as a 
submission for the record.]
    Senator Klobuchar. Senator Warner, welcome to our 
Committee.

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

    Senator Warner. Thank you, Madam Chair. Thank you, Senator 
Klobuchar, Senator Sessions, Senator Grassley, Senator Coburn, 
for this opportunity.
    Again, I won't reiterate all of the comments that my 
colleague Senator Webb made. I would like to thank the 
Committee for acting quickly on this nomination. We nominated 
John Gibney last June. The President actually, I guess, 
formally nominated him just earlier this month. The fact that 
this hearing is already being held, we are grateful for the 
speedy, expeditious manner in which you are addressing this 
issue.
    I also was going to point out the fact that John Gibney 
went to both William and Mary and UVA. Judge Carrico, the long-
term chief of our State Supreme Court, now senior status, is 
somebody who is extraordinarily well-regarded, and the fact 
that John Gibney clerked for Judge Carrico went a long way in 
my mind.
    As Senator Webb indicated, John Gibney was highly regarded 
or highly qualified by the State bar, and John has been active 
in a whole series of legal activities around the Commonwealth 
and around Richmond.
    But I want to follow up as well, kind of off my comments, 
on why I think we made this choice. We've been blessed with 
extraordinary candidates in Virginia who Senator Webb and I had 
to work through, and I thank my senior Senator again for the 
process that he and John Warner established as we screen and 
try to make sure that we get all the input needed to make these 
kind of recommendations to the President.
    But in John Gibney we found somebody who, I think--I'm not 
sure how much of his life story he will relay to the Committee, 
but it's an interesting life story. It's one that's had some 
success, it's had some failure, it's had some challenges.
    In his law practice, I think he has represented a variety 
of clients and a variety of intersections in the legal system 
that will bring a perspective, should you decide to move 
forward and if the Senate, as I hope, will confirm him, that 
sometimes could be absent from the bench.
    I think sometimes it's great, as I think Senator Webb said, 
that we get the Law Review candidates, and as at least a lawyer 
by training, never by practice, I think it's important that we 
get the legal scholars represented on the bench. I also think 
it is important that we get people who have really practiced 
law day in and day out, seeing the challenges that everyday 
Americans have to confront as they face the sometimes complex 
and challenging judicial system we have in this country. In 
John Gibney, we've got somebody who I think is a lawyer's 
lawyer, somebody who understands those challenges, and someone 
I will echo with my colleague Senator Webb, I give my full-
fledged endorsement to. I appreciate the Committee's actions on 
his nomination today and I look forward to voting for his 
confirmation on the floor of the Senate.
    So, thank you, Madam Chairman.
    Senator Klobuchar. Thank you very much. Thank you, both of 
you, for being here. Have a good day. We're going to have a lot 
of fun here, I can tell you that much.
    Senator Sessions is going to give his opening statement. 
Before I do that, I wanted to put the opening statement of 
Chairman Leahy on the record in support of both of our 
nominees, Judge Chatigny as well as Mr. Gibney.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Klobuchar. Senator Sessions.

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

    Senator Sesions. Thank you, Madam Chairman. I look forward 
to the hearing today. The nominees have all been looked at 
through our staff and through the President and his staff, and 
undergone background evaluations by the FBI, and the American 
Bar Association, and anyone else who wants to comment on their 
nomination. So even though the hearings are important, also 
much of this is in the record and we have the ability to review 
it.
    Looking at the nomination of Judge Chatigny, I think we'll 
ask a number of questions today about that. He presided over 
several last-minute motions to stay the execution of perhaps 
Connecticut's most notorious serial killer, Michael Ross, who 
had been convicted and sentenced to death nearly 20 years 
earlier for kidnapping, rape, and murder of six women, and he 
confessed to the murder of eight.
    After multiple appeals, State court proceedings, and in 
Federal court, the defendant explicitly instructed his attorney 
not to appeal anymore. From there, we had a number of actions 
by the judge to really frustrate what appeared to be the lawful 
decision of the State of Connecticut, and I have concerns about 
it. We've talked earlier, and I appreciate that.
    Judge, I enjoyed our opportunity to meet. I'm not in any 
way questioning your integrity and intentions. I appreciate the 
strong support that Senator Dodd has given to your nomination. 
I also got a call from former Attorney General Mukasey, who 
believes in you and supports your confirmation.
    But seven Assistant State's Attorneys General have filed an 
ethics complaint concerning the conduct in that case, and we 
have a letter from the attorney, the prosecutor who handled the 
habeas case in your court who opposes your nomination. So it is 
a matter that I take very seriously and I believe judges have 
roles. Federal judges, in review of State court convictions 
that have been confirmed by the State Supreme Court, have 
limited responsibilities to interfere in the execution of that 
and we'll discuss those issues as we go forward. Thank you.
    Senator Klobuchar. All right. I'm going to ask the first 
questions, then we'll go down the row here. I think I'll start 
with a general question about how you would characterize your 
own judicial philosophy and what makes you want to be a judge.
    Judge Chatigny. I appreciate the Committee's interest in 
learning how I approach cases and I do my best to decide each 
case on its merits, taking each case one at a time, examining 
the facts with care, applying the relevant precedent, and 
avoiding injecting my own personal policy preferences into the 
matter.
    I've tried to do that throughout my 15 years as a district 
judge, and if I am fortunate enough to be confirmed, I would do 
that as a judge of the Court of Appeals.
    Senator Klobuchar. Senator Dodd and Senator Lieberman 
mentioned your family, but there may be relatives they didn't 
mention. So if you want to introduce them to us, we'd love to 
meet them.
    Judge Chatigny. Actually, Senator Dodd, as usual, was very 
good to introduce everybody, I believe. My wife Stacy is with 
us, my sons Peter and John are seated here in the front row, 
and my good friend Peter Kahn from the law firm of Williams & 
Connolly. Behind them, my brother Vic and his wife Barb, and my 
mother-in-law, Elaine Savin, and my sister-in-law Sugar. We 
appreciate very much this opportunity to appear before the 
Committee today.
    Senator Klobuchar. Well, thank you.
    You talked about your judicial philosophy. I appreciated 
that answer. Has your being a judge for the last 16 years 
changed at all your view of what a judge does?
    Judge Chatigny. It has impressed me with the importance of 
treating each case with care, extending to all people who come 
before the court an opportunity to be fully heard and it has 
left me with a strong conviction about the importance of the 
facts of each case and the need to examine the facts of each 
case with particular care.
    Senator Klobuchar. Thank you. I'd like to explore that 
more, but I was listening to Senator Sessions' opening 
statement and I know he wants to focus on one of your cases. I 
thought I would give you an opportunity, just right here, to 
talk about that. I know this is the Michael Ross case involving 
horrific murder. I guess my first question as a threshold 
matter would be: do you have any problems applying the death 
penalty or upholding capital sentences?
    Judge Chatigny. None at all.
    Senator Klobuchar. And the death penalty is, of course, the 
ultimate punishment. We have to be very careful when it's 
applied. For example, individuals have to be competent to stand 
trial. According to a 2002 Supreme Court ruling--that would be 
Atkins v. Virginia--executing mentally incompetent individuals 
is a violation of the Eighth Amendment ban on cruel and unusual 
punishment. And so I know from cases that I read throughout my 
life and work as a prosecutor, whether it's a death penalty or 
a non-death penalty case, that judges are very conscious that 
these procedures be followed with any case. Is that correct?
    Judge Chatigny. Yes.
    Senator Klobuchar. And in this case, Michael Ross, the 
defendant, indicated that he wanted to waive further appeals 
and be put to death. So when you hear that and you know about 
the murder, if you're a guy on the street you think, OK, it's 
over. Could you explain to me what made you question whether he 
was legally competent to waive his appeal and just make that 
decision on his own?
    Judge Chatigny. Yes. Thank you for the question. I 
understand and appreciate why people are concerned about what 
happened in this difficult case. The litigation came before me 
on a Friday afternoon and I was asked to conduct an emergency 
hearing on the question whether this defendant was competent to 
waive legal challenges to the death sentence.
    I had no reason to question the good faith of the people 
who came before me. They did not appear to be death penalty 
abolitionists, interested in using the court to pursue their 
own agenda. I thought that they were urgently concerned about 
the question of his competence.
    I looked at the case over the weekend and presided at an 
emergency hearing on Monday. Based on my review of the facts 
and the law, I concluded that a stay should enter so that a 
hearing could be conducted on the issue of his competence to 
waive challenges to his death sentence. It was a very difficult 
week for all concerned. The Court of Appeals upheld the stay, 
but a closely divided Supreme Court vacated the stay.
    Senator Klobuchar. And there was a 6-day evidentiary 
hearing, is that right?
    Judge Chatigny. As a result of the events that occurred 
during that week, the defendant's own counsel moved in the 
State court for a stay so that a full hearing could be held on 
the issue. A hearing was conducted. A determination was made 
that the defendant was competent, and he was executed.
    Senator Klobuchar. And do you have any issues with the 
Superior Court's determination?
    Judge Chatigny. No.
    Senator Klobuchar. So I just want to be clear before we 
embark on this journey to talk to you more about this case, 
that the whole episode here wasn't about the death penalty. You 
were ready to actually give that out as a sentence. The issue 
to you was whether or not the defendant was competent to make 
certain decisions.
    Judge Chatigny. That's correct.
    Senator Klobuchar. And after this Ross episode was over, 
there were complaints filed against you alleging judicial 
misconduct for how you handled the case. A special Committee 
comprised of then-Second Circuit Chief Judge John Walker, 
Second Circuit Judge Pierre LaValle, and then-Chief District 
Judge Michael Mukasey of the Southern District of New York 
exhaustively investigated the facts and the allegations against 
you, and this panel absolved you of any wrongdoing and cleared 
you of all the allegations against you. Is that correct?
    Judge Chatigny. Yes.
    Senator Klobuchar. And then the findings of this special 
panel were adopted by the Judicial Council for the Second 
Circuit. Is that right?
    Judge Chatigny. Yes.
    Senator Klobuchar. All right. Very well. I have gone 
slightly over my time, so Senator Sessions, if you want an 
extra minute and a half, please, it's yours.
    Senator Sessions. Thank you.
    Senator Klobuchar. Thank you.
    Senator Sessions. But I see my colleague is here. Senator 
Grassley is here, Senators Coburn and Kyl. I'd be pleased to 
yield to Senator Coburn at this time.
    Senator Coburn. Welcome, Judge Chatigny. I want to go 
directly to the Ross case, but before I ask you questions I 
want to make sure that everybody understands that are not 
familiar with the case of the Roadside Strangler, Michael Ross. 
I'd like to describe a few of the details before I ask you 
questions.
    While in prison, Michael Ross participated in the creation 
of a documentary on serial killers entitled, ``The Serial 
Killers,'' during which he described in great detail how he 
raped and murdered eight women and girls. In the video, he 
explained, ``Serial killers like me like to strangle their 
victims, and that is I guess the most common form of killing 
because there's more of a connection, it's more real, it's not 
as quick.'' Ross murdered all of his victims by strangling 
them.
    He later describes how he tied up Leslie Shelly, age 14, 
and put her in the trunk of his car and then took the other 
girl, April Brunias, age 14, and ``raped her and killed her, 
and I put her in the front seat.'' Then he pulled Leslie 
Shelley out of the trunk and brutally raped and killed her. In 
describing his last victim, Wendy Baribeault, he said, ``I 
raped her and I killed her. It wasn't as pleasant. It wasn't a 
nice rape.''
    Judge Chatigny, this is the man you described in your 
testimony and in your discussions on this case as ``the least 
culpable of people on death row'' and said, ``he should never 
have been convicted, or if convicted, he never should have been 
sentenced to death,'' and that ``when Mr. Ross says that I feel 
I'm the victim of a miscarriage of justice because they didn't 
treat it as a mitigating factor, I can well understand where 
he's coming from.''
    Judge, this serial murderer is the man you did everything 
possible to prevent the execution of. I think the record shows 
that. You believed in your position. I just wonder why you 
think your behavior in this case, which is pretty 
extraordinary--I've only sat on this Committee for 5 years--why 
that behavior would warrant a promotion to a much more senior 
court.
    Judge Chatigny. Senator, thank you for your question. I 
appreciate your concern. And of course, I found these horrible 
crimes to be unimaginably and unspeakably abhorrent. I believed 
that under the law, I was obliged to give careful consideration 
to the claim that he was not competent to waive legal 
challenges to this death sentence.
    Senator Coburn. Was he not found out to be competent and 
ruled competent?
    Judge Chatigny. Ultimately, yes. After a full adversarial 
hearing he was determined to be competent, and on that basis he 
was executed. I believe that the law required such a hearing to 
be held and that was my sole concern. I regret very much using 
words that make it appear that I was concerned about the issue 
of his guilt. In fact, I had no such concern.
    Senator Coburn. But you did, in fact, agree that there were 
mitigating circumstances. I think you pronounced him with a 
diagnosis of sexual sadism. Is that correct?
    Judge Chatigny. Senator, I wish I could----
    Senator Coburn. I have the record here. Those are your 
words.
    Judge Chatigny. Yes. And read out of context, I can 
appreciate that the reader could think that I had an opinion. I 
addressed those issues in connection with the issue of 
competence. The defendant had a long history of mental illness, 
several disorders, including the one you mentioned. These were 
relevant to the question of his competence to waive legal 
rights.
    Senator Coburn. What was the name of the psychiatrist who 
diagnosed him with sexual sadism?
    Judge Chatigny. He was evaluated by a psychiatrist named 
Michael Norko, and Dr. Norko testified in the State proceeding 
that preceded my involvement that the defendant was competent. 
Part of the difficulty in this unusual case was that there was 
no adversary proceeding at that stage and his opinion was not 
tested in any way. After the events that occurred before me, he 
contacted the defendant's lawyer and said, now that I have 
looked at material I had not seen before, I realize my opinion 
could change. And it was on that----
    Senator Coburn. Could change or did change?
    Judge Chatigny. Could change.
    Senator Coburn. OK.
    Judge Chatigny. And on that basis, the defendant's lawyer 
sought a stay so that the issue could be adequately 
investigated and reliability determined.
    Again, I apologize for using words that call into question 
my character as a judge in that case. In life, we----
    Senator Coburn. I'm not challenging your character. Your 
record shows that you have great character. That's not what I'm 
challenging. I'm worried about a standard that's outside the 
law, an empathy standard where you become too identified with a 
case to make a sound judgment. As a matter of fact, multiple 
courts before yours had found him competent. You were not the 
only one.
    The other question that I have is that you were actually 
involved in this case prior to it coming to you as an attorney, 
is that correct?
    Judge Chatigny. Technically, perhaps. But----
    Senator Coburn. Was that made evident to the people who 
were on both sides of the trial in this case? Was it disclosed?
    Judge Chatigny. It was not, for the simple reason that I 
had forgotten my prior involvement.
    Senator Coburn. In a serial murder case of eight people?
    Judge Chatigny. I was not involved in the case. Thirteen 
years before the matter came to me I was contacted by a friend 
who asked me if I would file, on behalf of the Connecticut 
Criminal Defense Lawyers Association, a motion in the State 
Supreme Court for leave to file an amicus brief on an 
evidentiary issue. I agreed to do so. I reviewed the motion 
that he prepared and I saw to it that it was filed, and that 
was the end of my involvement in the matter.
    Senator Coburn. I think my records are correct, that's the 
only death penalty case you were involved in in 25 and you 
forgot it?
    Judge Chatigny. Senator, the simple truth is that---
    Senator Coburn. The rape and murder of eight young women?
    Judge Chatigny. Well, I never represented Michael Ross and 
my involvement didn't extend beyond essentially acting as local 
counsel for my friend for the purpose of filing an application 
to file a motion, and that----
    Senator Coburn. But you actually did research on that case 
on mitigating factors. Is that correct?
    Judge Chatigny. I did some very limited research before 
concluding that there was no need for me to be involved 
anymore, and I told my friend that this was the case and I had 
no further involvement.
    Senator Coburn. I'm sorry. My time is up. I'll have to wait 
till the second round.
    Senator Klobuchar. Thank you very much.
    Just to clarify the record, Judge Chatigny, the issue last 
raised by Senator Coburn about your recollection of filing a 
motion, you didn't actually represent the defendant, is that 
correct?
    Judge Chatigny. That's correct.
    Senator Klobuchar. And in the Mukasey report when they 
reviewed the conduct from this case, they in fact found that 
this was innocent and not misconduct. Is that correct?
    Judge Chatigny. They found that it was an innocent lapse of 
memory, which it was.
    Senator Klobuchar. OK.
    Judge Chatigny. When I realized that I had a prior 
involvement I was stunned, as was my former partner when he 
learned about it. It had been 13 years. It may seem to 
reasonable people that my involvement was in some way 
significant, but it wasn't.
    Senator Coburn. Madam Chairman, I'd just like to add, prior 
to you joining our Committee there was a judge, a Circuit judge 
by the name of Jim Payne who disclosed he owned 100 shares of 
Wal-Mart to the litigants in a trial and we castigated him as a 
Committee.
    I didn't, but the Chairman did, saying how unethical it 
was, even though he disclosed it. So we're talking about two 
different standards now, one that says it's fine not to 
disclose and one that says somebody is not on the appellate 
bench today because they did disclose. I'd add that to the 
record.
    Senator Klobuchar. OK. Well, I wasn't there for that case. 
I just know what the finding of Judge Mukasey was in this case, 
and that was that there was no misconduct.
    Senator Coburn. But our job is not on the findings of Judge 
Mukasey. It is our job to see if somebody is suitable for a 
Circuit judge position, not the finding of an appeal in terms 
of lawyers.
    Senator Klobuchar. That's correct.
    Senator Sessions.
    Senator Sessions. Senator Kyl, I'll yield.
    Senator Kyl. Thank you very much, Judge. Welcome. Maybe 
that's not the right terminology here, but obviously this Ross 
case is something that's been well-publicized. It's something 
that I'm sure you appreciate we have an obligation to look 
into.
    Judge Chatigny. Yes.
    Senator Kyl. Part of the concern that I have about the case 
relates to the issue of judicial temperament. You consider 
judicial temperament to be a key factor in our evaluation of a 
nominee for the court, I presume. I guess the thrust of the 
questions that I have go to a conference you held with some of 
the lawyers and some of the terminology that you used during 
that conference. This was on January 28, according to the notes 
that I have here, with the defendant's lawyer, whose name is 
Paulding.
    Here are some of the things that my notes reflect that you 
said during that. First of all, do you remember that 
teleconference?
    Judge Chatigny. Yes.
    Senator Kyl. At least now you do.
    Judge Chatigny. I do.
    Senator Kyl. You told him that he was ``facilitating the 
execution of his client'', that ``we are not in this profession 
to help people get killed'', and third, ``and I tell you that, 
Mr. Paulding, because it is true. What you're doing is 
terribly, terribly wrong, and so I don't know how anybody in 
your position honestly, Mr. Paulding--I do not know how anybody 
in your position could be accepting of this responsibility to 
proceed in the face of this record to be the proximate cause of 
this man's death.''
    Do you remember those statements?
    Judge Chatigny. I do.
    Senator Kyl. You then went on to warn him of the 
consequences of his not reversing course. You said, ``So I warn 
you, Mr. Paulding, between now and whatever happens Sunday 
night, you'd better be prepared to live with yourself for the 
rest of your life and you'd better be prepared to deal with me 
if an investigation is conducted and it turns out that what 
Lopez says and what this former program director says is true, 
because I'll have your law license.'' Do you remember saying 
that?
    Judge Chatigny. Yes.
    Senator Kyl. And then when Mr. Paulding told you that he 
had spoken to his client as you had previously instructed him 
to do, you responded, ``Then you better make a clear record of 
it. You better have a court reporter there taking down the 
advice you're giving him, because believe me, if--you're going 
to need it. You're going to need it.''
    Do you remember saying that?
    Judge Chatigny. I do.
    Senator Kyl. Do you think that the way that you expressed 
yourself in that hearing was appropriate and do you believe 
that it might raise a legitimate question in our mind as to 
your judicial temperament?
    Judge Chatigny. Senator, thank you for asking me this 
question because I can well understand why you would be 
concerned. I regard judicial temperament as vitally important, 
indispensable. And one of the difficulties that I have with the 
Ross case is the way I spoke to Mr. Paulding. I used words that 
were excessive, words that were harsh. I regretted them 
immediately and I undertook to apologize to him at the earliest 
opportunity and he was very gracious to say to me that no 
apology was necessary. But, yes, I do acknowledge that my 
choice of words was terrible. It's a situation in which I 
believed then, and I believe now, that I did the right thing, 
but I went about it the wrong way.
    Senator Kyl. Do you recall now what caused that to occur? 
Did you lose your temper? Were you simply really uptight about 
this particular case? Were you mad at Ross? What was your state 
of mind that caused you to do something that you've 
acknowledged was inappropriate?
    Judge Chatigny. This telephone conference took place at the 
end of a grueling week, with hours remaining before the 
execution. I believed that I had a duty to point out to this 
lawyer----
    Senator Kyl. Was it pressure? I'm trying to--because of the 
time here, trying to----
    Judge Chatigny. I'm sorry.
    Senator Kyl. Was it--your explanation would be that you 
were under a lot of pressure, or what? I'm not trying to put 
words in your mouth, I'm just looking for an explanation 
because that is unacceptable behavior for a judge.
    Judge Chatigny. I agree that the words I used were wrong 
and the pressure was intense. I would like to think that, even 
under intense pressure, I would now display calm detachment, 
which I surely did not display at the time. But it was a 
learning experience for me, to be sure.
    Senator Kyl. Judge, because of our timing rules our 
questioning is really chopped up here, so my first round of 5 
minutes has now expired. I'll just carry on then where I left 
off next time I have a chance to query you.
    Thank you.
    Senator Klobuchar. Thank you. And just since the topic of 
your temperament came up, I just want to put in the record that 
the Committee has received a joint letter from three former 
Republican-appointed U.S. Attorneys for the District of 
Connecticut: Kevin O'Connor, U.S. Attorney from 2002 to 2008; 
Alan Nevis, U.S. Attorney from 1981 to 1985; and a U.S. 
district judge for that same district from 1985 to 1989; and 
Stanley Twardy, Jr., U.S. Attorney from 1985 to 1991, who wrote 
that they ``support without any reservation the nomination of 
Judge Robert Chatigny to the U.S. Court of Appeals for the 
Second Circuit''.
    In a letter dated April 16th, 2010, they wrote that they, 
``Have found him to be even-tempered, thorough, and without 
agenda'', as well as ``a fair-minded and impartial judge'' 
whose record in sentencing Federal criminal defendants shows 
that he is appropriately sensitive to the facts of the person 
before him and the rights of the victims of the crimes that 
have been committed. So I will include this letter in the 
record.
    [The letter appears as a submission for the record.]
    Senator Klobuchar. I would also note just one more 
clarification of the record, that in the Mukasey findings, that 
this was not found to be a reason for misconduct. I think they 
call it unusual, but they understood the circumstances. Is that 
correct?
    Judge Chatigny. Yes.
    Senator Sessions. Madam Chairman, are you----
    Senator Klobuchar. I'm just clarifying the record since----
    Senator Sessions. Well, are you going to respond to each 
witness' testimony? Is that the way we're going to do it?
    Senator Klobuchar. Senator Sessions, it's your time to 
question and I'll go after that. Your turn.
    Senator Sessions. Well, I would offer for the record the 
letter from Mr. Michael E. O'Hare, the supervising Assistant 
State's Attorney who represented the State in this case, who 
questions the wisdom of this appointment and the fitness of the 
nominee to serve who was there, participated, and saw what 
happened. I don't think this is a matter that is going to 
lightly go away, Judge. I wish it was, but it's just not going 
to be dismissed.
    I have been a prosecutor and I have seen judges go beyond 
their proper role in hearings, and I believe you did in this 
case. I believe Mr. Paulding, the attorney for the defendant, 
conducted himself in a way he should have and that you did not. 
And so that's a problem for me. You have a good record. People 
like you. In other cases--there are some concerns in other 
cases. But I just have to tell you, I've seen the transcript 
and I didn't--not so much--I think it evidenced a lack of a 
proper understanding of your role in the matter.
    So with regard to the competency hearing you testified to 
that occurred before the death penalty was carried out, this 
matter had been tried in the State courts of Connecticut, had 
been appealed to the Connecticut Supreme Court, and a 
competency hearing had been held and the death penalty had been 
affirmed by the highest court in the State of Connecticut, had 
it not?
    Judge Chatigny. Yes.
    Senator Sessions. And so what occurred, as I understand it, 
is that a letter came in from a prisoner at the last minute 
saying that the defendant may have been brainwashed and that 
somehow this caused a second competency hearing to occur. Is 
that correct?
    Judge Chatigny. It was one of a number of things that 
happened to contribute to that result.
    Senator Sessions. Now, with regard to that letter, when did 
that letter come in? Did that come in before the Friday 
teleconference?
    Judge Chatigny. Yes. I believe it arrived 2 days before--
two or 3 days before. I don't recall----
    Senator Sessions. And Mr. Paulding had been in constant 
contact with his client, and as it turned out that letter was 
insubstantial and not proven to be dispositive of the issue of 
his competency.
    And apparently, is it not true, that the client, Mr. Ross, 
the murderer, had decided he didn't want to appeal anymore? He 
felt that the judgment of execution was due to be carried out 
and he was prepared to accept it.
    Judge Chatigny. Yes. And the issue before me was whether he 
was competent to waive legal remedies.
    Senator Sessions. And the attorney who has been working 
with him and been defending him that he chose--is that correct, 
or was he appointed?
    Judge Chatigny. Senator, let me take this opportunity to 
clarify. His long-time defense counsel who had defended him 
over the course of the many years were the ones who came to the 
Federal court, claiming that he was not competent to waive 
legal remedies. The lawyer who was representing him at the 
time, Mr. Paulding, had been hired to advocate that he was 
competent.
    Senator Sessions. By the defendant or his----
    Judge Chatigny. By the defendant.
    Senator Sessions. So the defendant wanted a lawyer to make 
clear that he didn't think he was incompetent and that he was 
prepared to accept his fate.
    Judge Chatigny. Yes.
    Senator Sessions. Which is consistent with what the 
competency hearing in the State had found, and consistent with 
what the appellate courts and the Supreme Court of Connecticut 
had found.
    Now, tell me again. I have to ask this. Senator Coburn 
asked you about the letter that you wrote from your friend. Did 
you know--did you sign the letter?
    Judge Chatigny. I signed an application for leave to file a 
brief, yes.
    Senator Sessions. And was a brief--was it the brief that 
was filed?
    Judge Chatigny. No brief was ever filed. My involvement was 
limited to filing that application for permission to file a 
brief, looking briefly at an issue and then informing my friend 
that I didn't think it was necessary or appropriate for me to 
be briefing that issue, that others could do it, and so my 
involvement ended.
    Senator Sessions. So he did give you some indication of 
what the issue was apparently.
    Judge Chatigny. Not really.
    Senator Sessions. Well, you say you told him it wasn't 
appropriate for you to respond, or something to that effect. 
Surely you had some basis to make an evaluation of the merits 
of the case.
    Judge Chatigny. Please understand that this was one issue 
of many and I was not involved in considering all the other 
issues. My consideration of this one particular issue was very 
limited. As I said before, I was not involved in the Ross 
litigation, except for that very brief involvement, which I 
unfortunately forgot. Had I remembered, I would have recused 
myself to avoid even a possible appearance of bias. But 
regrettable as it is, I forgot.
    Senator Sessions. Well, my time has run at this point. You 
know, we want to be fair to you and we're going to do that. You 
need to have an opportunity to explain, and I've learned a few 
things in talking with you already I didn't fully understand. 
But we do have some more. Madam Chairman, I think we'll need to 
have some more time.
    Senator Klobuchar. Of course. Whatever time you need.
    I just had some follow-up questions, Judge Chatigny.
    Now, so what happened here is, you have this case, he's 
going to be executed, and then you get some information that 
the guy that had found him, the medical expert who had found 
him competent to stand trial, was now doubting his opinion. Is 
that right? Or wasn't sure if that was correct, or he might 
make a different opinion?
    Judge Chatigny. The sequence needs to be clarified The 
psychiatrist who evaluated this defendant in the State court 
competency proceeding contacted the defendant's lawyer soon 
after the telephone conference that we've discussed and told 
the lawyer that he had come into possession of material, 
actually writings, by this defendant that caused him to think 
that his opinion about the defendant's competence could change. 
That, together with other information that emerged, caused Mr. 
Ross's lawyer to move to stay the execution so that the issue 
of the defendant's competence could be reevaluated.
    Senator Klobuchar. And so you then had to make a decision. 
So the lawyer gets this information that the expert who had 
said his client was competent now isn't sure if he's competent, 
so he gives him that. So the lawyer--I just, as a lawyer 
myself, you would have an obligation to bring that before a 
judge.
    So, now you look at this competency issue. I just remember, 
as a prosecutor, we would have these cases come up. I will be 
honest, as a prosecutor, we'd always want them to be found 
competent to stand trial even if they were like talking to 
tomatoes or whatever cases that we had. We did have one like 
that.
    And sometimes we would concede it because it was so 
obvious, and sometimes it was a murky area, but a lot of times 
as a prosecutor we would fight to have someone declared 
competent. I'm sure you've seen that. But your obligation as a 
judge--let's say that you had just dismissed this and didn't 
even look at it and said, you know what? He's competent and I 
don't even want to give a chance to have a hearing on this. 
Then what if he was executed then and then someone had found 
that the lawyer--that this lawyer hadn't brought it up or 
hadn't done anything about. What would have happened to that 
lawyer?
    Judge Chatigny. Well, that was my concern. I undertook to 
warn Mr. Paulding of the potential consequences if he failed to 
act and his client was executed in violation of his 
constitutional rights. I was trying to do the right thing to 
protect the integrity of the system. If we were going to have 
an execution we should do it right. This was the first one in 
45 years, and I thought it was important that it be done 
carefully.
    Senator Klobuchar. So it wasn't your belief that somehow he 
shouldn't be executed or----
    Judge Chatigny. No.
    Senator Klobuchar. Even that he didn't do the deeds. It was 
that--and the horrific crime. It was that the procedure at 
hand, you felt especially if it was this landmark execution, 
horrific case, public focus, and you wanted it to be handled in 
the right way, is that what you're talking about?
    Judge Chatigny. Yes. And as it happened, Mr. Paulding 
prepared a motion for a stay of the execution for filing in 
Federal court, and recognizing that these unusual events of the 
past week had created an unfortunate situation, I urged him to 
file the motion in State court, out of respect for the State 
court, to give the State court an opportunity to act on that, 
and he did. The State court granted the motion, held the 
competency hearing, made the finding that the defendant was 
competent, and in the end that's how it turned out.
    Senator Klobuchar. And then one other clarification. During 
this three-judge panel, looking back at this case with all of 
its facts and evidence, Michael Ross's lawyer, who is J.R. 
Paulding, testified that he did not feel pressured, but sought 
a postponement of the execution based on his own view of the 
evidence and his duties as a lawyer. Is that correct?
    Judge Chatigny. Yes.
    Senator Klobuchar. OK.
    Judge Chatigny. And I feel particularly badly about what 
occurred because I think that Mr. Paulding did his 
conscientious best in the circumstances.
    Senator Klobuchar. And then after that happened, when the 
three-judge panel issued its decision, it actually said that, 
``while the judge used strong language, there was no 
misconduct. Under the proper circumstances, a judge may deliver 
a warning that threatens a misbehaving attorney with 
disciplinary action or contempt citation by the judge, or 
referral to another disciplinary authority without necessarily 
interfering with any legitimate right of the attorney or the 
attorney's client.''
    Again, these were three judges: Second Circuit Chief Judge 
Walker, who was nominated by President George H.W. Bush; Judge 
Pierre LaValle; and then Southern District of New York Chief 
Judge Michael Mukasey, who as we know later went on to serve as 
the U.S. Attorney General under George W. Bush.
    And I understand that Mr. Mukasey is publicly supporting 
your nomination. As we know from Senator Sessions' statement, 
that he had called him. Is that correct?
    Judge Chatigny. Yes.
    Senator Klobuchar. All right.
    So again, I want to thank you. I would love to talk to you. 
I think you've had like 450 opinions. Is that correct?
    Judge Chatigny. Yes.
    Senator Klobuchar. And only 16 of them have been reversed. 
Who's counting? I don't know.
    [Laughter.]
    Senator Klobuchar. Something like that. Or been maybe taken 
up to be reconsidered broader, than reversed.
    But I want to thank you for your patience. I know my 
colleagues have some other questions. Thank you very much.
    Judge Chatigny. Thank you.
    Senator Kyl. Madam Chairman, Senator Coburn has graciously 
agreed to let me go ahead.
    Senator Klobuchar. Senator Kyl.
    Senator Kyl. Let me go ahead. As is the case sometimes, 
things interfere with this hearing, and I apologize, but I only 
have a minute before I have to go to another commitment.
    I've got two questions, each with a subpart. Let me go back 
to this conference that we talked about before. You, in this 
conference, cited your own personal experience in an unrelated 
matter, touring the prison where Mr. Ross was held. I gather 
this was not a part of the record in the case before you. Was 
that an appropriate thing under those circumstances?
    And I guess, second, you also referenced abundant 
literature that you had read on the issue, noting that most 
European countries would refuse to extradite prisoners if a 
prisoner was going to end up ``in that setting.'' I think you 
were referring to that particular prison.
    I guess the second part of this question is: how does that 
inform, or do you believe that this is an appropriate reference 
for you to inform interpretation of U.S. case law?
    Judge Chatigny. Senator, dealing with the first part of the 
question, I had toured the facility in connection with another 
case and I wanted to put that on the record so that Mr. 
Paulding and others would know what was in my mind. In the 
ordinary case, a judge would not take into consideration things 
outside the record, but this was an emergency proceeding and I 
felt I had an obligation to disclose that, partly because I 
wanted to do my best to focus Mr. Paulding's attention on what 
was going on. And I----
    Senator Kyl. I'm sorry. Because of the time--I appreciate 
that.
    Judge Chatigny. I'm sorry.
    Senator Kyl. Can you get to the second part of the question 
regarding the foreign law?
    Judge Chatigny. Yes.
    Senator Kyl. This is a matter of great concern to those of 
us who don't think it appropriate to resolve U.S. cases on the 
basis of foreign law.
    Judge Chatigny. I understand. And I have never used foreign 
law to decide an issue before me and I can't envision a 
circumstance in which I would. My point here was to impress 
upon Mr. Paulding that the conditions of the defendant's 
confinement could exacerbate his mental illness, as alleged. As 
it turned out, after the full evidentiary hearing in State 
court, that proved not to be so. But at the time I spoke, I had 
an allegation that it was so and I went forward for that reason 
only.
    Senator Kyl. Well, what did European extradition experience 
have to do with that?
    Judge Chatigny. Only insofar as they relied upon empirical 
evidence regarding the effect of long-term solitary confinement 
on inmates, and for no other reason.
    Senator Kyl. Let me switch to a second subject. After the 
teleconference and after the Supreme Court affirmed the Second 
Circuit's reversal of the temporary restraining order and there 
were no additional impediments to his execution, which was then 
set to occur at 2 a.m. on the following morning, about 3 hours 
before the scheduled execution you directed the clerk of your 
court to call the Execution Command Center and request the 
number of Judge Patrick Clifford, who was the State trial court 
judge in the case. Is that correct?
    Judge Chatigny. Yes.
    Senator Kyl. Now, given the fact that there was no longer 
any matter pending before you, and I gather there was no motion 
on the part of any party, why did you do that?
    Judge Chatigny. I wanted the judge to know that I was 
available in case he wanted to speak with me. I thought there 
was a chance he might hear from Mr. Paulding and he might want 
to seek clarification from me.
    Senator Kyl. Did you speak with him, with the judge?
    Judge Chatigny. No.
    Senator Kyl. Did you also try to contact the chief justice 
of the Supreme Court, Justice Sullivan?
    Judge Chatigny. No.
    Senator Kyl. Do you believe now that it was appropriate for 
you to call to volunteer that if they had any questions, that 
you'd be happy to try to answer them?
    Judge Chatigny. I do.
    Senator Kyl. The thing that is in my mind in this line of 
inquiry is that it appears to me that you believe that anybody 
who could commit such a heinous crime must be mentally unfit, 
and it appears to me that you take an undue interest--even 
though I appreciate the fact that you said if there's going to 
be an execution you want to make sure it's done right--and were 
very exercised about the way you discussed this with counsel. 
Would you care to comment on my--on this perception that I 
have?
    Judge Chatigny. Yes. Thank you for giving me the 
opportunity. I can well understand why you would have that 
perception. It's unfortunate that the Ross case gets in the way 
of the record of my work day-to-day in all kinds of cases over 
the course of 15 years. It is not a reliable indication of my 
character as a judge or my work as a judge. Again, I believe I 
did the right thing, but I went about it the wrong way. For 
that, I'm sorry.
    Senator Kyl. I appreciate that. There were some other 
questions that I wanted to ask concerning some other decisions 
that you were involved in and I think we'll have the 
opportunity to put those questions on the record for you. I 
would appreciate that.
    [The questions appear under Questions and Answers.]
    Senator Kyl. And for those family or friends who are here, 
I wasn't here at the beginning so I don't know exactly who 
everybody in the audience is. I hope that everyone appreciates 
that the Senate has an obligation, a very serious obligation to 
the U.S. Constitution, to provide advice and consent to the 
President on his nominations. Just as your responsibilities 
require rigorous investigation, Judge, I am sure that those who 
are representing you here today can appreciate that our 
responsibility requires the same.
    I appreciate your responsiveness and I apologize for having 
to leave now.
    Judge Chatigny. Thank you.
    Senator Klobuchar. Thank you very much, Senator Kyl. Thank 
you for being here.
    Senator Coburn.
    Senator Coburn. Let me go back. I think I heard you, and 
you need to clarify this for me. What was the reason you did 
not file an amicus brief on the Ross case?
    Judge Chatigny. The issue that was suggested for briefing 
seemed to me to not warrant a brief on behalf of the Criminal 
Defense Lawyers Association.
    Senator Coburn. Is it not true that you were written by Mr. 
Ross after you'd filed a motion to file an amicus brief, and 
that you wrote him back saying your involvement was when the 
case was over?
    Judge Chatigny. Yes.
    Senator Coburn. OK. Thank you.
    And you didn't have any recollection of that prior to this 
case?
    Judge Chatigny. I did not.
    Senator Coburn. All right. Thank you.
    I want to go back to the interaction with Counselor 
Paulding and just clarify for the record a little bit. Paulding 
only filed a stay after he had what he believed at that time 
was an implied threat. Would you agree with that?
    Judge Chatigny. Senator, I believe Mr. Paulding has stated 
that he did not feel threatened and that he sought the stay 
based mainly on his conversation with Dr. Norko and his duty to 
the courts to bring to their attention new information or 
evidence bearing on the issue of his client's competence.
    Senator Coburn. Then why would Mr. Ross testify in front of 
you that the only reason he agreed to go along with the filing 
of the stay is to ``protect Paulding's law license'' ?
    Judge Chatigny. There was no such testimony by anyone 
before me.
    Senator Coburn. It was in the Supreme Court, in the State 
Supreme Court.
    Judge Chatigny. That was not the position he took.
    Senator Coburn. That's a direct quote: ``protect Paulding's 
law license,'' from the State Supreme Court.
    Let me move on, if I may. Do you believe that there is a 
mitigating factor in all death penalty cases?
    Judge Chatigny. No.
    Senator Coburn. Do you believe that in sexually related 
crimes such as Ross's, that there usually is a mitigating 
factor?
    Judge Chatigny. No.
    Senator Coburn. How much time did you spend researching 
mitigating factors when you were first asked to look at Mr. 
Ross's record by the--I think it was the Connecticut trial bar, 
benevolent----
    Judge Chatigny. I don't recall doing any research into 
mitigating factors.
    Senator Coburn. Thank you.
    Judge Chatigny. I think it was an evidentiary issue, but I 
don't recall.
    Senator Coburn. It should be noted for the record, at the 
time of your conversation with Mr. Paulding, you were a member 
of the Grievance Committee of the U.S. District Court for the 
District of Columbia. Is that correct? Would your statements to 
Mr. Paulding carry more weight considering you were on the 
Grievance Committee versus a judge who was not on the Grievance 
Committee? Would you, as a reasonable man, tend to think that 
it might carry more weight?
    Judge Chatigny. Senator, I'm not sure. And I'm trying to 
recall if I was a member of the Grievance Committee at that 
time. I don't recall. But certainly, you're right. A forceful 
statement to a lawyer will tend to have an impression, and I do 
regret that my words to Mr. Paulding were harsh.
    I would want to be clear. You referred to Mr. Ross's 
testimony. I believe he gave that testimony in the subsequent 
State court proceeding.
    Senator Coburn. Yes, he did.
    Judge Chatigny. I don't want to leave you with the 
impression that I doubt that he did that.
    Senator Coburn. No, no. No. I understand that. Thank you. 
Let's move off that for a minute. I'll bet you'd like to move 
off of it, and so would I. Thank you for being so cooperative.
    In Doe v. Lee, you held that the Connecticut Sex Offender 
Registration Act was unconstitutional. The U.S. Supreme Court 
unanimously reversed your decision. Specifically, the court 
rejected your conclusion that a violation of a liberty interest 
occurred because the law implied that all registrants are 
currently dangerous and imposed onerous registration 
obligations, relying on its previous precedent established in 
Paul v. Davis, that mere injury to reputation, even if 
defamatory, does not constitute the deprivation of a liberty 
interest.
    Why did you disregard prior Supreme Court precedent in that 
ruling?
    Judge Chatigny. Senator, as in every case, I did my best to 
faithfully apply the law. In that case, a procedural issue was 
presented. I studied the relevant precedents of the Second 
Circuit, did my best to follow them. I concluded that due 
process did require that a hearing be held in a circumstance 
where a----
    Senator Coburn. I'm out of time. Let me just ask one other 
question. You're not responsible just for the precedents of the 
Second Circuit, you're responsible for the precedents of the 
Supreme Court as well, correct?
    Judge Chatigny. Yes.
    Senator Coburn. Thank you. I'll yield back and I'll wait 
for the next round.
    Senator Klobuchar. Okay. Thank you.
    And just to clarify that issue, you did not actually strike 
down Megan's Law, is that correct?
    Judge Chatigny. No. I ruled that due process required a 
hearing. The Second Circuit affirmed. The Supreme Court----
    Senator Klobuchar. And they unanimously affirmed?
    Judge Chatigny. They did. The Supreme Court unanimously 
reversed. I, of course, accept their ruling as the law of the 
land and have no difficulty whatsoever following it. But I did 
my best to apply the law as I understood it.
    Senator Klobuchar. And again, you didn't strike it down. It 
was a procedural issue, that you felt that there should be--you 
felt that there should be an additional procedure.
    Judge Chatigny. To be clear, under Connecticut's registry, 
non-dangerous registrants and dangerous registrants were lumped 
together. There was no differentiation. The plaintiff claimed 
to be non-dangerous and he wanted an opportunity to prove that 
at a hearing before he was listed on the registry. Under 
applicable precedent, Supreme Court and Second Circuit, I 
concluded that he was right, and on that basis I said you can't 
put these people on the registry without giving them a hearing. 
The Court of Appeals agreed. The Supreme Court unanimously 
disagreed and the registry is in effect.
    Senator Klobuchar. Okay. Thank you.
    Senator Sessions.
    Senator Sessions. Judge, as a trial judge you have the 
authority on motion, if contempt is executed in your presence, 
to discipline lawyers, do you not?
    Judge Chatigny. Yes.
    Senator Sessions. And lawyers know that and they respect 
the power of a judge. I have to say that your comments--really, 
threats--to Mr. Paulding were inappropriate. Would you agree?
    Judge Chatigny. I would agree that the words I used were 
excessive, yes.
    Senator Sessions. And you also said at that time, ``We're 
not in this profession to help people get killed.'' A lawful 
execution does not meet my definition of killing. Do you think 
that's a bad choice of words?
    Judge Chatigny. Very much so.
    Senator Sessions. And then when you said to the lawyer, 
``what you're doing is terribly, terribly wrong'', and you went 
on to say, ``I do not know how anybody in your position could 
be accepting of this responsibility and proceed in the face of 
this record to be the proximate cause of this man's death.''
    Then you, I think, went on to basically threaten him. You 
said, ``Then you better make a clear record of it. You better 
have a court reporter there taking down the advice you're 
giving him, because believe me, you're going to need it. You're 
going to need it.''
    Do you feel like--it seems to me the lawyer was 
representing a client who had had a full panoply of appeals and 
was ready to accept his fate, and it seems to be a mentality 
among some in our legal system that the death penalty must be 
resisted at virtually all costs, and we go to every possible 
effort to delay its coming.
    Do you agree that you have a right, when the time is ready, 
that the defendant is ready to be executed, that he should be 
executed?
    Judge Chatigny. Yes, if he's competent, then that's his 
choice.
    Senator Sessions. Now, during this call you said this that 
worries me: ``Looking at the record in light most favorable to 
Mr. Ross, he never should have been convicted.'' How could you 
say that?
    Judge Chatigny. Here again, Senator, I appreciate the 
question because it gives me an opportunity to clarify and to 
address your understandable concern. I was trying to explain to 
Mr. Paulding that the significant evidence casting doubt on his 
client's competence pervaded the case.
    The issue of guilt was not before me. That issue had been 
determined, but the issue of competence was before me and his 
history of mental illness was clearly relevant to that issue. 
His prior counsel had defended the case based on an insanity 
defense, later based on his mental disorders. And I regret that 
I used words that suggested I had an opinion about this 
defendant's guilt or that I was concerned about his guilt. I 
was not. I--my sole concern was whether he was competent to 
waive legal remedies. It was a learning experience, as I said. 
If I had it to do again I would certainly do it differently.
    Senator Sessions. Well, you said ``he should never have 
been convicted'' and then went on to say ``or if convicted, he 
never should have been sentenced to death because sexual sadism 
is clearly a mitigating factor.'' Can you cite any authority in 
which sexual sadism has been defined as a mitigating factor?
    Judge Chatigny. No.
    Senator Sessions. Well, I don't think there is any. I'm 
rather--it seems to me that would be, if anything, an 
aggravating factor.
    Judge Chatigny. My intention was to call Mr. Paulding's 
attention to the record of the defendant's disorders, including 
that one, solely to impress upon him the need to reassess the 
issue of his competence to waive legal remedies.
    Senator Sessions. Well, you said that there was significant 
evidence raising questions about his competency. I don't know 
that there was a scintilla of evidence. I guess this letter, if 
you chose to see it as something of value, could have been seen 
as some minor possibility of a competency question.
    But really, the attorney, Mr. Paulding, was in contact with 
his client who had been--and didn't take this seriously. All it 
was was a letter from a person in jail, maybe trying to help 
out a fellow prisoner, if he could frustrate the system, it 
sounded like to me. There was no real credible facts stated in 
that letter that would make me think that there was a real 
significant question of competency. Wouldn't you agree?
    Judge Chatigny. I do agree. I realize now that there's an 
important point that needs to be clarified. At the emergency 
hearing on the application for the stay, the plaintiffs 
proffered evidence on the subject of the defendant's 
competence, including expert testimony, which had not been 
considered by the State court.
    It was against the background of that evidence that we 
subsequently saw new evidence emerge, but the evidence that 
concerned me at the very beginning was this evidence proffered 
at the emergency hearing, including expert psychiatric 
evidence, which had not been part of the competency hearing in 
the State court. I am sorry I didn't clarify that earlier.
    Senator Sessions. Well----
    Judge Chatigny. When the competency hearing was reconvened 
in State court, there were expert witnesses on both sides who 
testified on that issue. The trial-type proceeding took 
approximately a week, with two experts on both sides of the 
question, and then the State judge wrote a careful, thoughtful 
opinion, finding that the defendant was competent.
    Senator Sessions. But the Connecticut Supreme Court had 
also reviewed it previously in the record of the previous 
competency hearing and found him adequate, did it not? So you 
were just second-guessing their decision based on a letter from 
a prisoner. Excuse me. He should be able to answer that and 
I'll give you more time. I've gone beyond my time.
    Judge Chatigny. I believe strongly that a district judge 
should defer to the State court, and I do that. In this unusual 
case, I believed that the allegations that were made and the 
evidence that was presented to me in support of those 
allegations raised a sufficient issue about competence to 
require a further review, in no small part because there had 
been no adversarial hearing in the State court where the issue 
could be tested, as we test issues in our system.
    Senator Klobuchar. OK. Thank you.
    Judge Chatigny, I just want to go back over this, your sort 
of exacerbation at the hearing and why you felt that way and 
used that language that you now regret. And I was actually 
listening to it, thinking about times that I've been before 
judges who get mad, even in civil cases, about things. Some of 
the words you used remind me of other words I've heard, so it 
didn't really surprise me, but they don't usually get litigated 
because it never comes out. But I've heard judges use very 
strong language at lawyers, and that's no excusing it, I just 
have.
    And so, but one of the things I found interesting was just 
this succinct statement by the panel, the Second Circuit 
conclusion, about some of the things you had said in exchange 
with the lawyer, who as we know has already said that he didn't 
feel pressured, and I'll get to that in a minute.
    But they said, ``The words cannot be read in isolation. The 
proceeding colloquy clearly shows Judge Chatigny's growing 
exasperation with the fact that Ross was about to be executed 
based on his waiver of legal remedies in the face of a 
reasonable possibility'', and you've already told Senator 
Sessions that if you felt that he was firmly competent, had no 
questions about that, the fact that he waived his remedies and 
was going to be executed, that wouldn't be a problem for you. 
Is that correct?
    Judge Chatigny. That's correct.
    Senator Klobuchar. So you said that--what they say is that 
``in the face of a reasonable possibility that he was not 
competent to give such a waiver'', so you have this situation 
where this new evidence has come before you from his lawyer, so 
you're concerned that he may not be competent, and at the same 
time you have a lawyer--the Second Circuit stated, ``his lawyer 
was refusing to take steps to examine new evidence casting 
doubt on his client's competence. The judge was clearly 
concerned that Paulding's'', that's the lawyer, ``reluctance to 
engage the court in the question of Ross's competence, based on 
Paulding's sense that he was bound by his client's 
instructions, might cause an unconstitutional execution.'' So 
once again, your concern was not that you didn't want to do the 
death penalty or you had a problem with it, it was that you 
were concerned that this could be found to be unconstitutional 
and you wanted to have it done right.
    Judge Chatigny. That's true.
    Senator Klobuchar. And the lawyer--and I can understand 
where the lawyer is coming from--feels lawyers should do what 
their client says. But from your standpoint, and the case law 
shows, the first question the lawyer has to ask is, is my 
client competent or not.
    Judge Chatigny. That's correct.
    Senator Klobuchar. And that's why I can understand you got 
a little heated, whether it was right or not, in trying to make 
sure that lawyer understood that, that, yes, you're bound by 
what your client says but you've got to make sure he's 
competent. OK.
    So, the other piece of this is just some of the things that 
we heard about your feelings on the case itself, and what you 
were trying to do here was to make sure the procedures were 
followed. That's right?
    Judge Chatigny. Yes.
    Senator Klobuchar. OK. And I'd just note that again, in the 
Second Circuit decision, that it says--they say, ``There is no 
indication that Judge Chatigny sought to nullify Ross's death 
sentence. Rather, the transcript clearly reflects his focus on 
insuring that a proper competency determination be made.''
    Then one other thing I wanted to put on the record here was 
that 17 former Federal prosecutors who worked with or appeared 
before you wrote to this Committee about their ``conviction in 
his integrity and fitness to serve on the Court of Appeals''. 
In an April 27, 2010 letter, they describe you as ``unfailingly 
respectful of others and their views with no axe to grind'', 
and asserted that, ``in criminal as well as civil matters, 
Judge Chatigny has proven himself over the course of 15 years 
on the bench to be unbiased, compassionate, and temperate.''
    So I'd like to put that letter on the record as well in 
addition to the ones that we heard from the chief U.S. 
Attorneys that were included in the record.
    [The letter appears as a submission for the record.]
    Senator Klobuchar. Just one other follow-up. You've had how 
many cases? Do you remember how many cases you've had in your 
career as judge?
    Judge Chatigny. Thousands.
    Senator Klobuchar. I think someone told me you had 4,000 
cases.
    Judge Chatigny. That sounds right.
    Senator Klobuchar. OK. And you've issued 450 decisions.
    Judge Chatigny. I thought perhaps more. I think I've had 
approximately 450 criminal defendants come before me for 
sentencing. That's an estimate. The number of opinions, I'm not 
sure.
    Senator Klobuchar. And most of those--we discussed almost 
all of those cases have been upheld. I think I had the number, 
16 cases had been reversed. Is that right?
    Judge Chatigny. I believe so. I'm not sure.
    Senator Klobuchar. And have you had other cases where you 
had to deal with competence and make sure that the defendant 
was competent to stand trial?
    Judge Chatigny. Yes.
    Senator Klobuchar. Is it something that you are acutely 
aware of when you go into these cases?
    Judge Chatigny. Yes.
    Senator Klobuchar. Do you think other judges are concerned 
about that as well?
    Judge Chatigny. I do.
    Senator Klobuchar. OK. I was thinking your son is over 
there. Oh, one has left. It's just too much. I'll talk to him 
later. When you think about all of these cases you had, the 
4,000 cases and all of the work you've done as a judge, what 
are you most proud of? It might not be one case, but just of 
the work and your judicial philosophy, what you've done as a 
judge that you would want them to know.
    Judge Chatigny. Well, thank you for that question. I would 
say that I'm proud of doing a fair and honest job of it day in 
and day out and trying to do my part to maintain public 
confidence in a system of justice that I revere.
    Senator Klobuchar. OK. Thank you very much.
    I think Senator Coburn is next.
    Senator Coburn. Thank you. I'd like to enter into the 
record an affidavit submitted by Mr. Golub of the Connecticut 
Criminal Defense Lawyers Association which states that in fact 
the particular issue you agreed to research related to 
establishing mitigating factors for death penalty cases.
    [The affidavit appears as a submission for the record.]
    Senator Coburn. The other thing I wanted to raise with you 
is, are you aware of Federal statute 28 U.S.C. 2254(e)?
    Judge Chatigny. I believe so.
    Senator Coburn. OK. It states that in Federal habeas corpus 
proceedings, factual determinations of State courts shall be 
presumed to be correct.
    Judge Chatigny. Yes.
    Senator Coburn. And as I understand it, the Connecticut 
courts considered and rejected the allegation that Mr. Ross was 
not competent when he decided not to pursue further appeals, 
and that in the hearing on the public defender's habeas corpus 
petition, however, you said that this finding was ``not binding 
on me, it can't be''. Is that accurate?
    Judge Chatigny. Yes.
    Senator Coburn. And why is it not binding on you?
    Judge Chatigny. Because the procedure that was followed was 
limited and I was presented with evidence raising a substantial 
issue on a matter of life and death.
    Senator Coburn. Thank you.
    I want to go back to one other area and then I'll finish, 
and I'll have some questions for the record.
    You gave a speech at the American Constitution Society at 
the University of Connecticut Law School in which you 
criticized mandatory minimums because ``empathy for individuals 
in a case inevitably comes into play, as it should''. Does 
empathy factor in your decisions in a courtroom?
    Judge Chatigny. No.
    Senator Coburn. Just in sentencing?
    Judge Chatigny. Not in sentencing.
    Senator Coburn. Well, explain that statement to me then. 
You criticized mandatory minimums in that speech, and your 
following statement was, ``empathy for individuals involved in 
a case inevitably comes into play, as it should''.
    Judge Chatigny. Well, I recall the speech. I don't recall 
the comment.
    Senator Coburn. Well, that's a quote exactly.
    Judge Chatigny. Yes. I don't doubt that I made the comment. 
I believe I was referring to not just the defendant, but also 
the victims, as well as witnesses when I referred to the 
individuals, plural, in a case. I think that it is important, 
in a criminal case at sentencing, for a judge to be conscious 
of the interests of all concerned, but the decision needs to be 
based on the facts and the law.
    Senator Coburn. In the same speech you said, ``We shouldn't 
try to drastically reduce departures. Departures are essential. 
The purpose of the Federal Sentencing Guidelines is to provide 
consistency and uniformity.'' I agree with that. ``That way the 
sentences imposed for the same crimes do not vary widely 
depending on the judge the defendant happens to draw on.''
    What factors do you consider in deciding whether or not 
downward departure is appropriate?
    Judge Chatigny. I consider the presentation made by the 
parties, I look at the guidelines with care, and I ask whether, 
on the facts before me, a departure under the guidelines is 
warranted. I recognize----
    Senator Coburn. You're not out of line with all the rest of 
the judges, so I don't want to make that point. I think you've 
followed that fairly well. I do have some questions, however, 
on six child pornography prosecutions and one sexual tourism 
case. You've departed on those cases.
    The reason I'm asking the question is, we have a sexual 
sadism case which looks like you're sympathetic towards, we 
have Megan's Law, which you're trying to give a greater 
constitutional right than what the Supreme Court ultimately 
said was there, and then we have this instance of child 
pornography in which you're going against the Sentencing 
Guidelines. And I may have as well, but the reason for the 
question is, you put all these together, it creates a story 
that would appear that you're soft on sexual crimes, sexual 
pornography, and abuse of children. I know you're not and I'm 
not saying that, but you can understand why those questions 
should be asked.
    Judge Chatigny. Yes. Absolutely. I recognize that a 
narrative has developed here that depicts me in this way, and I 
can assure you that child pornography is abhorrent to me, and 
if I have departed it is only because the facts and the law 
seem to demand it.
    Senator Coburn. Thank you very much. You've been very 
cooperative. Appreciate it.
    Judge Chatigny. Thank you.
    Senator Klobuchar. Senator Sessions.
    Senator Sessions. Thank you. I know you've handled a lot of 
cases, some 4,000 cases. But can you think of any case in which 
you've injected yourself more personally into than this case 
involving a sexual predator who murdered, admittedly, eight 
women?
    Judge Chatigny. I cannot. I have spent years working on 
other cases. This case took about a week, actually, just a 
week. I've given a lot of thought to other cases, and in that 
way invested myself heavily in them. But you're right, this 
case is unique.
    Senator Sessions. I know this judicial panel ruled that you 
shouldn't be disciplined, but there are statements read by our 
distinguished chairman, who's a good prosecutor and knows the 
law, but this was basically not an affirmation of your conduct 
in that hearing, but a finding, according to your fellow 
judges, that you had not violated the Code of Judicial Conduct. 
Would that be right?
    Judge Chatigny. Yes.
    Senator Sessions. I don't think we should overstate that.
    When you said in your sentence--you said he shouldn't have 
been sentenced--``shouldn't have been convicted'', then you 
said ``he shouldn't have been sentenced to death because sexual 
sadism is a mitigating factor--clearly, a mitigating factor'', 
which is finding of major proportions without any record to 
back it up, I would suggest, but you also said, I think, in 
that hearing that Ross was ``the least culpable, the least of 
people on death row''. Did you say that? What did you mean by 
that?
    Judge Chatigny. Thank you for the question, Senator, 
because again I recognize that there is a valid basis for 
concern and it gives me an opportunity to explain. I was 
terribly concerned that an execution was about to occur when 
the issue of mental competence had not been properly evaluated.
    In trying to impress that upon Mr. Paulding, I pointed out 
to him that if you looked at the record in the light most 
favorable to the defendant, all of these things could be said. 
Why was that relevant? Because they all pertain to his mental 
illness. His previous counsel had said that he was so ill that 
he was not guilty, that he was so ill he was not eligible for 
the death penalty. Mental illness pervaded the case and I was 
trying to focus attention on that so that the lawyer would 
reassess his position before it was too late.
    Senator Sessions. Well, it wasn't any question about his 
guilt. He had confessed to that and the evidence was 
overwhelming. So a defense lawyer has got to have some defense 
and insanity is the only one left, I suppose. So just because 
defense counsel pleaded guilty and urged that his client was 
incompetent in a case like this, I think he was probably making 
the only argument or plea that could be made. But you gave that 
great weight, his personal statement that he thought he was--
did you take a personal statement from the counsel or did you 
just review the record of the State court process by which they 
pled mental competency?
    Judge Chatigny. I reviewed the record, such as it was, in 
the very limited time available to me. And I must say----
    Senator Sessions. How would this make him the ``least 
culpable of people on death row''? What did you mean by that?
    Judge Chatigny. If, as has had been claimed, he was in fact 
severely mentally ill, and given the clear relevance of his 
history of severe mental illness to the issue of his competence 
to waive legal remedies, I felt that this was a way of 
addressing the matter with Mr. Paulding's lawyer that might 
cause him to reassess his position, as I believed he had an 
ethical obligation to do.
    Again, I regret my choice of words. I did the best I could 
in the circumstances to follow the law and discharge my 
responsibility. I fell short of doing it as I would have 
wished, in retrospect. I treat it as a learning experience.
    Senator Sessions. Well, I understand that.
    Let me just ask one more thing. Now, in the first hearing 
before we had this teleconference and this occurred, you found 
that the State should--you stayed the execution and you found 
that he was entitled to another hearing on competency. The 
Second Circuit went along with that. They tried to give--all 
judges are given some deference. But the Supreme Court, by a 
5:4 majority, said even giving deference to the trial judge's 
decision processes, there was insufficient evidence to order a 
delay. At that point you didn't have this letter from the 
prisoner, is that right?
    Judge Chatigny. I can't recall the timing exactly, but that 
letter cropped up while the case was on appeal, as I recall.
    Senator Sessions. Well, Madam Chairman, you know these are 
tough hearings and we take a person with thousands of cases. 
You know that story about the law, as the cloud comes over the 
city and the lightening bolt comes out of the sky and says 
you're negligent?
    Senator Klobuchar. That's us.
    Senator Sessions. It's one person and he's declared 
negligent, or you're declared to be in error. You have a lot of 
friends, Judge, and you've obviously done good work on the 
bench. I don't think your integrity has been questioned. So 
we'll be glad to look at this.
    I have a strong feeling that our Federal courts have 
forgotten their role in these cases. Until the last 50 or so 
years, cases weren't retried in Federal court. When you got an 
affirmance by the Supreme Court of a State, it was presumed to 
be final.
    Now we have Federal judges that think they want to review 
everything, second-guess State courts, cost thousands of 
dollars, delay executions, and the Supreme Court, in the 
reversal of your case, I think, was a statement: judges, you've 
got to be careful, you're overreaching here. This does not call 
for another hearing based on the record that they went up to. 
They see them from all over the place.
    So my fundamental concern is along that line, not with you 
in any personal way. I appreciate your testimony. I think 
you've been patient with us and I think you've endeavored to be 
honest and fair in answering the questions.
    Thank you very much.
    Judge Chatigny. Thank you.
    Senator Klobuchar. I appreciate your closing comments 
there, Senator Sessions. Again, Judge Chatigny, I mean, despite 
that people may have disagreements on what the role of a 
Federal court judge should be here, but do you feel, based on 
the Constitution, based on cases handled by Circuit Courts in 
the past, that you had a duty to look at that competency issue 
and make sure that this defendant, however horrific he was, was 
competent before an execution, a decision before he could waive 
his rights and be executed?
    Judge Chatigny. Yes.
    Senator Klobuchar. All right.
    Senator Sessions. Madam Chairman, I'll offer Senator 
Grassley's statement for the record.
    Senator Klobuchar. OK.
    Senator Sessions. He wished to be here and expressed his 
interest in the issues of the case, but had to be at another 
matter.
    Senator Klobuchar. Well, thank you very much, Senator 
Sessions. We'll include that.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Klobuchar. I also just want to include the--you 
know, we've been--I loved Senator Sessions's reference to the 
lightening bolt coming down on one case. But just to clarify 
here, put on the record, that in more than 15 years as a 
Federal judge, the government has never appealed a single one 
of your sentences. As Senator Coburn noted, your downward 
departure rate was completely in the range of other judges, and 
he acknowledged that, even though he touched on a few cases 
with which he disagreed.
    And as much as he may have mentioned cases where you had 
downward departed again in the range with other judges, you've 
also had some cases where you've given out maximum sentences. 
In 2001, a cocaine dealer, 20 years, maximum sentence allowed 
by law. There you had the dealer's defense attorney publicly 
attacking you for imposing such a harsh sentence. Those were 
not the cases were brought up today. They were not brought up, 
but there are cases like that and we acknowledge that as we 
look at your record of 4,000 cases.
    So I just want to thank you for appearing before us. As the 
other Senators have noted, you showed much patience, as did 
your family. Your other son did return, but now he's gone, and 
they have been standing by your side at every moment. I can 
tell that, and they care very much about you. We look forward 
to working with you in the weeks to come here.
    Thank you very much.
    Judge Chatigny. Thank you so much. Thank you.
    Senator Klobuchar. All right. We'll take 1 minute and then 
we'll have our next nominee up.
    OK. Are we ready to go, everyone? Thank you. OK.
    Mr. Gibney, will you please stand to be sworn? You are 
standing.
    [Whereupon, the witness was duly sworn.]
    Senator Klobuchar. Thank you.
    Now the numbers are a little more even here, Mr. Gibney. We 
won't be three to one, and I don't even think we'll need that 
here. But I want to thank you for being here. You certainly had 
a nice testament to you from Senator Webb and Senator Warner, 
both of whom are very well-respected in this body.
    Do you have your family members or friends you'd like to 
introduce?
    Mr. Gibney. I do, your Honor--Senator. Thank you, first, 
Madam Chairman, for the opportunity, and Mr. Sessions for the 
opportunity, to appear before you. I'd also like to thank 
Senators Warner and Webb for their kind remarks, and of course 
President Obama for his kindness in nominating me.
    With me today are my son, John Gibney, III, my future 
daughter-in-law, Jesse Telhorster, and my assistant, Kelly 
Arnett. I'm very proud to have them with me today as well.
    Senator Klobuchar. Well, thank you very much.
    I think I'll start out with the question that I asked of 
Judge Chatigny. That is, as someone who has spent many years in 
private practice with a vast array of cases, how do you 
characterize what you believe will be your judicial philosophy? 
How are you going to look at cases having made that transition 
from private attorney to being a judge, from being an advocate 
to being someone who is a trier of the facts?
    Mr. Gibney. My role as a judge and my judicial philosophy, 
if I'm fortunate enough to be confirmed, would be that I 
believe that a judge's role--a district court judge's role is 
to find the law from examining the text of the Constitution, 
the text of statutes, the relevant Supreme Court decisions, and 
the relevant decisions of the Fourth Circuit Court of Appeals, 
to find the facts exclusively from the evidence that comes 
before me, and to apply the law to the facts.
    Senator Klobuchar. And listening to Judge Chatigny talk 
about what he'd learned in his 16 years as a judge, what do you 
think is the most important quality a Federal judge should 
have?
    Mr. Gibney. I think the most important quality any kind of 
judge should have, Federal judge included, is humility. I think 
that humility--and by humility I don't mean the quality of 
being abased or meek or put down in some way, but rather the 
quality of knowing your place in the world, knowing that it's 
not the center of the world, knowing that everybody in that 
courtroom is just as important as you are, that they have their 
own concerns that are important to them, and that each one of 
them deserves the same respect that you would give to a fellow 
member of the bench.
    Senator Klobuchar. Very good.
    You worked as an Assistant Attorney General in the Virginia 
Attorney General's Office. Can you tell us about your time in 
that office and what skills you learned that will be helpful?
    Mr. Gibney. My time in that office was--thank you for 
asking that question, Senator. My time in that office was--was 
very rewarding and it was there that I honed my skills that 
have allowed me to, in my legal career, represent a lot of 
local governments. I think that what I learned best in the 
Attorney General's Office was the need for hard work at all 
times and the need to--and of course, the need to have the--the 
delight I took in judges who treated all the litigants fairly.
    Senator Klobuchar. Well, you don't have these 4,000 
decisions that we have to examine.
    Mr. Gibney. I don't.
    Senator Klobuchar. I'm sure you're very disappointed about 
that.
    [Laughter.]
    Senator Klobuchar. But you come from the private practice. 
Generally, Federal judges have great discretion to decide 
whether to sit on a case when possible conflicts of interest 
arise. It's therefore important that judicial nominees have a 
well thought out view of when recusal is appropriate.
    Former Chief Justice Rehnquist made clear on many occasions 
that he understood that the standard of recusal was not 
subjective, but rather objective. It was whether there might be 
any appearance of impropriety. How do you interpret the recusal 
standard for Federal judges, and in what types of cases do you 
plan to recuse yourself? I don't need specific examples of 
clients or cases, but just a statement that you will follow the 
applicable law.
    Mr. Gibney. Thank you, Senator. I will, of course, follow 
the applicable law and all the precedents in that area and will 
examine each case closely to see if there's any potential 
conflict that needs to be addressed by me, or even if I think 
there's no possibility of it, to point it out to counsel if 
there's any remote way that anyone could think there was a 
possible conflict.
    Senator Klobuchar. Just one last question. As a lawyer 
who's practiced for so long and is well-known in your 
community, what do you think some of the greater challenges are 
now that are facing the Federal judiciary?
    Mr. Gibney. I think that the--thanks for asking that 
question. I think that the greatest challenge facing the 
Federal judiciary at this time is probably the difference in 
the quality of defense among various defendants. Of course, 
it's not the judge's job to go in and try the case for the 
lawyers, but as we've seen in a number of high-profile cases, 
wealthy people seem to be able to get a different caliber of 
representation than the ordinary folk, and I think that is a 
very difficult question and poses a dilemma to our system.
    Senator Klobuchar. Thank you very much.
    Senator Sessions.
    Senator Sessions. Well, Mr. Gibney, you have a good record 
of trying a lot of cases. I think it indicated some 500 or more 
trials, 90 percent of which you were the sole attorney on.
    Mr. Gibney. That's correct.
    Senator Sessions. Which is indicative of a deep experience 
with the system and should put you in a position to be able to 
handle the decision-making processes that come before a judge, 
recognizing maybe when a lawyer really does need a continuance 
and maybe they don't, or when they've made an honest mess-up in 
their preparation, or whether they're consistently unprepared 
and need to be disciplined, or whatever.
    Do you feel that the experience you have will help you make 
those kind of decisions that make the system work a little 
better?
    Mr. Gibney. Senator, yes. Thank you very much for that 
question. I do feel that way. I've been down in the trenches. 
I've been yelled at by judges, I've lost a lot of cases, I've 
won a lot of cases. I think I understand the difficulties that 
lawyers face in real life in preparing for court and coming to 
court and representing clients, and representing difficult 
clients.
    Senator Sessions. And do you believe that a judge, when 
they put on the robe and take the oath to serve under the 
Constitution and the laws of the United States, that that means 
that you must put aside your personal views, policy concepts, 
political or ideological values and objectively find the facts 
and apply them fairly to the law as written?
    Mr. Gibney. Thank you, Senator Sessions. Absolutely, I do.
    Senator Sessions. Let me ask you this question. In March of 
2000, you told the Greensboro News & Record you did not favor 
mandatory dispute resolution programs, even though the law 
supports them. You stated, ``I think they are grossly unfair to 
the worker'' because employers in non-union settings have 
leverage over an employee, I think in essence you said.
    The arbitrators are not representative of the peer group of 
those who would make up a jury. I understand that you could 
make those points. They're not matters that ought to be--you 
shouldn't be criticized for expressing those views. But my 
question is, with regard to mandatory resolution programs, even 
though you may not support them, will you require them when 
they are required pursuant to contract and case law and 
statutory authority?
    Mr. Gibney. Yes, I will, Senator.
    Senator Sessions. Well, in criminal cases, a lot of these 
powerful defendants are outgunning the prosecutors, so maybe--I 
don't know about it in civil cases, but a lot of individual 
plaintiffs had you for their attorney. I figure you could stand 
up against any of them.
    Mr. Gibney. Well, I've tried to do my best throughout my 
career when the odds are long and when the odds are short.
    Senator Sessions. Well, it is a great legal system we have.
    Mr. Gibney. It is, and I'm very honored.
    Senator Sessions. Individual attorney, individual clients 
can go to someone like you who has great skill and probably can 
contend with any lawyer in the country and sue the biggest, 
fattest corporation, and every now and then get a $100 million 
verdict, whether they deserve it or not, sometimes. So I think 
the system works pretty well.
    I think it is appropriate for a judge in a case to not--to 
not allow a poorer client to be taken advantage of. How would 
you evaluate that process about what you might do if an 
outgunned young lawyer is maybe being taken advantage of a bit? 
What do you think the responsibility of a judge is when you see 
something like that occur in your courtroom?
    Mr. Gibney. Senator, thanks for that question. That's a 
very difficult question. When do you jump in when someone is 
ineffectively assisting a client in a criminal matter.
    Senator Sessions. Or civil.
    Mr. Gibney. Well, civil is a little different.
    Senator Sessions. It's a little different. But----
    Mr. Gibney. But I would try, to the best of my ability, to 
make sure that the ground rules are fair for everybody and that 
both lawyers have an equal opportunity to put on their case. If 
I sensed that in a criminal case we were reaching a stage where 
there was ineffective assistance of counsel as defined by the 
relevant Supreme Court decisions, which is a pretty stiff 
standard, in that case I would probably step in in some way--
and I'm not sure how at this time--and try to make sure that 
whatever process we went through was fair to the defendant.
    Senator Sessions. Well, you're right, it's not an easy 
thing. I've seen judges avoid error sometimes in an appropriate 
way without, I think, being unfair to any party. But thank you 
so much. I'm impressed with your experience. I think the kind 
of experience you bring to the bench is valuable and it should 
stand you in good stead.
    Mr. Gibney. Thank you, Senator Sessions. I've been very 
fortunate to be a lawyer as long as I have, in what you denoted 
is a great profession and a great system.
    Senator Klobuchar. Well, thank you very much, Senator 
Sessions. Thank you, Mr. Gibney. Now, we could just hang out 
and see if our colleagues return to ask you questions or we 
could adjourn the hearing.
    So I want to let everyone know that the record will remain 
open for 1 week, and we wish you good luck, Mr. Gibney. We're 
all impressed by your credentials. I don't want to speak for 
everyone, but we're impressed--I'm impressed by your 
credentials, as well as Judge Chatigny's. I want to thank you 
for this civil hearing and that we're able to complete it, and 
having your family here I'm sure is special as well.
    Thank you. The hearing is adjourned.
    Mr. Gibney. Thank you, Senator.
    [Whereupon, at 4:30 p.m. the Committee was adjourned.]
    [The biographical information follows.]
    [Questions and answers and submissions for the record 
fellow.]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


  NOMINATIONS OF SCOTT M. MATHESON, JR., NOMINEE TO BE UNITED STATES 
CIRCUIT JUDGE FOR THE TENTH CIRCUIT; JOHN J. MCCONNELL, JR., NOMINEE TO 
BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND; JAMES 
K. BREDAR, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT 
   OF MARYLAND; ELLEN LIPTON HOLLANDER, NOMINEE TO BE UNITED STATES 
DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND; AND, SUSAN RICHARD NELSON, 
    NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF 
                               MINNESOTA

                              ----------                              

                     THURSDAY, MAY 13, 2010
                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:30 p.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, presiding.
    Present: Senators Feingold, Whitehouse, Klobuchar, Franken, 
Sessions, Hatch, and Kyl.

 OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 
                   FROM THE STATE OF MARYLAND

    Senator Cardin. The Judiciary Committee will come to order. 
I am going to acknowledge in the beginning that we may get 
interrupted with a vote on the floor of the U.S. Senate. So we 
are going to try to expedite this hearing as quickly as we can, 
from the point of view that we have a lot of our Senators that 
want to be heard in introducing their nominees.
    Today, the Committee will consider five judicial 
nominations. I want to thank Senator Leahy for giving me the 
opportunity to chair this hearing.
    Panel one will consist of Scott Matheson of Utah to be U.S. 
Circuit Judge for the Tenth Circuit. Panel two consists of four 
district court nominees; John McConnell of Rhode Island, Susan 
Nelson of Minnesota, Ellen Hollander of Maryland, and James 
Bredar of Maryland.
    Let me take this opportunity to particularly talk about, 
with pride, the two Maryland nominees that are before us. I 
want to commend and congratulate Senator Mikulski for the 
process that she initiated in the State of Maryland for making 
recommendations to the President on our nominees to the bench.
    I believe the process that she established brought forward 
the best possible candidates for judicial appointment, and I 
think the Committee is going to be very pleased by the two that 
are before us today.
    I look forward to Senator Mikulski formally introducing our 
two nominees, Judges Hollander and Bredar.
    Judge Ellen Hollander currently serves as judge on the 
Maryland Court of Special Appeals, which is our second highest 
court, that hears mandatory appeals from the state courts of 
Maryland. She has served as a judge on that court since 1994. 
She has broad experience on the bench, and she would be 
replacing Judge Andre Davis, who was recently appointed to the 
Court of Appeals for the Fouth Circuit.
    I was pleased to attend last month's investiture with 
Senator Mikulski for Judge Davis, and we now are bringing 
forward Judge Hollander for that position.
    She has been an active member of the bar since 1974 and has 
received the highest possible rating from the American Bar 
Association.
    I also want to comment that she is extremely active in our 
community, served on Goucher Board. I served on Goucher Board, 
had a chance to personally observe her activism in our 
community. She is very active in the Jewish charity issues, and 
will make a great addition, I believe, to the Maryland District 
Court.
    Judge Jim Bredar comes to this Committee with a wide range 
of courtroom and litigation experience. He served as a Federal 
prosecutor in Colorado for 4 years before coming to Maryland 
and serving as a Federal public defender for 6 years. And since 
1998, he has served as a U.S. magistrate judge for the U.S. 
District Court for the District of Maryland. So he is very 
familiar with the workload of our Federal bench.
    He would be replacing Judge J. Frederick Motz from 
Baltimore. Judge Motz has taken senior status. Let me thank 
Judge Motz for his 15 years of service on the bench, 
particularly as our chief judge from 1994 to 2001. I would also 
like to mention that Judge Motz's wife continues to serve with 
great distinction on the Fourth Circuit, and it is fitting, 
indeed, that Judge Motz was the official that swore in Judge 
Bredar as a U.S. magistrate judge in 1998.
    Judge Bredar also comes with a great deal of experience in 
helping our community and has been well recognized for that, 
and we very much, again, appreciate his background and 
willingness to continue to serve.
    I need to point out, if you look at his background, I am 
particularly impressed that he worked as a park ranger and ski 
patroller in Colorado. That makes me very jealous.
    Let me also mention the three nominees that are before us 
that will be introduced formally by their home state Senators. 
Scott Matheson of Utah comes to this Committee with experience 
of being a prosecutor, a law firm attorney, professor of law, 
and dean of a law school. And he comes from a very 
distinguished family of public servants, and I have had the 
opportunity of serving with his brother, Jim, who has been a 
member of the House of Representatives.
    John McConnell of Rhode Island is a distinguished lawyer 
with more than 25 years of private practice in Rhode Island. He 
has focused on complex litigation and comes to this Committee 
with a broad background for the district court.
    Our final nominee is Susan Nelson of Minnesota. Judge 
Nelson has served as a U.S. magistrate judge for the District 
of Minnesota for the past 10 years. As a magistrate judge, she 
has handled hundreds of cases and is very well familiar with 
the workload of our district court.
    So I want to welcome all five of our nominees. I want to 
thank them and their families, because I know this is a team 
effort, for their willingness to, in most cases, continue to 
serve in a public position of trust on behalf of the people of 
our country.
    At this point, I am going to turn to the members of the 
Senate to introduce their nominees, starting with Senator 
Hatch, who has been a very active member of this Committee, a 
leader of this Committee, and a great friend of all.
    Senator Hatch.

  PRESENTATION OF SCOTT M. MATHESON, JR., NOMINEE TO BE U.S. 
CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY HON. ORRIN HATCH, A U.S. 
                 SENATOR FROM THE STATE OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman, and thank you 
for your kind remarks. I am quite thrilled here today to be 
able to present our nominee for the Tenth Circuit Court of 
Appeals, Scott Matheson.
    Scott Matheson is nominated by President Obama to the U.S. 
Court of Appeals for the Tenth Circuit. He continues his 
family's dedicated service to our State of Utah and its 
educational institutions. His father was Governor of Utah, one 
of the great Governors that we had, and had had great 
experience in his prior work.
    Scott brings to this nomination both personal qualities of 
character and integrity and a variety of relevant experiences. 
He has degrees from Stanford, Oxford, and Yale.
    His three decades of legal experience includes private 
practice with the distinguished law firm of Williams and Conley 
here in Washington; public service as a deputy county attorney, 
and as U.S. Attorney for Utah, and long-time experience as a 
very thoughtful scholar.
    He has been on the faculty of the S.J. Quinney College of 
Law at the University of Utah since 1985, where he is currently 
the Hugh B. Brown Presidential Endowed Chair in law, and he 
holds that chair.
    Over the years, he has taught civil procedure, 
constitutional law, evidence, First Amendment, and intellectual 
property. In addition to being in the classroom, Scott also 
serves the law school as an associate dean for academic affairs 
and for 8 years as dean of the law school.
    He also served on the advisory and governing boards of the 
Hinkley Institute of Politics at the University of Utah, and 
the selection committees for different fellowships and prizes 
granted by the university.
    He also served for 7 years on the Committee overseeing the 
Tanner Lecture on Human Values, one of several nationally and 
internationally renowned forums sponsored by the Tanner 
Humanity Centers at the University of Utah.
    The Tanner Lectures are given several times a year at 
renowned institutions, including Oxford and Cambridge, Harvard, 
Yale and Princeton, and the Universities of Michigan, 
California and, most importantly, of course, Utah.
    The range of lecturers is breathtaking, including Richard 
Dawkins, Marion Wright-Edelman, and Solomon Ruschke, to Charles 
Freid, Judge Richard Posner, and Supreme Court Justices Stephen 
Breyer and, one of all of our favorites, I am sure, Anthony 
Scalia; and I have to say Breyer is certainly in that category, 
as well. Utahns are all very proud of this fine institution.
    Scott has received a number of awards for his service in 
this and other capacities, including the faculty achievement 
and services award from the university and awards for his 
service to the Federal Bar Association and the Utah Minority 
Bar Association.
    Scott is not the first of President Obama's judicial 
nominees to come from the world of academia. Scott, however, 
has as greater variety of experience, including the real world 
practice of law, especially his service as a Federal 
prosecutor. He is a man of integrity, ability and dedication, 
and I personally know him very, very well and have nothing but 
the highest opinion of him. He is a person who will distinguish 
himself on the court, as he has in every other endeavor of his 
life.
    By the way, I am happy to see his wonderful mother here 
today. It was not long ago she went through some trying times 
and we were all praying for her. She is a wonderful leader in 
Utah, one of the great women that we have out in our state; 
and, also, his beautiful wife and other members of the family.
    Above all, I am really happy to have his brother here. Jim 
Matheson has been a Congressman in the House of Representatives 
for a decade, and I think he is one of the finest people I know 
and he is just a good person and a hard worker and a very good 
Member of Congress.
    So I am pleased to introduce this man of integrity and 
ability and dedication as a nominee to the Tenth Circuit Court 
of Appeals.
    Mr. Chairman, I want to thank you for your kind courtesy to 
me and I naturally expect kind courtesies to all these nominees 
here today, and I know you are the type that will make sure 
that happens.
    Thanks so much.
    Senator Cardin. Senator Hatch, thank you. You are always 
very cordial in your introductions, and I do acknowledge 
Congressman Matheson, who is here, who I had the opportunity to 
serve with in the House.
    We will now turn to Senator Mikulski.

  PRESENTATION OF ELLEN LIPTON HOLLANDER, NOMINEE TO BE U.S. 
   DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND AND JAMES K. 
 BREDAR, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF 
  MARYLAND BY HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE 
                       STATE OF MARYLAND

    Senator Mikulski. Thank you very much, Mr. Acting Chairman.
    It is with a great deal of pride and enthusiasm that I 
present, along with you, two outstanding Marylanders to be 
nominated to the District Court of Maryland. I am proud to be 
here today to introduce Judge Ellen Hollander and Judge James 
Bredar.
    It is a great honor that both you and I recommended these 
two outstanding people to President Obama and we thank him for 
their nomination.
    I also wish to thank Senators Leahy and Sessions for 
agreeing to such a prompt hearing on this matter.
    Mr. Chairman, as you know, I take my advice and consent 
responsibilities very seriously and the opportunity to 
recommend to a President of the United States a nominee for the 
Federal bench is indeed a great honor, but it is a great 
responsibility.
    My criteria are that any nominee must have absolute 
integrity, judicial competence and temperament, a commitment to 
core constitutional principles, and a history of civic 
engagement in our own State of Maryland.
    I am happy to report to the Committee that Judges Hollander 
and Bredar meet these standards and they meet them in an 
extraordinary way.
    I want to also bring to the Committee's attention that it 
is not just my opinion or even your opinion, Mr. Chair, but the 
opinion of the American Bar Association. The ABA gave them a 
unanimous--both of them--a unanimous well qualified 
recommendation.
    One looks at their background and sees that they bring 
unquestionable competence and preparedness and a deep 
understanding of how ordinary Americans live. They bring 
seasoning in the law and sensibility in the application of the 
law.
    Judge Ellen Hollander, who was elevated in November--Judge 
Hollander has the experience that makes her a top-notch 
nominee. She has served Maryland state courts at both the trial 
and the appellate level for more than 20 years.
    She has served in a leadership role on the Maryland Court 
of Appeals' Rules Committee and as a chair of the Appellate 
Rules Committee.
    Prior to taking the bench, Judge Hollander practiced law in 
both the public and private sectors, including 4 years as a 
prosecutor. She is a graduate of Georgetown Law, where she was 
the editor of the American Criminal Law Review. She has 
received her Bachelor of Arts from Goucher.
    I know both of you are on the Goucher board. I have an 
honorary degree from Goucher. I do not know if that counts, but 
I will tell you, what Hollander does--Judge Hollander--really 
does count.
    Judge Hollander has received numerous community awards. I 
will not list them, but what I want to bring to the Committee, 
it is not the number of awards, it is the number of things that 
she has done to get the awards; a strong advocate of women and 
children; on the board of the Jewish Council, Community 
Relations Council; making sure that we do many things to 
advocate for the poor, the disenfranchised, and the 
marginalized. She is, again, a very top nominee.
    Judge Bredar, if confirmed, will fill the seat of Judge 
Motz, as you have indicated. In him, we have a highly qualified 
nominee, who has served the justice system from both sides, a 
defense attorney and a prosecutor.
    But he brings some unique background in the sense that he 
was a Federal public defender for 6 years, where he revitalized 
and expanded the office; and, before that, he was a prosecutor. 
He would be the first Federal public defender to serve on the 
Maryland Federal bench.
    He also brings 12 years of judicial experience as a Federal 
magistrate, and Chief Justice Roberts recently appointed him to 
the Committee on Federal-State Jurisdiction.
    He, too, is a graduate of Georgetown Law Center. He has got 
a bachelor's degree from Harvard. I am sure he will get an 
honorary degree from Goucher, as well.
    [Laughter.]
    Senator Mikulski. And he has himself been active in the 
community, whether it is volunteering at children's schools, 
being at PTA, he has been a soccer dad, and he has been an 
advocate for keeping the courthouse door open for everyone.
    Again, both bring the characteristics that one expects in a 
judge, but I think, again, I will say they are so well 
seasoned, but they are so sensible in the application of the 
law, and that is what we are looking for in judges.
    So I hope that the Committee unanimously reports them out, 
and I hope that we can confirm them expeditiously.
    Thank you very much.
    Senator Cardin. Senator Mikulski, thank you very much. As 
the Senator from Maryland, I just want to concur in Senator 
Mikulski's comments about Judge Hollander and Judge Bredar. We 
are very proud to submit our recommendations to the President.
    We think we have brought forward two of the most talented 
people we have in our state and the Nation to serve on our 
Federal bench and we are very proud that they are willing to 
step forward in public service.
    With that, I want to recognize Senator Jack Reed.

  PRESENTATION OF JOHN J. MCCONNELL, JR., NOMINEE TO BE U.S. 
 DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND BY HON. JACK 
      REED, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Reed. Thank you very much, Mr. Chairman and Senator 
Hatch and my colleagues on the Committee. I also want to thank 
Senator Leahy and Senator Sessions for their prompt attention 
to this nomination by the President of Jack McConnell to be 
Rhode Island's next U.S. District Court Judge.
    Senator Whitehouse and I are extraordinarily proud that the 
President accepted our recommendation. And this is a proud day 
for Jack's family, also, and his colleagues. More than 20 of 
them are here today.
    Rhode Island is vastly underpopulated, but it is worth the 
effort.
    [Laughter.]
    Senator Reed. They all have reason to be proud. Jack's 
mother, Jane, is here; his father-in-law and mother-in-law, 
Justice Donald and Ursula Shea. I might say that Justice Shea 
is a retired member of our Rhode Island Supreme Court, one of 
the most distinguished members of our Rhode Island Supreme 
Court, whose example of integrity and intelligence continues to 
resonate through the legal chambers of Rhode Island.
    Jack himself matches that sense of integrity and 
intellectual excellence. He is extraordinarily qualified as an 
attorney. He is perhaps one of the handful of attorneys in 
Rhode Island who have ranked among the very best in the United 
States.
    There is no doubt, in my mind, about his ability to be a 
district judge. He has exceptional skills, impartiality, and 
professionalism, and I fully expect Jack to be an outstanding 
jurist.
    Indeed, a broad array of Rhode Islanders, clergy, business 
people, Republicans, Democrats, corporate attorneys, defense 
attorneys, have come forth voluntarily and recognized and 
expressed their support for Jack.
    They support him because he is an outstanding attorney. He 
has represented a variety of clients. He has done so with 
great, great legal skill and great integrity, and he will do 
that as a district court judge, represent the people of the 
United States with skill and integrity.
    You can read his resume and find out all the cases and all 
the professional data, but I want to talk about Jack McConnell 
as a person. He is someone who is deeply committed to helping 
his community, not simply by donating and attending social 
events and charitable events.
    You will find Jack in the community. He, every Monday, 
serves breakfast at Amos House, our soup kitchen, our biggest 
soup kitchen. We have something in common. I started out as the 
pro bono lawyer for Amos House about 25 years ago.
    It is not attention-getting. It is just innately decent and 
caring of his community, and that is Jack.
    He has learned his lessons from his father and mother. His 
father was a Marine in Korea, came home, built a strong family, 
and gave Jack, along with his mother, Jane, the inspiration to 
work hard, but not simply for his own ambition, but for a 
better community.
    He has done this. He has juggled his family life. He has 
made time to be a big brother for about a decade to a young man 
in the poorer part of our capital city of Providence. He has 
taught First Communion classes. He has been a volunteer at the 
homeless legal clinics in Providence and Pawtucket.
    He has served as a key member of the board of Crossroads, 
which is our largest homeless organization in the state. He has 
been a chair of the Providence Tourism Council. He has worked 
tirelessly not only as an attorney, but as a citizen. And these 
are the type of contributions that give him the perspective to 
sit on a court, to be a judge who understands the people who 
are before them; not just the wealthy, but every person who 
stands before him.
    His innate sense of fairness, his innate sense of decency 
will make him a superb judge, and I am very enthusiastic in my 
support.
    I join my colleague, Senator Whitehouse. I thank him for 
his excellent work here and his collaboration in this 
nomination. Senator Whitehouse, thank you.
    Today, we are here proudly to ask this Committee for its 
consideration of a great lawyer and a great man.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Reed. And, Senator Reed, 
you are certainly excused to leave.
    The remaining introductions will be done from the dais, 
since they are members of the Judiciary Committee, starting 
with Senator Whitehouse.

  PRESENTATION OF JOHN J. McCONNELL, JR., NOMINEE TO BE U.S. 
DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND BY HON. SHELDON 
   WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Mr. Chairman. I am very 
proud to join my senior Senator, Jack Reed, in introducing Jack 
McConnell to the Committee.
    As was the case with Judge Rogeiree Thompson, who was 
confirmed in March to a seat on the First Circuit Court of 
Appeals, it was a great pleasure for me to participate in 
Senator Reed's process to identify the best candidate for a 
judgeship on the U.S. District Court for the District of Rhode 
Island.
    I was proud to join him in recommending Jack McConnell to 
President Obama, and thank the President for recognizing in 
Jack McConnell the qualities that will make him a tremendous 
addition to the Federal bench in our state.
    Jack McConnell's life has been a classic American story of 
success through hard work. As Senator Reed mentioned, Jack was 
born in Providence, grew up in Warwick, Rhode Island, graduated 
from Brown University, and, after college, earned his J.D. from 
Case Western Reserve University School of Law, before returning 
to Rhode Island in 1983 to clerk for Associate Justice Donald 
F. Shea of the Supreme Court of Rhode Island.
    This clerkship was more eventful than Jack expected, as he 
later married Justice Shea's daughter in 1986. Jack has since 
become a leading light in Rhode Island's bar and a leader 
within our community. He has generously supported and served on 
countless boards of educational, charitable, and artistic 
institutions across our state, including Save the Bay, the 
Genesis Center, the Providence Tourism Council, Crossroads 
Rhode Island, the Trinity Repertory Theater, and Roger Williams 
University. Our state has benefited greatly from that public 
service.
    Jack now is nominated to undertake another type of service 
for which he is impeccably qualified. There is no question that 
he has the legal expertise and experience necessary for service 
as a district court judge.
    He has tried scores of cases nationwide, an ideal 
qualification for a district court nominee. He understands 
motion practice. He has experience in criminal and civil cases, 
and he quickly grasps the most complex and novel legal issues.
    I know Jack's qualifications are first rate, because I 
worked with him when I served the people of Rhode Island as 
their attorney general. At the time, Rhode Island faced a 
public health crisis from lead poisoning. Providence was 
described by our lead newspaper as the ``lead paint capital of 
America.'' This was attributed to high levels of lead in paint 
in older homes.
    As attorney general, I sought relief from lead paint 
manufacturers to help Rhode Island families whose children bore 
the brunt of this scourge.
    When I worked with Jack in a case where I was deeply 
involved as leader of the litigation team, I saw a capable 
attorney of the highest integrity and character, who 
understands and follows the highest principles of our legal 
profession.
    Jack also has been active for years in Rhode Island 
democratic politics. Over the years, he has been with me and he 
has been against me. He understands now that those days of 
politics are over. He understands very closely, from his 
father-in-law's experience, also a Democrat-turned-judge, how 
important it is that he put aside those things as he enters 
this higher calling.
    It is this principled understanding of the role of our 
courts that particularly recommends Jack to the Committee's 
consideration and that has called forth such extensive and 
remarkable support from the Republican community in Rhode 
Island.
    I have no doubt that Jack will be an impartial judge and 
that he will uphold the law and apply it conscientiously to the 
facts of each case.
    The touchstone of our legal system is equal justice under 
law. I am confident that Jack McConnell will meet that standard 
as a judge.
    In sum, Jack is an exceptionally qualified nominee who will 
make a fair, talented, and honorable judge.
    I thank the Committee for holding this hearing. I thank the 
Chairman. And I look forward to Jack's ultimate confirmation 
and service on our local district court.

   PRESENTATION OF SUSAN RICHARD NELSON, NOMINEE TO BE U.S. 
   DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA BY HON. AMY 
     KLOBUCHAR, A U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Klobuchar. [Presiding.] Thank you very much, 
Senator Whitehouse. Senator Cardin went to vote, and so we are 
all going to be rotating in and out here, as a vote has been 
called.
    But it is my distinct pleasure to introduce and endorse 
Susan Richard Nelson as the President's nominee to become a 
Federal district court judge for the district of Minnesota.
    She is here with her husband, Tom, way back there behind 
all the people from Rhode Island, Sheldon, I think, right 
there.
    I always like to tease Senator Whitehouse that the State of 
Rhode Island is always used for comparative purposes, like the 
iceberg that let loose was the size of Rhode Island. Now we can 
say there are enough people in here to fill the State of Rhode 
Island.
    She is also here with her oldest son, Rob, and her younger 
son, Michael, who I understand is a junior at St. Olaf College 
in Minnesota, who should be studying for his finals. So I was 
picturing the two of them last night, he is studying for his 
finals, while his mom is studying for this hearing. So I do not 
know what would be harder.
    Susan Richard Nelson has been a magistrate judge in the 
district of Minnesota for the last 10 years, where she has 
earned the respect of litigants, lawyers, and judicial 
colleagues alike.
    I can say unequivocally that she has the judicial 
temperament, the personal integrity, and the keen legal mind 
that are absolute prerequisites for being a great judge.
    Judge Nelson was born in Buffalo, New York and graduated 
from Oberlin College with high honors in 1974. She received her 
law degree from the University of Pittsburgh, where, by the 
way, Senator Hatch attended. She received her law degree in 
1978, where she was a member of the esteemed Order of the 
Barristers.
    Prior to becoming a magistrate judge in 2000, Judge Nelson 
was a civil litigator in private practice for 22 years. Judge 
Nelson is extremely qualified to be a district court judge in 
Minnesota. She has more than three decades of legal experience, 
though, of course, the last 25 were really the best, because 
they occurred in Minnesota.
    Her decade of experience as a magistrate judge has given 
her excellent preparation for the role of district court judge. 
In addition to conducting hearings, ruling on motions, and 
conducting settlement negotiations, she has also presided over 
multiple trials.
    In essence, she will be ready to fill her position her 
first day on the job.
    Throughout her tenure as a magistrate judge, Judge Nelson 
has gained a reputation as a fair, but stern judge, one who is 
thorough and prepared. She has been described as a judge who 
favors neither plaintiffs nor defendants, who listens carefully 
to both sides of every matter she hears, and who can be relied 
upon to give articulate, well reasoned explanations for her 
decisions.
    Judge Nelson was highly recommended to this Committee. She 
was initially recommended by a judicial selection committee, 
consisting of Minnesota attorneys, judges, and members of law 
schools. That judicial selection Committee received countless 
letters and e-mails in support of Judge Nelson.
    Moreover, the ABA standing Committee on the Federal 
Judiciary unanimously rated Judge Nelson as well qualified. 
This is the highest rating that the Committee awards.
    Judge Nelson is also involved in a variety of civic and bar 
activities. She is currently a member of the Minnesota Women's 
Lawyers Advisory Board and served as the group's president. She 
often represents the organization at speaking engagements and 
has written a column for the group's monthly newsletter for 
quite a while.
    In addition to her work with the Minnesota Women's Advisory 
Board, Judge Nelson has served as a mentor for disadvantaged 
kids.
    I also wanted to mention the importance of this nomination 
to the district of Minnesota generally. Our district's caseload 
has increased significantly in recent years. From 2008 to 2009, 
the district saw a 54 percent jump in the number of civil cases 
filed.
    With over 5,000 civil cases currently pending and only six 
judges on full-time status to deal with those cases, not to 
mention the docket of criminal cases on top of that, our 
district really needs Judge Nelson to be confirmed quickly.
    I believe that Susan Richard Nelson will make a fine 
Federal district court judge for the district of Minnesota. It 
is my honor to introduce her to the Committee, and I urge her 
swift confirmation.
    At this point, because of the vote and because I need to 
vote, we are going to recess the hearing for a few minutes for 
Senator Cardin to return, and then I know that Senator Franken 
is also going to give an introduction for Judge Nelson.
    So I recess this hearing, subject to the call of the chair. 
I am missing a gavel, so I guess I will use Senator Specter's 
name thing. There we are.
    [Whereupon, at 3 p.m., the hearing was recessed.]

  PRESENTATION OF SCOTT M. MATHESON, JR., NOMINEE TO BE U.S. 
CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY THE HON. RUSS FEINGOLD, 
           A U.S. SENATOR FROM THE STATE OF WISCONSIN

    Senator Feingold. [Presiding.] Call the Committee back to 
order.
    When Senators come back from vote, we will start the 
hearing again. I am Senator Feingold from Wisconsin, and it is 
my pleasure to speak in support of Scott Matheson, Jr., who 
President Obama has nominated to fill a vacancy on the U.S. 
Court of Appeals for the Tenth Circuit.
    I have known Scott as a close friend for many, many years. 
We first met as students together at Oxford. Scott has a rare 
combination of intellect, legal knowledge, experience, and 
probity that makes him perfect for an appellate court 
judgeship.
    I could not possibly recommend anybody more strongly. From 
1993 to 1997, Scott served as U.S. Attorney for the District of 
Utah. Faced with challenging cases, he developed legal 
positions that revealed his extensive knowledge of the law and 
unwavering fair-mindedness.
    A particularly revealing example is when a U.S. Supreme 
Court decision, Hagen v. Utah, in 1994, threatened the 
viability of Federal criminal convictions for crimes committed 
on the Indian reservation in eastern Utah. The Court found that 
the reservation was a patchwork of mixed state, private and 
Federal land.
    So the issue facing the courts after Hagen was whether the 
Federal Government had jurisdiction when the crimes were 
committed. Scott recognized that it would have been legally 
improper to sustain convictions rendered by a court without 
subject matter jurisdiction, but it also would have been 
manifestly unfair to void otherwise valid convictions and force 
victims to go through new trials.
    Scott was able to find an answer that honored the Supreme 
Court decision, but protected all of the otherwise valid 
convictions, stretching back decades. So in the words of 
Scott's first assistant, David Schwendiman, with whom my staff 
communicated, quote, ``It was brilliant legal work, but typical 
of Scott. Scott's excellence was well recognized among his 
colleagues.'' According to David Schwendiman, ``When it came 
down to it, Scott was the finest lawyer in the office and, in 
my view, probably the best tenth circuit advocate. When we were 
in the courtroom in the trial that we did together in the tenth 
circuit, he was truly the person who knew more than anyone else 
in the courtroom both about the law and the facts. It will be 
the same if he is appointed to the bench.''
    There are many judges in the Federal Court of Appeals with 
excellent academic credentials, and Scott's match up with the 
best of them. I know Senator Hatch has already reviewed those, 
so I will not go over that again. But I am, of course, very 
aware of his accomplishments.
    Scott has been deeply involved, as well, in Utah politics, 
and, in my opinion, he was born to be a judge. Beyond his 
outstanding intellect and experience, his fair-mindedness and 
probity make him perfect for the role.
    Scott never hesitates to do the right thing, even when it 
is unpopular. I believe Scott Matheson is an outstanding 
nominee and will be an outstanding judge, and so I am very 
pleased that the President has nominated him and I am proud to 
support him today.
    Thank you, Mr. Chairman.
    Senator Hatch. Mr. Chairman.
    Senator Cardin. [Presiding.] Senator Hatch.
    Senator Hatch. After listening to Senator Feingold, I am 
starting to have some doubts here.
    [Laughter.]
    Senator Feingold. That was my only hesitation.
    Senator Hatch. No. That is great praise and I am very 
grateful that you would take time to come and talk about our 
great nominee.
    Senator Cardin. Senator Franken.

   PRESENTATION OF SUSAN RICHARD NELSON, NOMINEE TO BE U.S. 
  DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA BY THE HON. AL 
      FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Franken. I told you to finish before he got here.
    [Laughter.]
    Senator Franken. Mr. Chairman, I am just very proud in 
joining my senior Senator, Senator Klobuchar, in introducing 
Judge Susan Richard Nelson, the nominee for the U.S. District 
Court for the District of Minnesota.
    I would like to thank Chairman Leahy and Senator Sessions 
for moving quickly to schedule this hearing. I would also like 
to congratulate all the nominees here today on this great 
honor, and thank you and your families for being with us today.
    Judge Nelson, I am just so pleased that you can be with us 
today. You are an extraordinarily qualified nominee and you 
make our state proud. I also want to welcome your husband, Tom, 
and your sons, Rob and Michael, to this hearing today.
    Judge Nelson graduated from Oberlin College, and I missed 
Senator Klobuchar's introduction. I hope I am not covering a 
lot of the same territory, but this is the day this is 
happening, so why not hear that you graduated with high honors 
twice, and went on to the University of Pittsburgh Law School.
    She practiced law for more than 20 years, gaining 
experiences in many areas of the law during her time as a 
partner at Robins, Kaplan, Miller and Ciresi in Minneapolis.
    Judge Nelson was named a Super Lawyer, one of Minnesota's 
leading lawyers, for five consecutive lawyers. For the past 10 
years, she has served as a U.S. magistrate judge in the 
Minnesota district court. Judge Nelson's decisions while 
serving as a magistrate judge illustrate her strong commitment 
to justice and to the rule of law.
    She has decided a wide range of cases on topics ranging 
from employment discrimination to deceptive trade practices. 
She conducts settlement conferences nearly every week, and has 
presided over several cases to verdict.
    Minnesota has a strong tradition of fighting for access to 
justice and Judge Nelson has upheld this principle during her 
time as magistrate judge. In 2005, the Hennepin County Bar 
Association gave her the judicial professionalism award, which 
is given to the judge who, quote, ``best exemplifies the 
pursuit of the practice of law as a profession, including the 
spirit of public service and promotion of the highest level of 
competence, integrity, and ethical conduct.''
    Are you still with us, Senator Hatch? That is good, right?
    Senator Hatch. I have to admit, you have been stultifying 
me a wee bit here.
    Senator Franken. All right. I am sorry.
    Senator Hatch. But I want you to know I am all ready for 
your nominee, because she----
    Senator Franken. Then why am I even continuing?
    Senator Hatch. Wait, wait, wait. She graduated from the 
University of Pittsburgh and I think Senator Cardin might very 
well be, too.
    Senator Cardin. We sort of have a bias toward University of 
Pittsburgh up here.
    [Laughter.]
    Senator Franken. Well, I do not feel one way or the other 
about it, frankly.
    [Laughter.]
    Senator Hatch. That is typical. I understand that.
    Senator Cardin. The Senator's time has expired.
    [Laughter.]
    Senator Franken. I ask for another 2 minutes.
    Judge Nelson is also a former president of Minnesota Women 
Lawyers and deeply involved in her community. She has supported 
a wonderful organization that I have worked closely with, 
Minnesota Advocates for Human Rights. She is also involved with 
the Bloomington, Minnesota American Legion, the Minneapolis 
Jewish Community Center, and the Bloomington Classic Baseball 
League, among other civic organizations.
    This diversity of experiences has helped her understand law 
and the community from many different perspectives, a quality 
that will serve her well as a district court judge.
    As a district court judge, Judge Nelson will continue to 
have many of the responsibilities she has performed so 
admirably for the past decade. Judge Nelson has been rated, 
quote, ``unanimously well qualified'' by the American Bar 
Association, the highest rating possible.
    I urge my colleagues on the Committee to support her 
nomination, and I look forward to quick action both in 
Committee and in the full Senate.
    Thank you, again, Judge Nelson, for being here. And thank 
you, Mr. Chairman, for the opportunity to introduce her.
    Senator Cardin. Thank you, Senator Franken.
    We now will proceed to our first panel, which will be Scott 
Matheson.
    [Witness sworn.]
    Senator Cardin. Mr. Matheson, you may proceed. But as is 
the tradition of our Committee, if you have family members that 
are with you, it would be appropriate to introduce your family. 
We know this is a family effort.

   STATEMENT OF SCOTT MATHESON, NOMINEE TO BE UNITED STATES 
           CIRCUIT COURT JUDGE FOR THE TENTH CIRCUIT

    Mr. Matheson. Well, thank you very much, Mr. Chairman. And 
it's an honor to be here and I'm delighted to introduce family 
members who are with me this afternoon.
    I will start with my wife, Robyn, who is seated directly 
behind me. And to her left is my daughter, Heather. My son, 
Briggs, is here in spirit, but he's a first year law student at 
Stanford and I told him he had to stay in California and go to 
class. And I hope I can get some Committee support on that 
decision, because he wasn't happy about that.
    My mother is here. She's been mentioned several times 
during the course of these proceedings. She arrived in 
Washington last night, promptly slipped at the Metro and 
dislocated her finger. But she's OK. I just hope that isn't an 
omen for the hearing. But I'm pleased that she could join us.
    I'd like to mention my father. We lost my father almost 20 
years ago. We think about him and we miss him every day and 
especially on this day.
    My brother, Jim, was here earlier. He was introduced. He 
had to ask to be excused. And I'd like to mention my brother, 
Tom, who lives in Tucson, Arizona, and my sister, Lu, who lives 
in Salt Lake City.
    Also joining us today are many friends, colleagues, former 
colleagues, students, former students, and, via online, many 
colleagues and friends out in the State of Utah, and I 
appreciate their interest and support.
    I'd also like to thank and acknowledge the introductions on 
my behalf by Senator Hatch. That's the kind of introduction 
that would make anybody's mother blush, and I think she did, 
and then Senator Feingold did the same thing.
    So I appreciate very much what both of them had to say, and 
especially the bipartisan support that those statements 
represent.
    With that, Mr. Chairman, I'll turn it back to you and I 
look forward to answering the Committee's questions.
    [The biographical information follows.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Cardin. Well, thank you. And we certainly do 
appreciate the introductions and support that has already been 
shown on this Committee.
    Let me start with a question I think is relevant, 
considering that the President recently nominated Elena Kagan 
to the Supreme Court and then she would be coming to the 
Supreme Court without judicial experience; that your nomination 
is to the court of appeals, the appellate court, and you have 
not served in a judicial capacity.
    One is very impressed with your background and your 
experience in the positions that you have held in the legal 
community.
    Do you think it is a concern that you have not served on 
the district court or in a circuit court going to the court of 
appeals?
    Mr. Matheson. Well, thank you, Mr. Chairman. I am pleased 
to be able to address that question.
    I would start out by saying that I feel that I have been 
extremely fortunate in my career to have some extraordinary 
opportunities, ranging from private practice at a leading law 
firm to prosecuting in our State courts in Utah, to serving as 
the U.S. attorney, serving as dean of a law school, and 
participating in a multitude of law reform efforts.
    I couldn't have asked for better opportunities than that. 
It's been a very satisfying career up to this point, and I 
think that that blend of experience and those opportunities to 
make judgments and to work hard on legal issues and to work 
with others on a variety of law-related projects will serve me 
well on the bench.
    And I think that those experiences will serve as a 
substitute, I suppose, for having served as a judge. I 
understand that that's very good and relevant experience 
leading into a position of this nature.
    Senator Cardin. As a judge, you have to decide cases based 
upon the law. But the oath that you take indicates that you 
will execute justice to the poor and to the wealthy, that there 
be no distinction.
    The fairness of our system sometimes is skewed when someone 
does not have the ability to pursue their case in court. How do 
you interpret your position as a judge carrying out the oath 
that you would take to dispense justice equally to the poor?
    Mr. Matheson. Well, I think, Senator, that the oath 
requires a critical quality, and that quality is impartiality. 
And it also means that a judge has to have a full commitment to 
the rule of law, to impartial application of law to the 
evidence that has been admitted in the particular case, a 
commitment to procedural due process, and to open mindedness.
    And I think it also requires deference to the other 
branches of government and, also, I think, constant vigilance 
to ensure that the law is applied and that the judge's personal 
and political views are not involved in the application of the 
law to a particular case.
    I think if the judge follows those principles, that equal 
justice and meeting a judge's responsibilities and, most 
importantly, as you started out, meeting the oath will be 
fulfilled.
    Senator Cardin. I am not familiar with Utah, I am with 
Maryland, as to the responsibilities of lawyers to participate 
in pro bono and to provide help to those who otherwise would be 
denied access to our courts.
    Do you see a role that the courts can play in promoting 
adequate representation for all people in our system?
    Mr. Matheson. I think there is, Mr. Chairman. First, let me 
say that the Utah Bar has a strong record in this area and the 
legal community in my State has stepped up and fulfilled the 
responsibility that you just described in many, many ways.
    I've had the privilege to participate in a number of those 
activities, such as the And Justice for All campaign in our 
community that supports our legal services agencies. As dean of 
the law school, I was involved in developing a pro bono 
initiative, which matches up students with practicing lawyers 
to meet under-served legal needs of our community. And our 
judges in the State have stepped forward and encouraged 
programs and lawyers to participate in these activities.
    And I feel that I've been part of that tradition and to the 
extent that it is consistent with the judicial role, would like 
to continue in that respect.
    Senator Cardin. Thank you.
    Senator Hatch.
    Senator Hatch. Let me just ask one question, and it is an 
important one, certainly, and we are welcoming you to the 
Judiciary Committee of the U.S. Senate. And I want to thank you 
and your family for your commitment to service to our State and 
to our country, as well.
    Let me just ask you a question concerning judicial 
philosophy, because I know that this has to be asked. I 
understand that to mean your understanding of the power and 
proper role of judges in our system of government involves 
judicial philosophy.
    Now, in 1991, for the 200th anniversary of the Bill or 
Rights, you wrote a piece for the Salt Lake Tribune arguing 
that, quote, ``There is an unmistakable link between our 
established constitutional values and basic human needs,'' 
unquote.
    Because you referred to, underlined, constitutional values, 
that naturally raises this question--whether judges, as opposed 
to legislators, may act to help meet those needs.
    For example, one scholar has argued that constitutional 
provisions, such as the guarantee of equal citizenship, make 
the Constitution literally a generative source of substantive 
rights. Now, that sounds as if judges can recognize new rights 
that they think will meet human needs.
    Would you care to comment on that?
    Mr. Matheson. Yes. Thank you, Senator Hatch, for that 
question, and I think it raises a very important issue.
    I would say, first of all, that I have never taken the 
position that you just described and that the provision of 
opportunity mentioned in the article that you just described is 
a responsibility for the legislature to address.
    I've always viewed the Constitution as providing for 
protection for individual rights against government 
interference as opposed to providing affirmative rights, and 
that has been my consistent position as a constitutional law 
teacher and scholar.
    I think you put it well last week in the speech that you 
gave to the Cato Institute, where you said that it's important 
to recognize the principle that it isn't judges who control the 
Constitution, it's the Constitution that controls the judges, 
and that resonated with me. I believe in that principle and 
it's one that I would take to the bench.
    Senator Hatch. Well, thank you. If we have any other 
questions, we will submit them in writing.
    Mr. Matheson. Thank you.
    Senator Cardin. Thank you.
    Senator Feingold.
    Senator Feingold. Nothing.
    Senator Cardin. Senator Kyl.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Let me first begin by asking you a question about your 
book, Presidential Constitutionalism in Perilous Times. You 
argued, and I am quoting here, ``The Presidency requires a 
constitutional conscientiousness that was lacking in the George 
W. Bush administration that must be inculcated in the future.''
    Could you give me some examples?
    Mr. Matheson. Well, my concern that was expressed in that 
statement, Senator, is a separation of powers concern and the 
relationship between separation of powers and individual 
rights.
    The book, by the way, is a book about several Presidents 
that faced security and liberty interests in times of war and 
national security threat.
    Senator Kyl. Let me just get to the point here. You are 
accusing them of not caring about the Constitution. 
Constitutional conscientious, a lack of consciousness about or 
thought about or concern about. That is kind of a tough charge 
against people who tried very hard to be good public servants.
    Can you give me an example?
    Mr. Matheson. Well, the examples talked about in the book 
occurred during the first--mostly during the first term of the 
Administration and had to do with the lack of collaborative 
policymaking effort in the areas of torture, national security 
surveillance, and detention.
    And the analysis speaks mostly to the question of why the 
Administration didn't work more closely with Congress in 
developing those policies.
    Senator Kyl. With all due respect, though, if the President 
has constitutional authority to execute a war, it may not be a 
good idea or good policy not to communicate more robustly with 
the Congress, but that doesn't mean that it lacks 
constitutional conscientiousness or, in other words, that it is 
overriding its powers.
    Let me just give you an example of what I thought you were 
getting at. You wrote that when President Bush issued his 
November 13, 2001 military commission order, he claimed 
lawmaking, adjudicating, and prosecuting authority, conflating 
separation of powers under the commander-in-chief mantel. 
Historically, this planting of executive, legislative, and 
judicial powers in one person or, even in one branch of 
government is ordinarily regarded as the very acme of 
absolutism.
    Now, are you contending or did you contend in that book 
that the President, in the exercise of his authority as 
commander-in-chief of our armed forces in the middle of a 
military conflict, must require Congress' approval when dealing 
with foreign enemy combatants on enemy soil?
    Mr. Matheson. Senator, let me try to clarify that point a 
little bit more. What I was trying to get at with respect to 
military commissions, which eventually was recognized by the 
Supreme Court in 2006 in the Hamdan case, is that the President 
ended up acting unilaterally in establishing the commissions 
and, as it turned out, under the Uniform Code of Military 
Justice, there was a Congressional limitation on how those 
commissions could or should be established.
    And that was challenged and then, of course, several years 
later, the Supreme Court struck down the commissions----
    Senator Kyl. But the Supreme Court did not strike down the 
President's authority to establish a military commission.
    Mr. Matheson. Well, they left that question open.
    Senator Kyl. Right. But that is what you were criticizing 
him of doing here, of setting it up. Now, there may have been 
some infirmities in it, and it may have been a better idea for 
him to--and, in fact, ultimately, Congress did work with him 
and modify it somewhat and this Administration currently 
believes that we can operate under that authority.
    So, part of what you wrote here suggests that he does not 
have the authority to do it. That is the thing that I am 
wondering about. It is not maybe that it was not a great idea, 
it is exactly how he did it or that he should have consulted 
with Congress.
    Mr. Matheson. Well, Senator, I think what I was trying to 
suggest is that, as the Court explained in Hamdan, we didn't 
have a situation where Congress had not spoken. Congress had 
spoken.
    And if we were in the hypothetical situation where Congress 
had said nothing on this issue, it's in that context that the 
Court left the question open whether the President could act.
    But even in that context, Justice Kennedy was very careful 
to point out that an executive establishment of a court and the 
rules of that court and the sanctions of that court should 
raise issues of constitutional concern concerning separation of 
powers. That's the point I was trying to make.
    Senator Kyl. You argued, from the same source, ``The 
executives claimed that it could arrest and lock up individuals 
suspected of terrorist ties without charge, without counsel, 
without due process, and without any prospect of release until 
the war on terror is over evaded the rule of law in a war that 
is supposed to preserve the rule of law.''
    Did it turn out that the Supreme Court agreed with you?
    Mr. Matheson. Well, they did, actually, up to a point in 
the Hamdee case.
    Senator Kyl. Did not the Hamdee court say that you could 
hold a prisoner until the end of the conflict?
    Mr. Matheson. They did, but not without the provision of a 
due process hearing to challenge the validity of the detention.
    Senator Kyl. So what you are saying is they are only 
without due process, as later the Hamdee court ruled--in other 
words, you do not deny that the President has the authority to 
hold and to arrest, to lock up, as you put it, terrorists 
without charge.
    Mr. Matheson. Well, I would include the issue of charge and 
the validity of detention as part of the due process 
consideration.
    Senator Kyl. So you think a person has to be charged, that 
a terrorist who is captured on a battlefield has to be charged 
with a crime?
    Mr. Matheson. No. What I was trying to explain is that a 
person in Hamdee's position--of course, he was a citizen, we 
know.
    Senator Kyl. Right.
    Mr. Matheson. Would have an opportunity to contest the 
detention and, as part of contesting the detention, the reason 
for the detention would, I think, be part of that discussion.
    Senator Kyl. Well, that is different from what you said. 
They do have the right to contest and there is a review even 
under the original authority that the President exercised with 
respect to terrorists held at Guantanamo on status.
    But what you are saying here is that the executive's claim 
that it could arrest and lock up individuals suspected of 
terrorist ties without charge and without counsel--now, you say 
without due process, that later got interpreted--and without 
any prospect of release until the war is over evaded the rule 
of law.
    But the Court says that all three of those things are 
appropriate.
    Mr. Matheson. Well, I suppose that, Senator, I'm trying to 
put those concepts together and I see a due process interest 
maybe a little more broadly that you're suggesting.
    But I would cite to the Hamdee case as validating that 
point.
    Senator Kyl. I would cite to the Hamdee case as contesting 
it. I am over my time. I just had one other series of 
questions, but I am happy to yield.
    Senator Cardin. Senator Whitehouse.
    Senator Whitehouse. First of all, welcome, Dean Matheson. 
It is good to have you with us. You served as United States 
attorney. We have, obviously, confirmed you before for 
positions of significant responsibility, and I welcome you 
back.
    Could you describe a little bit the nature and extent of 
your appellate court practice during the course of your career?
    Mr. Matheson. Well, I'd be happy to do that, Senator. And 
it's good to see you again. We overlapped as U.S. attorneys, 
and Senator Whitehouse was clearly one of the leaders of our 
U.S. attorney group. So it's good to be back with you this 
afternoon.
    Senator Whitehouse. He only says that now.
    Mr. Matheson. As to your question about appellate practice, 
as the U.S. attorney, I argued a number of cases before the 
Tenth Circuit. Senator Feingold described one of the more 
significant cases involving the preservation of a multitude of 
convictions against collateral attack that were being 
challenged as the result of a Supreme Court case. And we worked 
very closely with the Justice Department, because it was a 
challenging issue.
    I argued other cases before the Tenth Circuit, including an 
en banc case involving a Fourth Amendment issue, and I argued a 
case that I was also involved as the trial lawyer. It was a 
homicide case that we tried in Federal district court in Salt 
Lake City. And what made the case particularly interesting is 
it was the first case in the history of our state where we used 
two juries, because of an evidentiary issue.
    There was a problem under the Supreme Court decision of 
U.S. v. Boutin, and rather than severing the cases, we tried 
them together, and that was an interesting experience and we 
took that case up on appeal to the tenth circuit.
    I have to say that my practice experience before that court 
has been some of the most professionally satisfying of my 
career. I thoroughly enjoyed it. It's how I've gotten to know 
that court and come to respect it so much and why it's such an 
honor to be nominated to serve on that court.
    Senator Whitehouse. Well, you have magnificent 
accomplishments and I am delighted that you are here. I wish 
you well.
    My last question is how many of you there are who are sixth 
generation Utahans.
    Mr. Matheson. Well, you'd be surprised how many there are.
    [Laughter.]
    Senator Whitehouse. I will leave it at that.
    Senator Cardin. Senator Franken.
    Senator Franken. Thank you, Dean. I am very impressed that 
you have taken time from your work as a professor and a dean to 
serve both as a local prosecutor and a U.S. attorney, as 
Senator Whitehouse mentioned.
    What impact do those experiences have on your understanding 
of the criminal justice system and how will that impact or 
influence you, if you are confirmed, at the appellate court?
    Mr. Matheson. Well, I've learned a great deal from those 
experiences and I think I'll mention just a few of the lessons 
learned. But I think one of the most important is that I have 
great confidence in our system of criminal justice in this 
country at both the state and Federal levels.
    For one thing, we have such a strong bench in our state, as 
Senator Hatch knows, in the state courts and the Federal 
courts, just outstanding judges.
    But perhaps most important is a sense, a very deep sense of 
how conscientious and how committed all the participants in the 
process almost always are, very professional, take their roles 
very seriously, whether it's a prosecutor, a defense attorney, 
a clerk, jurors.
    I think that there's a seriousness that is needed in the 
criminal justice system and I've seen it in action, and I have 
a lot of respect for each and every person who is involved in 
that process, because they come to it each day and they come to 
it to do as good a job as possible, because they recognize that 
whatever their role is, if they do it well, that contributes to 
how effective the system is.
    So I came away from experience as a prosecutor and as a 
U.S. attorney with that lesson in mind.
    Senator Franken. As Senator Cardin referenced, you have 
written about the importance of responding to the legal needs 
of low income and middle class people in our society. How did 
you develop your commitment to access to justice? Is there any 
one series of events or is this something that you observed or 
a value that you got from your parents?
    Mr. Matheson. Well, thank you, Senator. I think I'd start 
out by saying all of the above. I think growing up in my 
family, we were always taught about commitment to service. That 
was inculcated early on, but that continued through law school 
and during the early years of practice and it's just always 
been a part of my commitment, my priority, and what I've wanted 
to do.
    And I've had some terrific opportunities to participate in 
that area, going back quite a few years, when I was actually 
quite a young lawyer. I was asked to serve on the Legal Aid 
Society of Salt Lake City and became the president of their 
aboard.
    And during the time I served with them, we developed a 
domestic violence program for our community that I think is a 
model to this day and I'm very proud of having been involved in 
programs like that.
    Senator Franken. Well, thank you. I have heard enough. No 
more questions. And you are very impressive, sir. Thank you.
    Mr. Matheson. Thank you, Senator.
    Senator Cardin. Just as a follow-up to Senator Kyl's point, 
the book that Senator Kyl was referring to, Presidential 
Constitutionalism in Perilous Times, you analyzed Presidents, 
if I understand it, Lincoln, Wilson, Franklin Roosevelt, 
Truman, and George W. Bush. That was all five, I guess, that 
you were comparing.
    And then you draw a conclusion, which is very similar to 
the 
9/11 Commission's report, that I just really want to put in the 
record, because I agree with it and there might be some 
interest in that, that Presidents generally have focused on 
national security in times of crisis and not on civil 
liberties, and they need to focus on both, which is exactly 
some of the findings of the 9/11 Commission.
    I would hope that I will find the time to be able to read 
that book. It sounds very interesting.
    Mr. Matheson. Thank you.
    Senator Cardin. Senator Kyl, did you want a second round?
    Senator Kyl. Yes, I do, Mr. Chairman. I have a set of 
questions. Just as a final point, and maybe since I asked you 
if you could give me some examples, that might have caught you 
just a little bit unawares, I will just ask a question for the 
record and you are free to take time and provide a written 
answer, if you would like to do that.
    But the final point on this question, the little debate you 
and I were having about Hamdee and so on. Assume that there is 
an initial determination of status and that there is an at 
least one time habeas review, which the Court said would exist.
    Do you believe that criminal charges, provision of counsel, 
and some other prospect of relief is required for due process 
or required by due process for foreign terrorists who are 
captured on the battlefield and detained in place like 
Guantanamo?
    Mr. Matheson. Well, Senator, as you'll recall, Justice 
O'Connor addressed, in part, what she thought due process might 
require, but didn't go into great detail on that issue and I 
think that issue may still be with us up to a point in terms of 
how detainees--and, again, the distinction in that case was 
drawn between a citizen detainee as opposed to a non-citizen 
detainee.
    So I think my answer, Senator, would, as so often happens 
in these matters, depend on a combination of facts and 
circumstances and if asked to confront it in a judicial 
capacity, would do so with an open mind.
    And these are difficult issues, as you know. They've been 
debated back and forth now for quite a number of years and it 
has continued into this administration.
    Senator Kyl. Did the habeas or the resulting requirement 
for habeas depend upon citizenship status?
    Mr. Matheson. Well, as you know, after Hamdee, there were 
other cases and there was the Rasoul case, which recognized a 
habeas opportunity for the Guantanamo detainees, but under the 
Federal habeas statute.
    Then we had legislation that stripped jurisdiction for 
habeas review, but the administration did institute the combat 
status review tribunals. But then we moved up to the Boumediene 
case, which has resolved some issues, but raised several 
others.
    So we're talking about a fluid situation in this area.
    Senator Kyl. But further established the habeas right.
    Mr. Matheson. In Boumediene.
    Senator Kyl. Right.
    Mr. Matheson. Yes.
    Senator Kyl. Let me just switch total subjects. This book 
Professor Carlin co-authored, I am just going to quote from it, 
argued that interpreting--I am quoting now--``Interpreting the 
Constitution requires adaptation of its broad principles to the 
conditions and challenges faced by successive generations. The 
question is not how the Constitution would have been applied at 
the founding, but rather how it should be applied today in 
light of changing needs, conditions, and understandings of our 
society.''
    Are you generally familiar with that?
    Mr. Matheson. Well, I haven't read that book, Senator, or 
what she wrote.
    Senator Kyl. Well, I would just ask you what you think 
about it, then, or do I need to repeat it?
    Mr. Matheson. No. I think I understand the question and I 
hope I can be helpful with a response.
    I view the Constitution as establishing, in its text, and 
everything, I think, starts with the text, but establishing a 
structure of government and a set of relationships within and 
between governments and between the government and individuals.
    I think those principles were established at the beginning 
and that the framers intended that document and those 
principles to endure and to serve us in addressing situations 
that would be new and unanticipated, and I think that that 
document has served us well in that respect.
    I don't see the structure or principles changing. I see 
circumstances that have to be confronted as changing. I 
recently was reading the Second Amendment case, the majority 
opinion in Heller, and Justice Scalia was responding to a claim 
that the Second Amendment should only apply to those arms that 
were in existence in the 18th century. And, of course, he 
rejected that claim and pointed out that the First Amendment 
has been applied to modern forms of communication and the 
Fourth Amendment has had to be applied to modern forms of 
search, and the Second Amendment, likewise, has to be 
interpreted in light of new forms of arms, and I think that 
that approach is a sensible approach.
    Senator Kyl. Creative lawyers, of course, will come up with 
an infinite number of new circumstances. I agree with you that 
circumstances change and, also, even if they do not, lawyers 
will think of new ways of presenting cases on behalf of their 
clients.
    But the word, also, ``needs'' was in here, in light of 
changing needs, and I was just thinking, for example, of the 
free exercise of religion clause and was wondering if you could 
maybe just give me an idea about how you think there might be a 
changing need that would require a different interpretation 
than how the Constitution would have been applied at the 
founding.
    And, again, that may be unfair just to put you on the spot.
    Mr. Matheson. Well, no, Senator. It's a great question. I 
suppose my initial reaction to it is that I understand what 
changed circumstances are, but I'm not sure I understand what a 
changed need is.
    Senator Kyl. I kind of was thinking the same thing. Maybe 
that is something you and I might agree on.
    Mr. Matheson. Well, I'll take it then.
    Senator Kyl. Thank you very much.
    Mr. Matheson. Thank you, Senator.
    Senator Cardin. Does any other member of the Committee wish 
to inquire?
    [No response.]
    Senator Cardin. If not, thank you very much and that will 
complete your testimony and questioning.
    Mr. Matheson. Thank you, Mr. Chairman. Thank you to the 
Committee. It's been an honor to be with you today. And thank 
you, again, Senator Hatch, for your kind words.
    Senator Cardin. We also, again, express our appreciation to 
you and your entire family.
    We will now move to our second panel, which will consist of 
John McConnell for U.S. District Judge for the District of 
Rhode Island; Susan Nelson to be U.S. District Judge for the 
District of Minnesota; Ellen Hollander to be U.S. District 
Judge for the District of Maryland; James Bredar to be U.S. 
District Judge for the District of Maryland.
    If you all would, remain standing to be sworn.
    [Witnesses sworn.]
    Senator Cardin. Thank you. Please have a seat.
    As I pointed out with the previous panel, that the 
tradition of our Committee, if you would take the time to 
introduce your family members or other guests that are here, we 
would certainly appreciate that. And I will start off with John 
McConnell.

   STATEMENT OF JOHN J. MCCONNELL, JR., NOMINATED TO BE U.S. 
        DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND

    Mr. McDonnell. Thank you, Mr. Chairman. I am truly blessed 
with a large family and friends and supporters, many of whom 
are actually here today. My wife, Sara; my daughter, Catherine, 
who next weekend graduates from Brandeis University and was 
just accepted to teach in the D.C. Public Schools with Teach 
for America, and she'll start there this fall; my daughter, 
Margaret, ``Maggie,'' who is a sophomore at George Washington 
University here in the District; and, my son, John, who is a 
seventh grader at the Gordon School in East Providence.
    My mom, Jane McConnell, is here with me. My in-laws, 
retired Rhode Island Supreme Court Justice Donald Shea and my 
mother-in-law, Ursula Shea, are here with me. And I have the 
privilege of having grown up with five brothers, four of whom 
are here with me. My brother, Tom, and his wife, Amy Matthews; 
my brother, Bob; my brother, Paul; and, my brother, Joe. My 
brother, Pete, I think is watching at home, unable to make it 
down here today.
    A few of my nieces and nephews are here, Will and Robbie 
and Brendon McConnell, and my niece, Jessica Reinhardt. A 
couple of my law partners are here, Aileen Sprague, Don 
Migliori, Vin Greene, Fidelma Fitzpatrick, and some very 
excellent friends who always are there to support me, Donna 
D'Aloia, Rita Pratt, who is actually celebrating her birthday 
with us here today, Jacky Beshar, and Dan Roacha.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you.
    Judge Bredar.
    [The biographical information follows.]

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  STATEMENT OF JAMES K. BREDAR, NOMINATED TO BE U.S. DISTRICT 
               JUDGE FOR THE DISTRICT OF MARYLAND

    Judge Bredar. Thank you, Mr. Chairman. And if the Committee 
will permit, I'm going to ask my family members to stand, since 
they're in the back of the room and I think they should be 
recognized, given the labor that they have committed to this 
endeavor.
    First, I'd like to introduce my wife, Stacey Sewell Bredar, 
who teaches fifth grade in the Baltimore County Public Schools; 
my son, Thomas, who is a sophomore at Northwestern University 
in Evanston, Illinois. Next, my son, Daniel, who in 2 weeks 
will graduate from McDonough School and is headed to Harvard in 
the fall; and, then, my daughter, Sophie, who is five and is 
headed to kindergarten in the fall.
    We are also joined today by my brother, John, who lives 
here in the District, and my nephew, Henry, who is 13 and in 
the seventh grade at St. Alban's School. My mother-in-law, Ann 
R. Sewell, is here, as is my career law clerk, Beverly Peyton 
Griffith.
    My parents are not able to be with us. I'm sure they're 
watching with great interest from Denver, where they still 
live.
    Thank you, Mr. Chairman.
    Senator Cardin. Judge Hollander.
    [The biographical information follows.]

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   STATEMENT OF ELLEN LIPTON HOLLANDER, NOMINATED TO BE U.S. 
          DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND

    Judge Hollander. Thank you, Senator. First, if I may, I'd 
like to thank the Committee for the opportunity to appear 
today. I would also like to express my gratitude to you and to 
Senator Mikulski for the confidence you've expressed in me in 
recommending me to the President.
    I'm also grateful to Senator Mikulski and to you for your 
kind introduction.
    I particularly want to express my profound appreciation to 
President Obama for the enormous honor that he has bestowed 
upon me.
    I'm especially grateful that my family and so many friends 
and colleagues are able to share this milestone in my 
professional life. I do, too, have quite a crew here. They got 
here early, so they have good seats.
    [Laughter.]
    Judge Hollander. But nonetheless, I would like to ask them 
to stand as I introduce them.
    I am joined by my husband of almost 38 years--I know I look 
very young, but I was very----
    [Laughter.]
    Judge Hollander. Rich Hollander. And those who know Rich 
will readily agree that in choosing him as my life partner, I 
have demonstrated my ability for very sound decisionmaking.
    We are especially proud of our children. They are surely 
our greatest accomplishment. Our daughter, Hillary, is a 
clinical social worker in New York. Our son-in-law, Zachary 
Shankman, might be the most excited member of our family to be 
here, as he clerked for a Federal judge in New York City, where 
he now practices law.
    Our son, Craig, is a Ph.D. student at Johns Hopkins, and I 
think today it might be worth noting that he is the recipient 
of a Congressional research award from the Dirksen Center. His 
fiance, Jenifer Steinhardt, is here, as well. She works in 
finance in New York.
    Our youngest, Brett, is a sports broadcaster in Baltimore, 
and I'm proud to admit that in several news reports announcing 
my nomination, I was identified as the mother of Brett 
Hollander.
    [Laughter.]
    Judge Hollander. I'm also thrilled to be joined by my 
brother, Dr. Andrew Lipton, and my sister-in-law, Dr. Helene 
Lipton, who traveled from San Francisco to attend these 
proceedings.
    I'm also delighted by the presence of Shondell Spiegel, a 
lifelong family friend, who flew in from Los Angeles to be 
here, as well.
    I'm very sorry my sister, Rhoda Lipton, could not be here. 
She is watching the Webcast, but she was unable to attend, as 
it's the last day of classes for the students she teaches at 
Columbia University.
    I also wish to acknowledge Karen Warren, my invaluable 
administrative assistant of 25 years. And I'm deeply honored by 
the presence of so many wonderful friends, colleagues, and 
current and former law clerks, and I have several judicial 
colleagues, as well. I hope they are standing. I think they 
didn't follow the instructions very well.
    [Laughter.]
    Judge Hollander. So I would ask them to stand. They deserve 
to know that I so very much appreciate how much they have 
supported me through this very long endeavor.
    And, finally, if you'll permit me, Senator Cardin, I do 
want to mention those whose presence I sorely miss, especially 
on a day like today. My devoted in-laws, Joseph and Vita 
Hollander, and my beloved parents, Harold and Hilda Lipton.
    And I hope you'll permit a special note about my father. 
The son of emigrants, he graduated from Harvard Law School and 
was regarded as a lawyer's lawyer. I was just 17 when he died, 
but in the brief time that I enjoyed with him, he instilled in 
me the importance of hard work, integrity, and, most important, 
I believe, for today, the value of public service.
    He also encouraged me to believe that I, too, could be a 
lawyer, despite the fact that there were not many women 
attorneys during my youth. The enormous pride he felt for the 
legal profession has remained with me and has brought me to 
this day.
    Thank you.
    Senator Cardin. Thank you, Judge Hollander.
    Judge Nelson.
    [The biographical information follows.]

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    STATEMENT OF SUSAN RICHARD NELSON, NOMINATED TO BE U.S. 
          DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA

    Judge Nelson. Thank you, Mr. Chairman, Ranking Member 
Sessions, Senators Franken and Klobuchar, and members of the 
Committee. I want to start by saying it is a profound honor and 
privilege to be here today. I am deeply humbled by this 
process.
    I want to thank this Committee for convening this meeting 
so quickly after my nomination. I appreciate the hard work that 
went into doing so.
    I also want to thank Senator Klobuchar, although she's not 
here for a moment, for her warm and generous remarks in 
introducing me today. I want to thank Senator Franken for his 
unwavering support of my nomination. And perhaps most 
importantly, I'd like to thank President Obama for his trust 
and confidence in me. I take that very seriously and hope to 
make him proud.
    I, too, am very proud to introduce some members of my 
family and friends who have been so kind to come here to 
support me today. I'd like to start with my husband of nearly 
27 years, my dearest friend, and I'd ask him to stand, Tom 
Nelson.
    And our pride and joy, our two boys are here today, our 
oldest, Rob Nelson, lives and works here in the District for 
the Council on Foreign Relations, and our youngest son, Michael 
Nelson, who is a junior at St. Olaf College. And unlike Scott 
Matheson, I allowed him to miss finals and come here today.
    [Laughter.]
    Judge Nelson. We'll see whose judgment was--also, on behalf 
of the Richard family, my family, my sister, Barbara Richard, 
is here with her youngest child, Jake. The Richards live far 
and wide across the globe and I know they're all here in 
spirit.
    I'd also like to thank my dearest friend, Annamarie Daley, 
my best friend in Minneapolis for many decades. She flew here 
to be here today. And my dearest friend from college, Jan 
Heininger, who is here.
    Also, for those of you watching on the Webcast, I am truly 
thankful for your support.
    And finally, I'd like to acknowledge my in-laws, Tom's 
parents, Ed and Fern Nelson, who are 89 and 88 years young. And 
they couldn't be here today, but they have truly provided me 
for love and support for the years and deserve the greatest 
recognition for that.
    Thank you, Mr. Chairman.
    [The biographical information follows.]

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    Senator Cardin. Well, let me thank all four of you for 
being willing to continue service in the public, and I 
particularly want to thank your families, because as I said 
earlier, this is a family effort. I know it is not easy on your 
families the amount of time and commitment it takes to serve on 
the Federal bench, and we very much appreciate their 
willingness to join in this effort.
    Before starting the questioning, I want to acknowledge that 
the reason we were able to get this hearing scheduled so 
promptly was the help we received from Senator Sessions in 
scheduling this, and I would yield to Senator Sessions if he 
wanted to make any opening comments.

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

    Senator Sessions. Well, thank you, Mr. Chairman. These are 
important positions and teams of staffers and lawyers have 
checked into the backgrounds of the nominees and have looked at 
that. FBI have done background checks and ABA and others. And 
so I look forward to participating in the discussion this 
morning.
    Thank you.
    Senator Cardin. I want to start off with the question that 
I asked Mr. Matheson dealing with the oath of office that you 
would take on becoming a judge, and, that is, to--so we get the 
exact language, it's to--equal justice to the poor and to the 
rich.
    I say that because at the trial court level, it becomes 
more pronounced if someone does not have adequate legal 
representation and in civil proceedings, the ability to get 
adequate legal representation many times depends upon having 
adequate resources in order to be able to pursue a case.
    And I understand the role of a judge, but I also understand 
that as a judge, you are in the upper pinnacle of our judicial 
system in trying to make sure that equal justice is dispensed 
and your oath requires you to do that without regards to 
wealth.
    So I guess my question to you is how do you see your role 
as a district court judge in carrying out the oath of office to 
make sure that justice is dispensed equally to the poor and to 
the rich.
    We will start with Mr. McConnell and then we will reverse 
it next.
    Mr. McConnell. Thank you, Senator Cardin. It would be my 
commitment, if I were fortunate enough to be confirmed by the 
U.S. Senate to serve in the district court of Rhode Island, it 
would be my commitment to ensure total and complete 
impartiality and to ensure that whether the poor or the rich 
came before me, that they would be treated fairly, that they 
would be treated with respect, and that they would be treated 
impartially, and that would be my commitment in my courtroom.
    My background has included a long history of pro bono 
service in many areas, from time sitting at a homeless legal 
clinic, dealing with very practical problems of people perhaps 
who have lost their license, all the way to litigation on 
behalf of folks in Rhode Island that were develop mentally 
disabled and lost their home.
    So I would bring that desire for fairness and impartiality 
to the bench with me.
    Senator Cardin. Judge Bredar.
    Judge Bredar. Thank you, Senator. Thanks for the 
opportunity to discuss this very important issue. And if I were 
confirmed, I would, I hope, uphold the commitment that I made 
early in my career to make sure that the poor and those who 
live in the shadows of our society do truly have equal access 
to our courtrooms.
    My work as a public defender, I think, was completely 
involved with that. You're right that it becomes a more tricky 
proposition when one is a judge, because you're not there, of 
course, to advocate on behalf of anyone, whether they are rich, 
poor or otherwise.
    But I do think it's appropriate for judges to do what they 
can to ensure that all parties, including those who are 
impoverished, have access to the courts. I think in the Federal 
court system, we do quite well with respect to the criminal 
side; and, due to the Congress' wisdom in passing the Criminal 
Justice Act in 1974, we make available public defenders and 
panel lawyers to perform that service.
    On the civil side, it's more problematic. I think that 
judges have a responsibility to encourage the bar generally to 
undertake their responsibility, when able to represent the 
indigent on a pro bono basis, to ensure that they have an equal 
opportunity to be heard in court.
    Senator Cardin. Judge Hollander.
    Judge Hollander. Thank you, Senator Cardin, for that 
question. I have, as my record reflects, 21 years of judicial 
service. Part of that time, I was a trial judge, more recently, 
of course, on the Court of Special Appeals of Maryland.
    In that time, I have had numerous occasions to work with 
pro se litigants and I think my record would reflect that 
regardless of whether they were represented or not, everyone 
has an opportunity to be heard fairly and impartially without 
bias or prejudice.
    And I think my colleagues will attest, who are present 
today, that there are many times when we do have pro se 
litigants in the appellate court. The court is not able to 
appoint counsel at our level. But those pro se litigants, their 
submissions, which are often very difficult to decipher, 
receive extremely careful consideration and attention; and, in 
fact, maybe it takes an extra effort, which I've always 
expended, to try to figure out exactly what the argument is 
that is being presented.
    And so I feel very proud of the fact that I have worked 
very hard to make sure that whether someone has counsel or 
doesn't, they, too, have their day in court.
    Senator Cardin. Thank you.
    Judge Nelson.
    Judge Nelson. Yes. Chairman Cardin, if you could indulge me 
just one moment, I forgot one of my dear friends.
    Senator Cardin. You better get that in the record.
    Judge Nelson. I will worry about it the rest of the 
hearing. Our dear friend, Anna Fogel, is here and I want to 
recognize her for being here.
    Senator Cardin. Absolutely.
    Judge Nelson. You know, in the district of Minnesota, we 
have spent a lot of time as a bar and a bench focused on the 
issue of equal access to justice. And as a magistrate judge for 
the past 10 years, on a daily basis, I see people come into my 
courtroom who are probably experiencing the worst day of their 
lives, whether they've been charged with a crime, whether 
they've suffered a terrible physical injury, and many of them 
have had very difficult lives.
    Many of them are pro se. And both on the civil side and the 
criminal side, we have attempted in Minnesota to address this 
and we've recently implemented a wonderful pro se program, 
which includes access to our clerk's office. We give them 
samples of complaints and other pleadings so they understand 
how to access the court. We have a very sophisticated system of 
assigning counsel to represent them.
    But I think in the end, what's critically important for a 
district court judge and the best way to deliver equal access 
to justice is through impartiality, through fair and just 
administration of the law to all.
    Thank you.
    Senator Cardin. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. Let me ask each 
one of you--let me get exactly where we are here. Each one of 
you will be required to impose sentences.
    And having been a prosecutor for some time, I might be 
accused of having a bias, but I have had the personal 
experience to see the damage that criminals can do to human 
beings and to society. We have sentencing guidelines that, 
until recently, were mandatory, with a few exceptions.
    Sometimes judges think they know better than the sentencing 
guidelines, but in my view, they are pretty good. They were 
consistent with the view of most judges about how sentences 
should be imposed.
    So I guess I'll just run down a list. Briefly, if you 
would, share with me to what extent you feel committed to the 
sentencing guidelines and to what extent do you have any 
hesitation to provide significant severe sentences, if that's 
called for under the guidelines.
    Do you have any personal feelings that would make it 
difficult for you to impose a harsh sentence where appropriate?
    Mr. McConnell.
    Mr. McConnell. Thank you, Senator Sessions. I think the 
sentencing guidelines are--one of the best aspects and the 
greatest aspects of the sentencing guidelines is that they 
offer consistency and I think consistency in criminal 
sentencing is key.
    I think people charged with crimes and victims deserve to 
know that there will be consistent punishment meted out. I 
think the guidelines should be given great deference. I think 
the guidelines, as a product of bipartisan work, deserve that 
deference by people in the know, and I think that I would 
follow the Supreme Court precedent on how to use them.
    But in my own personal circumstance, they would 
particularly be given great deference in sentencing, Senator.
    Senator Sessions. Thank you. I think that's the view of 
most judges.
    Magistrate Bredar, you have criticized the guidelines 
partially, saying that ``offenders and their criminal acts are 
inherently unique and, if justice is to be served, sentences 
must be imposed on a case-by-case basis'' and that the 
``interests of justice are best served when discretion is left 
with the judge.''
    And you said in response to the Court's ruling in the 
Booker case, ``I hope Congress will not act precipitously to 
curtail judicial discretion.''
    I would note to you that the Nation went through a national 
discussion on that issue of case-by-case basis and judge-by-
judge basis, which is what that really means. And Senator 
Kennedy and Senator Hatch and Senator Biden and Senator Thurman 
all came forward with the sentencing guidelines that I utilized 
as a prosecutor.
    So I am concerned about that. Do you see any problem with 
the fact that two judges on the same hall, one gets--they get 
exactly the same cases and one sentence gets probation and one 
gets 15 years in jail, as used to happen quite often?
    Judge Bredar. Senator, I hope I look like a young man, but 
the fact is that I was actually working as a Federal prosecutor 
when the guidelines came into place back when they were held 
constitutional in United States v. Mastretta in 1987.
    And I will agree with you wholeheartedly that there were 
problems in the country and in the Federal courts with respect 
to disparity in sentencing and that the guidelines, the genesis 
of the guidelines was that disparity, and it was a very 
important step forward in terms of advancing justice in this 
country.
    I not just know of stories, I lived the experience you've 
described of getting one sentence in one courtroom and a quite 
different one down the hallway for virtually identical 
offenses.
    So there clearly was a problem. The guidelines were put in 
place to address that. I think like many prosecutors and 
defense attorneys during the time when the guidelines were 
first in place, there was a feeling in myself that they were, 
at times, a bit confining; that in a just system of sentencing, 
there needed to be some room for greater flexibility.
    Certainly, not a return to the bad old days where there was 
really no guidance.
    Senator Sessions. Well, your advocacy here is that 
sentences must be imposed on a case-by-case basis. That's 
exactly what we had previously, and, basically, that says each 
judge decides, does it not, if you do not give deference to the 
guidelines?
    Judge Bredar. I think the first principle I want to 
enunciate is that as a magistrate judge, I have been sentencing 
under the guidelines for the last 12 years and I think the 
record shows that my sentencing practice has been right down 
the middle of the road and that I have faithfully applied the 
guidelines, first and foremost, because they're the law of the 
land and that's the judge's responsibility, regardless of what 
views he may or may not have advocated before he became a 
judicial officer.
    I want to be crystal clear that, if confirmed as a district 
judge, that would remain my policy. I follow the law and if the 
sentencing guidelines are on the books, as they still are, very 
much, they are the first reference point in any sentence that 
is imposed.
    Senator Sessions. Well, that is what I guess I would like 
to hear.
    [Laughter.]
    Senator Sessions. The guidelines are a first reference 
point. They are not binding, however, and I guess my question 
is if you truly believe what you said in that statement and you 
are no longer bound, as you previously were, before Booker and 
those cases, to what degree do you give deference today to 
sentencing guidelines?
    Judge Bredar. Well, I give the deference that the 
guidelines themselves command and that the law of the United 
States Court of Appeals for the Fourth Circuit requires that I 
give, which is that they are the first place that a judge looks 
when a judge is crafting a sentence.
    And frankly, while the legal language is a bit more 
technical than this, the bottom line is you need to have a darn 
good reason why you are stepping away from the guidance of the 
Sentencing Commission and the experience of so many others with 
this category and class of offense, and I give great deference 
to that.
    Senator Sessions. Mr. Chairman, I have already run well 
past my time and I do not want to ignore our other two people. 
But I suppose I would be willing to give back my time. I doubt 
they would be offended.
    [Laughter.]
    Senator Cardin. Thank you, Senator Sessions. I have got a 
feeling that others will pick up on some of these points.
    Senator Klobuchar.
    Senator Klobuchar. He can go ahead. He was before me.
    Senator Cardin. Senator Whitehouse.
    Senator Whitehouse. Thank you. I had the chance earlier to 
welcome Jack McConnell here. So I think my questions, if the 
other nominees will forgive me, will focus on the Rhode Island 
nominee.
    You have had, clearly, a very strong political background. 
You and I--you have been for me and you have been against me. I 
would say, on balance, maybe a little bit more against than for 
over the years.
    But one of the interesting things about Rhode Island is 
that people can have friendships and respect for one another 
that transcends where you stand politically.
    Senator Reed has great personal confidence that you will be 
able to transcend your political experiences and background and 
opinions of the past if you become a judge. I want to say I 
very strongly share that point of view and that is why I so 
strongly supported your nomination.
    But not everyone here has had the chance to get to know you 
in that way and to see that element of your character. Not 
everyone here is familiar with the extent to which, in Rhode 
Island, it is not uncommon for people of intensely political 
backgrounds to become judges and how over and over and over 
again our experience has been very successful with them able to 
set aside that history and treat every person who comes before 
them equally and fairly once they have done that.
    Your father-in-law, Justice Shea, was one. On the 
Republican side, Justice Weisberger was another. One of the 
people who has indicated his personal belief in your capability 
to make that transformation is Judge Selya of the First 
Circuit, a Rhode Islander on the First Circuit, who has served 
with great distinction for many years.
    I have practiced before him. I have never had a moment's 
hesitation about his fairness or concern about partiality, and 
yet he came to that job intensely political, working for a 
Republican Governor, working in politics, active in campaigns.
    And as I said, a lot of people here aren't familiar with 
that tradition in Rhode Island or with how successfully judges 
are expected to and do make that leap. In Corinthians, it says, 
``When I was a child, I spoke as a child, I understood as a 
child, I thought as a child. But when I became a man, I put 
away childish things.''
    I do not want to make a firm equation of political things 
with childish things. There are occasions when politics is not 
childish.
    [Laughter.]
    Senator Whitehouse. There are occasions when it is. But I 
do think that the Bible's presumption that there are turning 
points in a person's life when they put away things of the past 
and move into new responsibilities is something that is very 
much a part of the human condition and very appropriate.
    And I would ask you to make some remarks at this point to 
assure us that every litigant who comes before you, no matter 
their background, whether they be poor or rich, Democrat or 
Republican, if they are individuals, to know that they will get 
a fair shake against big corporations, that whoever they are, 
when you are a judge, it no longer matters. You have taken a 
solemn oath and obligation to do impartial justice and you will 
honor that.
    Mr. McConnell. Thank you, Senator Whitehouse, and thank you 
for that kind introduction. If I could just say that I must 
have been a child when I opposed you politically.
    [Laughter.]
    Mr. McConnell. I now am a man----
    Senator Whitehouse. But a very effective one, a very 
effective one.
    Mr. McConnell. Sadly for you, yes.
    [Laughter.]
    Mr. McConnell. I do regret it, if I can say so. I am under 
oath.
    I appreciate that question, Senator. Politics has been an 
avocation for me. It has been, ever since--I told you earlier I 
have five brothers and I had a dad who politics was an 
avocation for him. He was a local ward Committee person.
    And we would oftentimes struggle to get dad's attention 
individually, when you have such a large family as I do. And so 
I picked up, when I was about 10, walking the ward with him and 
distributing the leaflets and whatnot and as we say in Rhode 
Island, I sort of caught the bug.
    But that was my avocation. That was what I said, because I 
believed in a cause or I believed in a particular candidate, 
which we have been very fortunate in Rhode Island over time to 
have.
    My professional life has been as a litigator. For 25 years, 
I've tried cases, and the politics has never gotten in the way.
    I was telling someone the other day, while I have 
contributed and supported and helped in campaigns, I don't 
believe I've ever asked for anything. I don't ask for White 
House tours. I don't ask for Senate gallery seats. I just don't 
ask for anything. It is an avocation, because I truly believe 
in the public service it's done.
    And my dad taught me very early on that if you believe in 
something, then you need to support it, and I've tried to do 
that.
    If I am fortunate enough to become--to be confirmed by the 
Senate and become a judge, I commit to you and to the people of 
the state and the country that I'd leave that behind.
    I have been involved in politics and I have been a trial 
lawyer. That was my job. I did it professionally, I did it 
fairly, I did it ethically for many, many years.
    Again, if I'm privileged enough to be confirmed, I make 
that same commitment to impartiality, to fairness, and to the 
rule of law, because that is what my job would be. And I make 
that commitment to you and to the entire Committee and the 
Senate.
    Senator Whitehouse. Thank you. I have gone a moment over my 
time, so I am not going to ask any further questions. But I do 
want to make sure, Mr. Chairman, that the letter from Mayor 
Scott Avedisian, who is the second senior ranking Republican 
official in Rhode Island, the letter from Justice Weisberger, 
who is a very distinguished Republican member of the Rhode 
Island Supreme Court, now serving on senior status, that the 
letter from my predecessor as attorney general and our last 
Republican attorney general, Jeffrey Pine, are also in the 
record; that my successor as the state director of business 
regulation, Republican Barry Hittner, is in the record; that 
the letter from John Harpootian, who is an extremely active 
Republican political figure in Rhode Island, on the current 
Republican Governor's sort of inner circle of advisers and very 
important part of his political campaign, again, supporting 
Jack McConnell is in the record; and, the statement from Judge 
Selya in the Providence Journal, with his assurance that Jack 
McConnell can make this transition; and, finally, a letter from 
the former Republican attorney general and now member of the 
United States Court of Appeals for the Third Circuit, Michael 
Fisher.
    I believe that they are all in the record, they are in my 
package, but if not, I would ask unanimous consent that they be 
put into the record.
    Senator Cardin. Without objection, they will be included in 
the record.
    [The letters appear as a submission for the record.]
    Senator Cardin. Do you have any Democrats that are 
supporting him?
    [Laughter.]
    Senator Whitehouse. There may be one or two.
    Senator Cardin. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. Let me welcome all of 
the panelists and all of the family members who are here.
    I hope that, since I am going to concentrate, Mr. 
McConnell, on questions to you, that the others will not feel 
slighted or that the members of your family will feel slighted. 
Believe me, the panelists are not--do not feel that way.
    Let me ask you questions that will both follow-up on what 
Senator Whitehouse was just talking about and then one other 
line of inquiry.
    Do you believe that health care is a right of citizenship?
    Mr. McConnell. I have never studied the issue legally, 
Senator Kyl, so I don't have an opinion on that.
    Senator Kyl. Well, the reason I ask is that you were quoted 
in 2003 in the Providence Journal Bulletin as saying, and I 
quote, that ``affordable, accessible and quality health care 
should be a right of citizenship.''
    And that caught my attention, because I think it is hard to 
find a place in the Constitution, a particular provision, which 
would support that view. And so I was curious why you said it, 
if you remember saying it.
    Mr. McConnell. I do. I believe it was in an op-ed in 2002 
concerning democratic principles and values in the state, if I 
recall.
    Senator Kyl. Correct. I have 2003, but----
    Mr. McConnell. 2003, it was, after the 2002 election. I 
think what I said in there, that were certain values that I 
believed that the state Democratic Party should unite around, 
education, work in the inner city, health care at the time, 
perhaps inappropriately, perhaps I meant universal health care, 
meaning that everyone should have health care for the system to 
work, and certainly was not speaking in any legal fashion.
    Senator Kyl. Well, when you say it should be a right of 
citizenship, what else could you mean other than that the law 
would require it?
    Mr. McConnell. Well, what I think I meant, Senator Kyl, was 
that as a party, that one of the values that we should profess 
as a state party was that health care for all people was so 
fundamental; that perhaps I took a little bit of liberty by 
saying it rises to the level of citizenship.
    Senator Kyl. All right. This then will be the lead-in to 
the final question that Senator Whitehouse was about to ask 
you, I am sure, which was, in effect, tell us how we can be 
assured by you that views like the one I just expressed, a 
strong political view that something should be the case, will 
not creep into your decision-making.
    I mean, I can interpret that as you saying this is the law 
or the Constitution, it should be a right of citizenship. And 
because you believe that, presumably, still as a political 
matter, a case may come to you where the question is, well, is 
that, in fact, the law and the tendency to wish that something 
could be true could well color your view when you read the law.
    What can you say to assure us that this will not be the 
case?
    Mr. McConnell. Senator Kyl, it would be inappropriate for 
it to color my view, if I'm fortunate enough to be confirmed by 
the Senate. I deeply understand that the role that I've played 
as an advocate in the courtroom or as an advocate in the 
political system for political beliefs are left behind.
    Those, in fact, to follow on Senator Whitehouse's analogy, 
those were the thoughts and actions at the time of an older 
child. But the reality is that the duties--I have followed my 
ethical and professional duties as an advocate in the courtroom 
unblemished and I would bring that same commitment to follow 
the law, a judge's responsibility of applying law to facts.
    Senator Kyl. I appreciate your commitment to doing that and 
you understand why it important to do it.
    And another, you gave an interview in which you said, and I 
quote, ``There are wrongs that need to be righted and that's 
how I see the law.'' Well, most of us believe some version of 
that.
    But the question is when you are in a position to right 
those wrongs, as a judge, would you tend to do so, even though 
the law may be contrary to that particular result? And what I 
am asking for, and I thought Senator Whitehouse kind of invited 
the same thing, is what is it that would lead us to believe 
that you can actually do that.
    I am sure you want to assure us you can. I practiced law 
for 20 years. I left politics out of the practice of law. It is 
kind of hard to involve it. I mean, you have got a client and a 
bunch of facts and politics does not have much to do with it.
    But judging, you could actually right the wrong, you have 
got the power to do it. The legislature just did not get the 
job done, you might conclude. And by your ruling, you could 
make it happen and you would like to see it happen, but the law 
just does not seem to be that way.
    So how can we be assured that you would not read the law to 
right that wrong?
    Mr. McConnell. Because I would have a different role, 
Senator. My role as an advocate was to do that and a look at my 
record will show an unblemished record of 25 years of 
professional, ethical, fair conduct, never called into 
question.
    I would bring those same values with me to the bench. I 
understand that the role of a judge is not to make law. There 
are other branches of government or the legislature that does 
that. The role is to apply the facts to the law and follow 
precedent.
    I'm a firm believer in following precedent. I believe, as I 
said earlier to Senator Sessions, consistency in the law is 
important, and that would be my goal as a judge, to be a fair 
and impartial arbiter of the law by applying them to the facts 
in the case before me.
    Senator Kyl. Thank you. My time is up. I will have one 
other round of questions, if I may.
    Mr. McConnell. Thank you, Senator.
    Senator Cardin. Senator Klobuchar.
    Senator Klobuchar. Well, thank you very much, Mr. Chairman. 
Thank you. I am sorry I was not here when you all sat down and 
introduced your families. I was meeting with a nominee for 
another court, one in Washington, DC., but I quickly ran over 
here, ended the meeting actually to say that I had to be here 
for our nominee.
    But I wanted to just, first of all, Mr. McConnell, before I 
address some questions to our two nominees at the end of the 
table here--that quote that I was listening that Senator Kyl 
read about the health care.
    So even back then in your advocacy role, you were not 
talking about a constitutional right. You were talking about 
that something had to be done, like a law change. Is that what 
you meant by that?
    Mr. McConnell. I meant that the political system should 
take up the issue to assure that people have health care, yes, 
Senator, not in a legal or a rights sense at all.
    Senator Klobuchar. All right. Thank you. Anyway, back over 
here to the other end of the table. You both have served as 
judges and I know you, Magistrate Nelson, as a magistrate. And 
I wondered how that experience has changed your view about the 
job that you seek now; how that experience being a judge, how 
it has been different than you thought and how you think it 
will make you a better judge.
    I guess I will start with you, Magistrate Nelson.
    Judge Nelson. Thank you, Senator Klobuchar, for the 
opportunity to respond to that question. Over the past 10 years 
as a magistrate judge, day in and day out, as I mentioned 
before, I see folks come to court who are in desperate straits 
and it has become clear to me that we need to provide good and 
full access to everyone to our system of justice and that our 
system of justice must be totally fair and impartial.
    And we all, when we look at what happens around the world, 
develop a deeper appreciation for the importance of the rule of 
law. And as a judge for many years now, I revere the rule of 
law, because it is so critical to the functioning of a good 
society.
    Senator Klobuchar. Judge Hollander.
    Judge Hollander. Thank you, Senator, for the question. As I 
know my record reflects, I have 21 years of judicial service, a 
portion on the trial court and, more recently, a portion on the 
appellate court.
    And in the capacity of both trial court and appellate court 
situations, I've had the opportunity to consider a wide array 
of issues and multiple questions. I'm always amazed at how many 
things seem to be new.
    I suppose judges are the last remaining generalists. But 
this has given me the confidence to believe that whatever the 
issues might present in terms of Federal court, that I would be 
well equipped to resolve them, because I have the basic tools 
to use these skills to answer the questions.
    And I also believe that my service as an assistant U.S. 
attorney and a Federal law clerk will come in very handy as I 
return, I hope, with any good fortunate and, hopefully, 
confirmation to the Federal system.
    Senator Klobuchar. Thank you. Magistrate Nelson, I want to 
touch specifically on the role of a magistrate here and I know 
that you--we focus a lot on criminal cases and sentencing 
guidelines in a lot of our questions, and, certainly, I think 
like that as a prosecutor, former prosecutor.
    But civil cases are such an important part of the Federal 
workload and some of them are very complex. And I know that you 
have a record of being able to bring parties together in 
consensus and settle cases that are very complicated and you 
have a reputation of bringing the most cases to settlement of 
just about any magistrate judge.
    Could you talk about how you do that and why you think that 
can be a good way to resolve disputes?
    Judge Nelson. Thank you, Senator, for that question. I 
think in your opening remarks, you commented on the fact that 
we have about 5,000 civil filings in the district of Minnesota 
each year and we have seven active district court judges.
    And so our district court has determined that its highest 
and best use of its magistrate judges is to attempt to settle 
cases. And two to three days a week, we bring parties together 
in lengthy, complicated settlements.
    You know, litigation is so costly these days, too, that in 
many ways, that brings about justice earlier in a case in a way 
that's cost-effective and it's an important opportunity for us 
as a court to provide to the parties and lawyers.
    I also think to be a good settlement judge, a magistrate 
judge has to gain the respect and rapport of both sides, 
because once you lose the respect and rapport of one side, they 
won't engage in the settlement process. And by nature, 
settlement is difficult. It's a compromise and it's difficult 
not to win.
    And so I think it requires certain skills, but most 
importantly, that the parties do trust you and respect your 
judgment on assessing the strength of their cases.
    Senator Klobuchar. Very good. And you have also had trials, 
is that right, that you have overseen trials, as well?
    Judge Nelson. As a magistrate judge. Certainly, in my 
private practice, I have been in many trials and as a 
magistrate judge, I have had three trials to verdict.
    Senator Klobuchar. All right. Well, very good. Thank you 
very much. Thank you, all of you, and good luck.
    Senator Cardin. Senator Franken.
    Senator Franken. Just to start, Mr. McConnell, I believe 
that people have a right to health care, but I know that it is 
not in the Constitution and I do not think I would be confused, 
and I am not even a lawyer.
    [Laughter.]
    Senator Franken. You talk about giving up childish things. 
I talk about doing that.
    [Laughter.]
    Senator Franken. All right. Judge Nelson, I am really 
impressed by your record of volunteering as a mentor to the 
disadvantaged kids and disadvantaged students. What impact do 
you think those experiences have had on your work as a 
magistrate judge?
    Judge Nelson. Thank you, Senator Franken. I appreciate the 
opportunity to address that question. When I graduated from law 
school in the late 1970s, I found myself in this new profession 
with very few mentors. I didn't know any women judges, I didn't 
know any women partners, and I didn't know any women 
politicians.
    I barely knew any women who worked outside the home. And I 
always promised myself that if I enjoyed some success in this 
profession, that I would turn around and provide mentorship to 
those who also didn't have mentors in their lives, and I think 
it's essential to do that.
    I mentor at every level. We have a wonderful program that 
came out of the seventh circuit, actually, which Judge Ann 
Williams of the seventh circuit began the program, and that is 
to provide mentorship to disadvantaged children in high 
schools, and we've done that in Minneapolis and in many other 
parts of the country.
    I've also provided mentorship at the college level and at 
the law school level. And I believe it gives everybody a sense 
that they can do what they dream of.
    Thank you.
    Senator Franken. Thank you. Mr. McConnell, you engaged in a 
wide variety of pro bono litigation, including on behalf of 
immigrants and the homeless and persons with disabilities.
    How do you make the decision? How do you decide where to 
devote your pro bono time?
    Mr. McConnell. Thank you, Senator. That's a good question. 
I hadn't thought of it. In some cases, it knocks on your door. 
In some cases, you volunteer time, as I have, with the homeless 
legal clinic and you sit at a table where social services are 
offered to homeless people, including time with an attorney, 
and that's where the rubber really hits the road and you find 
legal problems that--a man who lived in his car who needed his 
car, but didn't have his driver's license, and needed to move 
it and you work and try and get him his license back, which we 
successfully did.
    So sometimes you make yourself available to it, and that's 
been--and sometimes they come back at you. I had an instance, 
Senator, where I represented four developmentally disabled 
adults who had spent most of their time in an institution, who 
had lived successfully in the community in a residence, and the 
state moved them out and wanted to put them back into another 
institution and they landed on my door and we went to court and 
got an injunction to stop it.
    They left them alone for 12 years and then tried it again. 
And they came back at my door and knocked again and we went 
back to court the court reviewed it and issued an injunction to 
stop it.
    So they come in a variety of different ways and you always 
can expect them.
    Senator Franken. Sounds pretty haphazard.
    Mr. McConnell. It is oftentimes, Senator.
    Senator Franken. Judge Nelson, as Senator Klobuchar 
mentioned, you have served as a magistrate judge for 10 years. 
What are some of the most notable settlements that you have 
had? Can you describe one? Most people think of magistrate 
judges doing civil. Can you name one that is just sort of 
memorable in a way that is illustrative of how you will be a 
Federal judge?
    Judge Nelson. Sure.
    Senator Franken. That is a hard thing to put together. Do 
your best.
    Judge Nelson. Sure, Senator Franken. Thank you. I have had 
many settlements that I have been very proud of. And so I don't 
mean to slight anybody by selecting one, but one that I'm 
especially proud of is a case known as Pagliolo v. Guidant.
    Guidant, a very big company, of course, engaged in a 
reduction in force and laid off hundreds and hundreds of 
employees and in doing so, it was alleged, their decisions had 
a disparate impact on older employees. That was the allegation 
in the case.
    So there were a class of the employees who had been fired 
or laid off who sued and it was a very emotional case. Many of 
those people had worked for 20 or 30 years for the company and 
the company felt very strongly that they had carefully 
considered their RIF to ensure that it would have no disparate 
impact on age.
    And it took us several long days to work through it, but we 
were able to reach consensus on it, and I'm particularly proud 
of it.
    Senator Franken. Thank you. Thank you, Mr. Chairman.
    Senator Cardin. We will have a second round, because I 
believe that Senator Kyl does want to ask some questions, and 
Senator Sessions.
    Let me just ask, if I might, a couple questions, then I 
will turn it to my colleagues.
    Judge Bredar, you are in your second term as a magistrate 
judge, having served there for over a decade. What experiences 
do you take out of your being a magistrate judge that, if you 
are confirmed, sir, as a district court judge, you would use to 
try to improve the administration of justice in the Maryland 
district using the district court judges and experiences that 
you have had a magistrate judge to try to make the system more 
efficient?
    Judge Bredar. Thank you, Senator Cardin. Echoing some of 
what Judge Nelson has said, a critical role that magistrate 
judges play in the district of Maryland is in settling cases or 
attempting to. And if there were a retail level of judicial 
work in this country, I believe it is when judges are at the 
settlement table face-to-face with the litigants and the 
lawyers who represent them.
    From that experience, a judge develops a deep sense of just 
how extremely important the issues are involving ths litigants, 
but not just how important it is to them that the case 
ultimately be resolved, but also that it be done in a timely 
manner; that there not be delays.
    You, I think, have some distance as a district judge in a 
way that a magistrate judge doesn't, so that when you grant a 
postponement or you are unable, for whatever reasons, to get a 
prompt decision or opinion out, you're maybe not quite as aware 
of the impact that that has on people's lives and abilities to 
run their businesses, to conduct their personal affairs and so 
forth.
    As a magistrate judge, you hear those stories, because you 
sit with those litigants in settlement conferences. And I 
firmly believe that while, certainly, a lot of what you're 
hearing about is the substance of the case, you also hear a 
great deal of their frustration with the process itself.
    And a lot of that has to do with how discovery is 
conducted, how long it takes for rulings to be made, why was my 
trial postponed, and these sorts of things.
    I will take with me that experience, if I'm so fortunate as 
to be confirmed. These are real people. Our decisions, even our 
administrative decisions, have real consequences in their lives 
and in the operation of their businesses, and nothing is 
unimportant that a United States district judge does.
    Senator Cardin. Thank you. Thank you for that answer.
    Judge Hollander, you would bring considerable State 
judicial experience both at the circuit court level and at the 
appellate court level.
    As you know, I come from the a family of a circuit court 
judge and a State judge and I know, at times, there is a view 
that even though our Federal court and State court are only 
located a couple blocks apart, that there is a real difference 
as the way the pace of justice in the two courts.
    How do you see taking the experience in the State court and 
how will your adjustment be moving to the Federal bench?
    Judge Hollander. Senator, thank you for the question. And I 
hope it's appropriate to say that I knew your father. He was a 
wonderful man and, obviously, the apple didn't fall far from 
the tree, and I do feel compelled to say that, since you 
mentioned him.
    I think my service----
    Senator Sessions. That is OK, you are under oath.
    [Laughter.]
    Judge Hollander. And every word was true. I was a young 
lawyer when he was on the bench and he was very kind to me.
    I think my State service will serve me enormously well, if 
I am fortunate enough to be confirmed. Many of the issues that 
come before the State courts often involve questions of Federal 
law. Obviously, in the criminal arena, we see Fourth, Fifth, 
Sixth Amendment issues, Eighth Amendment issues.
    In the civil domain, we have cases from which we draw upon 
Title VII, ADEA cases. We've had many cases involving issues 
under both the civil rules of procedure and the criminal rules 
of procedure. Our State rules are modeled on the Federal rules.
    And I've had a number of cases over the years where we've 
had to look by analogy to the State--in State law, drawing on 
Federal cases to answer the questions.
    So I feel very comfortable that my service as a State judge 
will be enormously helpful, if I am fortunate enough to be 
confirmed.
    Senator Cardin. Senator Sessions.
    Senator Sessions. Mr. McConnell, looking at a couple of 
your statements that Senator Kyl asked you about, and I have a 
lot of good friends who are good trial lawyers, this seemed to 
fit a number of them.
    ''I am an emotional person about injustice at any level, 
personal, societal or global. There are wrongs that need to be 
righted, and that's how I see the law,'' closed quote. So I 
think being passionate and zealous is a good quality for a 
litigator, and it seems to be that way for people who are 
highly successful in the plaintiff bar.
    But I do think those qualities are somewhat different 
cloistered halls of a courtroom, where you are reading briefs 
and trying to be objective, and those emotions might start 
running and you might see that there is a wrong there that I 
need to right.
    Do you feel like--I will just ask you again. Do you feel 
that you can--that you are seeking the job as the kind of judge 
I believe we need, one that calls the balls and strikes, does 
not take sides in the ball game and fairly adjudicates the just 
result of the case based on the law and the facts?
    Mr. McConnell. I do, Senator Sessions. My job as an 
advocate in the courtroom was my job to advocate. My ethical 
responsibilities were to do it zealously and I believe, for 25 
years, I did that.
    I oftentimes, in some of the cases--the people that I 
represented, you would develop relationships with and you would 
advocate on their behalf. That was what I saw as my role.
    But my role would definitely be different as a judge. I 
have----
    Senator Sessions. After you try a case--I am a little bit 
taken aback by the op-ed criticizing the court that ruled 
against you 4:0 on one of these cases. It seemed to me that was 
a bit unusual. Most people that make sure they have calmed down 
good after the case is over before they write an op-ed 
criticizing the court that 4:0 ruled against them.
    Do you have any second thoughts about that op-ed that you 
wrote?
    Mr. McConnell. Only, Senator Sessions, in that I've been 
asked a lot about it during this process and if I hadn't 
written it, I wouldn't have had to talk about it so often.
    And are there word choices that perhaps you would choose 
differently? Sure. We have a tradition in Rhode Island. We're 
many years without a law school, and lawyers oftentimes would 
be the ones that would need to critique the law.
    I can recall back in 1983, when I was clerking, he went on 
to become Justice Flanders on our Rhode Island Supreme Court, 
wrote a very strident op-ed against an opinion that the Rhode 
Island Supreme Court had written and that, since that time, has 
sort of been our tradition to critique the law and----
    Senator Sessions. Well, it is all right to point out why 
you might think--I think it is a free country. It is not 
normally done by most good lawyers I know. But I do think you 
can speak out about litigation.
    But you accused the court of letting, quote, ``wrongdoers 
off the hook.'' That is the kind of results-oriented criticism 
that makes me uneasy.
    You understand what I am saying?
    Mr. McConnell. I do, Senator.
    Senator Sessions. A very important distinction, is it not?
    Mr. McConnell. It is, Senator.
    Senator Sessions. So you are accusing the court of 
deliberately, the way I would look at that quote, as crafting a 
result that let wrongdoers off the hook. And maybe they had no 
choice under the law but to rule against you.
    I could see you questioning their analysis of the law, but 
that conclusion--would you explain how you felt comfortable 
using those words?
    Mr. McConnell. I will try, Senator. Thank you. Taken in 
context, Senator, it was the State's belief that the public 
nuisance law of Rhode Island that had been in existence for 200 
years was the appropriate avenue for the State to choose, given 
the fact some of the law of the State of Rhode Island at the 
time, to bring this case.
    That was done. It was tried before a jury. The jury 
returned a verdict for the State. The trial judge affirmed the 
verdict under that longstanding law. And it was appealed to the 
Supreme Court.
    The Supreme Court disagreed. They disagreed with the 
State's analysis of the law, and the results of that were that 
the law, as the State perceived it at the time and I, as their 
counsel, was overturned, that had existed for centuries in our 
State.
    And the effect of that change of law were, according to the 
allegations that the jury found, that wrongdoers were let go. 
It was not----
    Senator Sessions. Well, the judges of the court somehow 
decided to let these wrongdoers go and change established law, 
is that your testimony?
    Mr. McConnell. I apologize, Senator, I missed the first 
part of the question.
    Senator Sessions. It is your testimony that all four of the 
judges who reviewed this case changed the law so that they 
could let wrongdoers off the hook.
    Mr. McConnell. No, Senator, not so that they could, two 
independent clauses. We believed--the State believed that the 
law--that the Supreme Court overturned and changed longstanding 
public nuisance law, period. That's----
    Senator Sessions. Well, I will take a look at that, but I 
am not so much concerned about whether or not you criticized 
them for, quote, ``changing the law,'' if that is what they 
did. I am more concerned by your characterization of it as 
suggesting they had some desire to let wrongdoers off the hook.
    Mr. McConnell. I did not intend to give that perception and 
I believe in that op-ed, Senator, we referenced the 
longstanding change in law that we--that the State alleged took 
place because of the Supreme Court opinion.
    Senator Sessions. My time is up. Thanks, Senator.
    Senator Cardin. Senator Whitehouse.
    Senator Whitehouse. Thank you. As the lead attorney in the 
early parts of this case, I can add my two cents on that, 
because I was probably even more disappointed and dismayed by 
the Supreme Court's decision than Jack McConnell was.
    I argued all of the early dispositive motions personally. I 
was very familiar with the law. We had done extensive research; 
I had done extensive research. The public nuisance theory was 
one that I had brought forward. I had done previous public 
nuisance cases. I thought it fit perfectly.
    The trial judge in this case was a gentleman named Michael 
Silverstein. He is a very tough, smart business judge. He ran 
the business calendar on the Rhode Island Superior Court.
    I do not think there is a judge on the Superior Court who 
would not say that he is, if not the best, one of the very best 
judges not only now on the Superior Court, but in its history.
    This trial was the longest trial in Rhode Island history. 
It spanned my tenure as attorney general and went into the next 
attorney general's tenure. It was Attorney General Lynch who 
ultimately won it at trial.
    Judge Silverstein is an extraordinarily distinguished 
person. I think that we--between the independent judgment that 
we reached about where the law was, the confirmation we got 
over and over through dispositive motions and rejection of 
motions to dismiss and overturn the verdict and all that we got 
from Judge Silverstein, that there was a very strong sense that 
had actually gotten a conviction that should stand and that the 
trial judge and the trial jury had both established that these 
were indeed wrongdoers. Period.
    And then when the Supreme Court changed the law, it did 
have the effect of letting these defendants, who had been 
determined to be wrongdoers both by a jury of their peers and 
by the very, very capable, very no nonsense trial judge, and 
they got off the hook.
    So I actually can remember calling Jack when I saw the 
piece and to say I thought you kind of let them off easy, 
actually, but I am glad you did not consult with me on it.
    So I just wanted to add that comment. I have some personal 
experience with that.
    Senator Sessions. (Off microphone) because I value your 
experience and judgment on this matter.
    Senator Whitehouse. The other thing I would add--and I have 
got a little time remaining, I think. I just want to highlight 
some of the things that some of our Republicans have said.
    I know the letters are in the record. But Scott Avedisian 
has said, ``As the Republican mayor of Rhode Island's second 
largest community, I've always firmly believed that the ability 
to reach consensus among people of different points of view is 
critical for the well being of our residents and our state as a 
whole. In the time I've come to know Jack, I've realized he 
shares the same philosophy. I believe that Jack would be a 
valuable asset to the bench and a good representative of Rhode 
Island in the Federal court system. I am proud to offer this 
recommendation.''
    Justice Weisberger concludes his letter that ``Jack 
McConnell would be superbly qualified to preside as a Federal 
judge over the most challenging and complex cases. He is a man 
of keen intelligence and impeccable integrity. He would be a 
splendid addition to the distinguished bench of the United 
States District Court of Rhode Island.''
    Attorney General Pine concludes that ``There is no 
question, in my mind, that Jack would be an honest, principled, 
ethical and fair judge. He would be a credit to our state and 
to our judiciary. He has earned this prestigious position for 
his many years of hard work, legal experience and success as an 
attorney, as well as his position in the community as a 
respected civic leader and family man. I enthusiastically 
support his candidacy for a position on the Federal bench.''
    And then John Harpootian, who is actually an official--he 
is vice Chairman of the state Republican Party. ``Time and 
again, Jack has proven that he is a man of great principle and 
integrity. While being a vigilant advocate for his clients in 
the causes that he has taken up during his professional career, 
Jack has always conducted himself in the most ethical and 
professional manner. One of the greatest characteristics that I 
admire about Jack so much is that despite political differences 
of opinion, he never allowed those differences to become 
personal or to cloud his judgment. These characteristics lead 
me to unqualifiedly support Jack's confirmation to the United 
States District Court of Rhode Island.''
    Judge Fisher of the Third Circuit writes to most favorably 
recommend Jack McConnell and to conclude that ``He is an 
outstanding nominee to serve on the U.S. District Court for the 
District of Rhode Island and I enthusiastically support his 
nomination.''
    The last thing I will mention, as my time runs out, is that 
I know that the United States Chamber of Commerce has taken a 
position, kind of extraordinarily for a trial judge, supported 
by both Senators of the home state. The Greater Providence 
Chamber of Commerce, which is the largest Chamber of Commerce 
in Rhode Island, has distanced itself from that opinion and has 
said, ``The Greater Providence Chamber of Commerce was not 
consulted at any point in the process by the United States 
Chamber of Commerce or its Institute for Legal Reform as to our 
views relative to the nomination of Mr. McConnell. The Greater 
Providence Chamber of Commerce has never endorsed nor opposed 
nominees running for the Federal or state judiciary.'' And then 
it concludes, ``We would point out that Mr. McConnell is a well 
respected member of the local community, leading important 
civic, charitable and economic development institutions.''
    So the anxiety that seems to appear in some quarters is 
really not shared in Rhode Island from the business community, 
through our own Chamber of Commerce, through very significant 
Republican leaders and officials, and certainly throughout the 
legal community, and Senator Reed and myself.
    Senator Cardin. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. Since we are 
discussing this lead paint litigation, let me ask you about 
that.
    The information I have is that you were awarded the no bid 
contingency contract in 1999 by the State of Rhode Island to 
bring suit against the former manufacturers of lead paint. Is 
that correct?
    Mr. McConnell. My law firm, along with another law firm, 
was engaged by then Attorney General Whitehouse pursuant to his 
powers, statutory powers to do so.
    Senator Kyl. This is the litigation we were just talking 
about. Right?
    Mr. McConnell. Yes, Senator.
    Senator Kyl. And the news reports, at least some of them, 
suggest that it was you who approached the Rhode Island 
attorney general. Did you?
    Mr. McConnell. I did not.
    Senator Kyl. You did not.
    Mr. McConnell. No, Senator.
    Senator Kyl. All right. Do you know how the representation 
came about?
    Mr. McConnell. I do, Senator.
    Senator Kyl. Was it somebody else in your law firm that 
approached the attorney general or did he approach them or how 
did that come about? Do you know?
    Mr. McConnell. No, Senator. The case came about when our 
firm was engaged in certain cases on behalf of children that 
had lead poisoning in the ordinary course of claims against 
homeowners' insurance or against the landlord, and we had been 
involved in that throughout the country.
    When I represented the state in its tobacco lawsuit, then 
Attorney General Pine, Republican Attorney General Pine was the 
attorney general and I would sit and brief him on the 
negotiations and ultimately the settlement, so that he could 
make a decision whether to sign onto it or not.
    He brought up the fact that he had started a task force 
working on lead paint issues. We had a very, very--we had 
thousands of children----
    Senator Kyl. Let me just interrupt you. This is not that 
big a deal as to who said what to whom here. I am just trying 
to----
    Mr. McConnell. It was actually Attorney General Pine who 
asked me to put it together. I left a binder. He was on his way 
out. He said, ``I can't saddle the next attorney general with 
this,'' and he left the analysis for incoming Attorney General 
Whitehouse.
    Senator Kyl. Good. You are familiar with criticism in the 
media about representation of your firm in some of this 
litigation, are you not?
    Mr. McConnell. I have seen it, yes, Senator.
    Senator Kyl. And some of that may be relative to your--I 
mean, after your nomination to serve on the court, obviously.
    Would you say that either you or other partners at Motley 
Rice did anything to encourage this particular kind of 
litigation over lead paint?
    Mr. McConnell. We were asked to analyze the law and the 
facts in the case and we prepared an analysis and a binder and 
turned it over to then Attorney General Pine and then to 
Attorney General Whitehouse.
    Senator Kyl. Well, let me ask it a little bit more broadly. 
After you got the verdict in the case we are talking about, the 
one that was overturned by the Rhode Island Supreme Court.
    Mr. McConnell. Yes, Senator.
    Senator Kyl. One newspaper described you, and this is a 
quotation, as ``the lead lawyer in the Ohio lawsuits'' and 
quoted you as saying, and I am quoting, ``The movement is 
gaining steam. We have seen it in both the Rhode Island trial 
and in three or four appellate court decisions, all of which 
have ruled against the lead paint industry.''
    Do you think it is right for lawyers to bring lawsuits as 
part of a movement against an industry?
    Mr. McConnell. No, I don't, Senator, and----
    Senator Kyl. Do you think that quotation was inaccurate, as 
quoting you--and I will say it again. Let me just figure out 
the quotation here.
    From the New York Times, January 6, 2007, quoting you as 
saying, ``The movement is gaining steam. We have seen it in 
both in the Rhode Island trial and three or four appellate 
decisions, all of which have ruled against the lead paint 
industry.''
    Mr. McConnell. I think if--I don't particularly remember 
the article, Senator. I apologize. I believe it was a general 
story about the state of lawsuits nationwide against former 
manufacturers of lead pigment in paint and I believe what I was 
saying was after many years of rulings that went in favor of 
the pigment industry, that there had been a series of rulings, 
Rhode Island, Ohio, California, and others, that actually--it 
had shifted----
    Senator Kyl. Gone the other way.
    Mr. McConnell. Right. It had shifted from sort of unanimous 
one side to--after Attorney General Whitehouse brought the 
Rhode Island case, it sort of shifted legally the other way. It 
was sort of a----
    Senator Kyl. So you are quoted as saying ``The movement is 
gaining steam'' and then you referred to Rhode Island and three 
or four other appellate decisions.
    Mr. McConnell. There had been a period where more of the 
law was being defined in favor of the government entities who 
were bringing these cases, yes, Senator.
    Senator Kyl. I am just curious then. You say it is not 
right for lawyers to bring lawsuits as part of the movement 
against an industry, but it sounds like that is exactly what 
you were saying.
    Mr. McConnell. No. What I was saying was that the legal 
opinions that this--I believe--again, I don't recall the 
article, exactly, but that the legal opinions that the courts 
were issuing--the attempt to--the cases were being brought 
against lead pigment companies back maybe into the 1970s. My 
dates may be off a little bit. And there were a series of them 
where courts had ruled that it wasn't applicable, for a variety 
of reasons.
    And then after an analysis in Rhode Island under the public 
nuisance law and the judge's ruling there and in a few other 
places, it had sort of shifted. It was sort of more of a 
historic comment, Senator, than it was anything beyond that.
    Senator Kyl. I understand. My 5 minutes is up. It is kind 
of hard to have continuity in questioning when we have this 
kind of limitation.
    I understood the point you were originally trying to make, 
but if I can--and I have a couple more minutes' worth of 
questions just as a follow-up to this. My point really was not 
only is it right to seek this as a movement, but whether you 
actually encouraged these lawsuits in other states, you or your 
law firm. Did you?
    Mr. McConnell. No, Senator, we did not.
    Senator Kyl. Are you aware of any role by the Association 
of Community Organizers for Reform Now, that's ACORN, in how 
those cases might have come to be filed?
    Mr. McConnell. No. Neither I nor my firm have had any 
relationship with ACORN.
    Senator Kyl. Mr. Chairman, I have just two other quick 
questions.
    Senator Cardin. Without objection, Senator.
    Senator Kyl. Thank you. I appreciate it. One has to do with 
a letter that was written on June 4, 2009, the Public Nuisance 
Fairness Coalition wrote a letter to Attorney General Holder 
asking the Department of Justice to look into several 
allegations of wrongdoing related to the Rhode Island lead 
paint case that you handled.
    Are you aware of that letter?
    Mr. McConnell. I have seen it, yes, Senator.
    Senator Kyl. All right. Has any----
    Mr. McConnell. Not from them.
    Senator Kyl. From some other source.
    Mr. McConnell. Yes, Senator.
    Senator Kyl. Did any law enforcement official contact you 
regarding the allegations in it?
    Mr. McConnell. No, Senator, they didn't.
    Senator Kyl. All right. And so are you aware of whether any 
investigation is ongoing or has been concluded?
    Mr. McConnell. I have heard nothing of it other than when I 
received that and I was sort of outraged by the false 
accusations that were contained in there.
    Senator Kyl. Thank you. My last question is just this, and 
if you would like to, rather than taking time of the Committee, 
reflect on this and provide a written answer, that is fine with 
me.
    It just is the general question of how you would view 
recusal in cases of this kind given your substantial 
involvement in whether it be lead paint or tobacco litigation. 
And I do not know that I am even asking a specified question 
here, other than as you look at how you would have to deal with 
this as a judge, have you thought about it and if you would 
think about it, how do you think you would come out on matters 
of recusal?
    And if you would like, as I said, given the time, the fact 
that I am over time, I am happy to allow you to answer that 
question on the record.
    Mr. McConnell. I appreciate that, Senator. I will do that.
    Senator Cardin. We expect there will likely be questions, 
other questions, that will be offered in writing also.
    Senator Kyl. That is fine. Thank you, and, again, I thank 
the indulgence of all the members of the panel.
    Senator Cardin. Senator Klobuchar.
    Senator Klobuchar. I have no additional questions at this 
time.
    Senator Cardin. Senator Franken.
    Senator Franken. I guess I do not have any questions for 
the nominees. I do have a question--maybe a couple of questions 
for Senator Whitehouse. Is that all right?
    [Laughter.]
    Senator Cardin. It is not all right.
    Senator Franken. All right. Well, then, I will not--I will 
just ask them out loud, which is I was wondering if those 
letters that he read from were from people who knew Mr. 
McConnell very well.
    Senator Whitehouse. Yes. They were written by people who 
actually knew Jack McConnell very well.
    Senator Franken. And they are people from Rhode Island.
    Senator Whitehouse. That is correct. You are two for two.
    Senator Franken. And they must have been Democrats, I 
guess, because they were so laudatory, is that right?
    Senator Whitehouse. No. You are wrong there, I am sorry.
    Senator Franken. I am wrong there? All right. So they were 
Republicans?
    Senator Whitehouse. Yes.
    Senator Franken. But they were so laudatory and they know 
him very well.
    Senator Whitehouse. That is right.
    Senator Franken. All right. I am confused. Thank you, Mr. 
Chairman.
    Senator Cardin. It just goes to show you should have gone 
to law school.
    [Laughter.]
    Senator Cardin. The hearing record will remain open for one 
week for additional statements and questions from Senators. I 
ask the nominees to try to respond to those questions in a 
timely manner, because we cannot schedule the--it is difficult 
to schedule the action of the Committee until after the 
material is made available to the Senators who request it.
    So I would ask that you try to respond to that in a timely 
way.
    Senator Sessions. Mr. Chairman, thank you. Mr. McConnell, I 
have enjoyed talking with you this morning. There has been some 
complaints or controversy about your nomination. It is not 
possible for us to run through all that today. So I may submit 
some additional questions for the record.
    These are important issues. There has been a lot of public 
policy discussion about these kind of class action lawsuits, 
whether they have been abused, how much money the lawyers have 
made off the cases, and what is the best way to affect good 
public policy.
    So I know the Chamber of Commerce has spent a lot of time 
studying the issues and they have some strong opinions on it. 
So I value the fact that they are concerned about your 
nomination and oppose it, and I give that some credibility.
    I do not dismiss it lightly. But you are entitled to a fair 
day to get your side out, and when you are involved in 
litigation of this intensity, sometimes hard feelings can 
occur. So I understand that. And we will look forward to 
complete answers about that.
    Otherwise, I do not think we would have fulfilled, Mr. 
Chairman, the responsibility we have to clear the air on issues 
of controversy.
    Thank you.
    I will say Senator Reed also spoke very highly of you. He 
has talked to me more than once and I appreciate that.
    Mr. McConnell. Thank you, Senator.
    Senator Cardin. And as has been pointed out frequently, the 
five nominees that we have before us today all are seeking 
confirmation for lifetime appointments. So we consider the 
confirmation process to be a very important responsibility of 
the Senate.
    I know that the hearing has gone on longer than we had 
anticipated. I want to thank particularly those that are in the 
room for their patience. And we had a lot of young people here 
and they were very well behaved and didn't hear them at all. So 
I want to compliment the audience, and, again, thank the 
families and friends for their support, and our nominees for 
being prepared to take on this responsibility.
    With that, the Committee will stand adjourned.
    [Whereupon, at 5:10 p.m., the hearing was concluded.]
    [Questions and answers and submissions for the record 
follow.]

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