[Senate Hearing 111-695, Part 4]
[From the U.S. Government Publishing Office]
S. Hrg. 111-695, Pt. 4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
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OCTOBER 7, OCTOBER 21, NOVEMBER 4, NOVEMBER 18, DECEMBER 1, and
DECEMBER 16, 2009
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Serial No. J-111-4
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PART 4
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 111-695, Pt. 4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 7, OCTOBER 21, NOVEMBER 4, NOVEMBER 18, DECEMBER 1, and
DECEMBER 16, 2009
__________
Serial No. J-111-4
__________
PART 4
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
63-004 WASHINGTON : 2011
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
WEDNESDAY, OCTOBER 7, 2009
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 1
prepared statement........................................... 141
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 163
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 3
PRESENTERS
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, presenting Laurie Robinson, Nominee to be
Assistant Attorney General for the Office of Justice Programs,
Department of Justice.......................................... 7
Warner, Hon. Mark, a U.S. Senator from the State of Virginia,
presenting Barabara Milano Keenan, Nominee to be U.S. Circuit
Judge for the Fourth Circuit................................... 4
Webb, Hon. Jim, a U.S. Senator from the State of Virginia,
presenting Barabara Milano Keenan, Nominee to be U.S. Circuit
Judge for the Fourth Circuit................................... 3
STATEMENT OF THE NOMINEES
Jackson, Ketanji Brown, Nominee to be a Member of the U.S.
Sentencing Commission.......................................... 74
Questionnaire................................................ 75
Keenan, Barbara Milano, Nominee to be U.S. Circuit Judge for the
Fourth Circuit................................................. 6
Questionnaire................................................ 17
Robinson, Laurie, Nominee to be Assistant Attorney General for
the Office of Justice Programs, Department of Justice.......... 49
Questionnaire................................................ 50
QUESTIONS AND ANSWERS
Responses of Ketanji Brown Jackson to questions submitted by
Senator Sessions............................................... 102
Responses of Barabara Milano Keenan to questions submitted by
Senators Sessions and Coburn................................... 104
Responses of Laurie O. Robinson to questions submitted by Senator
Coburn......................................................... 125
SUBMISSIONS FOR THE RECORD
Academy of Criminal Justice Sciences, Janice Joseph, President,
and Todd R. Clear, President, American Society of Criminology,
joint letter................................................... 133
American Correctional Association, James A. Gondles, Jr.,
Executive Director, Alexandria, Virginia, letter............... 135
American Probation and Parole Association, Carl Wicklund,
Executive Director, Lexington, Kentucky, letter................ 136
American Society of Criminology, Todd R. Clear, President,
Columbus, Ohio, letter......................................... 137
Blumstein, Alfred, Professor, H. John Heinz III School of Public
Policy and Management, Carnegie Mellon University, Pittsburgh,
Pennsylvania, letter........................................... 139
Chiarkas, Nicholas L., Wisconsin State Public Defender, Madison,
Wisconsin, letter.............................................. 144
Cicilline, David N., Mayor, Providence, Rhode Island, letter..... 145
Council of State Governments Justice Center, Pat Colloton,
Bethesda, Maryland, letter..................................... 146
English, Sharon J., June 1, 2009, letter......................... 148
Esserman, Dean M., Colonel, Chief of Police, Providence Police
Department, Providence Rhode Island, letter.................... 149
Heilig, John A., Attorney, Heilig, Norfolk, Virginia, letter..... 151
Hightower, Carolyn A., June 3, 2009, letter...................... 153
Hynes, Charles J., District Attorney, County of Kings, Brooklyn,
New York, leter................................................ 155
International Association of Chiefs of Police, Russell B. Laine,
President, Alexandria, Virginia, letter........................ 157
International Community Corrections Association, Jane Browning,
Executive Director, Silver Spring, Maryland, letter............ 158
International Union of Police Associations AFL-CIO, Clocumb,
Dennis, International Vice President, Alexandria, Virginia,
letter......................................................... 159
Johnson, Thomas G., Jr., Attorney, Willcox, & Savage, Norfolk,
Virginia, letter............................................... 161
Major Cities Chiefs Association, William J. Bratton, Chief of
Policy, President, letter...................................... 165
Mastracco, Vincent J., Jr., Kaufman & Canoles, Attorneys and
Counselors at law, Norfolk, Virginia, letter................... 166
Miller, Thomas J., Attorney General, Department of Justice,
DesMoines, Iowa, letter........................................ 168
National Association of Counties, Larry E. Naake, Executive
Director, Washington, DC, letter............................... 170
National Association of Drug Court Professionals, C. West
Huddleston, III, Chief Executive Officer and Executive
Director, Alexandria, Virginia, letter......................... 171
National Association of Police Organizations, Inc., William J.
Johnson, Executive Director, Alexandria, Virginia, letter...... 172
National Association of State Alcohol and Drug Abuse Directors,
Inc., Robert I.L. Morrison, Interim Executive Director,
Washington, DC, letter......................................... 173
National Association of VOCA Assistance Administrators, Steve
Derene, Executive Director, Madison, Wisconsin, letter......... 175
National Crime Prevention Council, Ann M. Harkins, President and
CEO, Arlington, Virginia, letter............................... 177
National Crime Victim Assistance and Allied Justice
Organizations; Association of Prosecutying Attorneys; ATTIC
Correctional Services, Inc.; Colorado Organization for Victim
Assistant; The Damian Corrente Memorial Youth Foundation;
Denver District Attorney's Office; IllinoisVictims.org;
International Organization for Victim Assistance; Justice
Solutions, Inc.; Mary Byron Project; Maryland Crime Victims
Resource Center; National Alliance to End Sexual Violence;
Monika Johnson Hostler, President; National Association of
Crime Victim Compensation Boards; National Association of VOCA
Assistance Administrators; Naitonal Coalition of Victims in
Action; National Crime Victim Law Institute; National Crime
Victims Research and Treatment Center; National District
Attorneys Association; National Organization for Victims of
Juvenile Lifers; Renee Olubunmi Rondeau Peace Foundation;
Security On Campus, Inc., Survivors Network, Michigan; Rachel
Atkinson, Community Activist, Agawam, Michigan; Janet Burt,
Detroit, Michigan; Sharon J. English, National Victim Advocate,
San Clements, California; Anne Seymour, National Victim
Advocate, Washington, DC; Pamela Pupi, Survivor and Advocate;
Gail Burns Smith, National Victim Advocate, Connecticut;
International Organization for Victim Assistance; Security on
Campus; Sharon J. English; Caroly A. Hightower; and Anne
Seymour, joint letter.......................................... 179
National Criminal Justice Association, Roland Mena, President and
Cabell Cropper; Executive Director, Washington, DC, letter..... 181
National District Attorneys Association, Joseph I. Cassilly,
President, Alexandria, Virginia, letter........................ 182
National League of Cities, Donald J. Borut, Executive Director,
Washington, DC, letter......................................... 183
National Legal Aid & Defender Association, Jo-Ann Wallace,
President & CEO, Washington, DC, letter........................ 185
National Organization of Black Law Enforcement Executives, Jessie
Lee, Executive Director, Alexandria, Virginia, letter.......... 187
National Sheriffs' Association, Sheriff David A. Goad, President,
and Aaron D. Kennard, Executive Director, Alexandria, Virginia,
letter......................................................... 188
National Troopers Coalition, Michael S. Edes, Chairman,
Washington, DC, letter......................................... 190
Police Executive Research Forum, Chuck Wexler, Executive
Director, Washington, DC, letter............................... 191
Robinson, Laurie, Nominee to be Assistant Attorney General for
the Office of Justice Programs, Department of Justice,
statement...................................................... 192
Security on Campus, Inc., Janathan Kassa, Executive Director, and
S. Daniel Carter, Director of Public Policy, King of Prussia,
Pennsylvania, joint letter..................................... 194
Seymour, Anne K., National Crime Victim Advocate, Washington, DC,
letter......................................................... 195
Siegel, Steven, Director, Special Programs Unit, Denver District
Attorney, Denver, Colorado, letter............................. 196
United States Conference of Mayors, Tom Cochran, CEO and
Executive Director, Washington, DC, letter..................... 197
Wallenstein, Arthur M., Director, Montgomery County, Department
of Correction and Rehabilitation, Rockville, Maryland, letter.. 198
Young, Marlene A., President, International Organization for
Victim Assistance, Newberg, Oregon, letter..................... 200
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WEDNESDAY, OCTOBER 21, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 299
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 201
PRESENTERS
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee
presenting Jane Branstetter Stranch, Nominee to be U.S. Circuit
Judge for the Sixth Circuit.................................... 201
Corker, Hon. Bob, a U.S. Senator from the State of Tennessee
presenting Jane Branstetter Stranch, Nominee to be U.S. Circuit
Judge for the Sixth Circuit.................................... 202
STATEMENT OF THE NOMINEES
Stranch, Jane Branstetter, Nominee to be U.S. Circuit Judge for
the Sixth Circuit.............................................. 203
Questionnaire................................................ 217
Tucker, Benjamin B., Nominee to be Deputy Director for the State,
Local and Tribal Affairs Office of Drug Control Policy......... 204
Questionnaire................................................ 244
QUESTIONS AND ANSWERS
Responses of Jane Branstetter Stranch to questions submitted by
Senators Sessions and Coburn................................... 265
Responses of Benjamin B. Tucker to questions submitted by
Senators Grassley, Sessions, Coburn, and Feinstein............. 277
SUBMISSIONS FOR THE RECORD
Gillibrand, Kirsten E., a U.S. Senator from the State of New
York, letter................................................... 297
Major Cities Chiefs Association, William J. Bratton, Chief of
Police, Los Angeles, California, letter........................ 303
National Sheriffs' Association, Aaron D. Kennard, Executive
Director, Alexandria, Virginia, letter......................... 304
Police Executive Research Forum, Chuck Wexler, Executive
Director, Washington, DC, letter............................... 305
Travis, Jeremy, President, John Jay College, City University of
New York of Criminal Justice, New York, New York, letter....... 306
Tucker, Benjamin B., Nominee to be Deputy Director for the State,
Local and Tribal Affairs Office of Drug Control Policy,
statement...................................................... 308
Williams, Hubert, President, Police Foundation, Washington, DC,
letter......................................................... 311
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WEDNESDAY, NOVEMBER 4, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 588
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 313
prepared statement........................................... 602
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 337
PRESENTERS
Casey, Hon. Robert P., a U.S. Senator from the State of
Pennsylvania, presenting Thomas I. Vanaskie, Nominee to be
Judge in the U.S. Court of Appeals for the Third Circuit....... 320
Feingold, Hon. Russell, a U.S. Senator from the State of
Wisconsin, presenting Louis B. Butler, Jr., Nominee to be U.S.
District Judge for the Western District of Wisconsin........... 319
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin,
presenting Louis B. Butler, Jr., Nominee to be U.S. District
Judge for the Western District of Wisconsin.................... 318
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama,
presenting Abdul Kallon, Nominee to be U.S. District Judge for
the Northern District of Alabama............................... 331
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, presenting Thomas I. Vanaskie, Nominee to be
Judge in the U.S. Court of Appeals for the Third Circuit....... 317
STATEMENT OF THE NOMINEES
Butler, Louis B., Jr., Nominee to be U.S. District Judge for the
Western District of Wisconsin.................................. 336
Questionnaire................................................ 349
Espinel, Victoria Angelica, Nominee to be Intellectual Property
Enforcement Coordinator, Executive Office of the President..... 336
Questionnaire................................................ 398
Kallon, Abdul K., Nominee to be U.S. District Judge for the
Northern District of Alabama................................... 336
Questionnaire................................................ 415
Reiss, Christina, Nominee to be U.S. District Judge for the
District of Vermont............................................ 336
Questionnaire................................................ 433
Vanaskie, Thomas I., Nominee to be U.S. Court of Appeals for the
Third Circuit.................................................. 321
Questionnaire................................................ 457
QUESTIONS AND ANSWERS
Responses of Louis B. Butler, Jr. to questions submitted by
Senators Coburn, Cornyn, Grassley, Sessions, and Hatch......... 510
Responses of Victoria Espinel to questions submitted by Senators
Coburn, Grassley, Hatch, and Sessions.......................... 545
Responses of Abdul K. Kallon to questions submitted by Senator
Sessions....................................................... 562
Responses of Christina Reiss to questions submitted by Senator
Sessions....................................................... 566
Responses of Thomas Vanaskie to questions submitted by Senators
Coburn, Hatch, and Sessions.................................... 571
SUBMISSIONS FOR THE RECORD
American Federation of Musicians, Thomas F. Lee, President, New
York, New York, letter......................................... 583
American Intellectual Property Law Association, Arlington, VA,
letter......................................................... 584
Business Software Alliance, Robert W. Holleman, III, President
and Chief Executive Officer, Washington, DC, letter............ 586
Copyright Alliance, Patrick Ross, Executive Director, Washington,
DC, letter..................................................... 587
Davis, Hon. Artur, a U.S. Representative in Congress from the
State of Alabama, prepared statement........................... 592
International Trademark Association, Alan C. Drewsen, Executive
Director, New York, New York, letter........................... 594
Espinel, Victoria, Nominee to be U.S. Court of Appeals for the
Third Circuit.................................................. 595
Glickman, Dan, Chairman and Chief Executive Officer, Motion
Picture Association of America, Inc., Washington, DC, letter... 597
Hernandez, Roman D., National President, Hispanic National Bar
Association, Washington, DC, letter............................ 598
Josten, R. Bruce, Executive Vice President, Government Affairs,
U.S. Chamber of Commerce, Washington, DC, letter............... 600
Liuna, Terence M. O'Sullivan, General President, Washington, DC,
letter......................................................... 601
MANA, A National Latina Organization, Alma Morales Riojas,
President and Chief Executive Officer, Wahington, DC, letter... 604
National Music Publishers' Association, David M. Israelite,
President and Chief Executive Officer, Washington, DC, letter.. 605
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WEDNESDAY, NOVEMBER 18, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 874
PRESENTERS
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington
presenting Rosanna Malouf Peterson, Nominee to be U.S. District
Court for the Eastern.......................................... 610
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin presenting William M. Conley, Nominee to be U.S.
District Court for the Western District of Wisconsin........... 618
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin
presenting William M. Conley, Nominee to be U.S. District Court
for the Western District of Wisconsin.......................... 607
Murray, Hon. Patty, a U.S. Senator from the State of Washington
presenting Rosanna Malouf Peterson, Nominee to be U.S. District
Court for the Eastern.......................................... 609
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Denny Chin, Nominee to be U.S. Court of Appeals
for the Second Circuit......................................... 613
Shaheen, Hon. Jeanne, a U.S. Senator from the State of New
Hampshire presenting Susan B. Carbon, Nominee to be Director
for the Violence Against Women Office, Department of Justice... 611
STATEMENT OF THE NOMINEES
Carbon, Susan B., Nominee to be Director for the Violence Against
Women Office, Department of Justice:
Questionnaire................................................ 632
Chin, Denny, Nominee to be U.S. Circuit Judge for the Second
Circuit:
Questionnaire................................................ 666
Conley, William M., Nominee to be U.S. District Judge for the
Western District of Wisconsin:
Questionnaire................................................ 725
Laub, John H., Nominee to be Director of the National Institute
of Justice:
Questionnaire................................................ 746
Peterson, Rosanna Malouf, Nominee to be U.S. District Judge for
the Eastern District of Washington:
Questionnaire................................................ 794
QUESTIONS AND ANSWERS
Responses of Susan B. Carbon to questions submitted by Senator
Coburn......................................................... 821
Responses of Denny Chin to questions submitted by Senators Coburn
and Sessions................................................... 824
Responses of William M. Conley to questions submitted by Senator
Sessions....................................................... 837
Responses of John H. Laub to questions submitted by Senator
Coburn......................................................... 842
Responses of Rosanna Malouf Peterson to questions submitted by
Senators Coburn and Sessions................................... 849
SUBMISSIONS FOR THE RECORD
Asian American Justice Center, Washington, DC, letter............ 854
Comey, James B., McLean, Virginia, letter........................ 856
Congressional Asian Pacific American Caucus, Michael M. Honda,
Representative in Congress, Chair, Washington, DC, letter...... 857
Criminology and Criminal Justice Policy Coalition, Todd R. Clear,
American Society of Criminology, Columbus, Ohio, and Janice
Joseph, Academy of Criminal Justice Sciences, Greenbelt,
Maryland, joint letter......................................... 859
Fine, Janet E., Executive Director, Massachusetts Office for
Victim Assistance, Boston, Massachusetts, letter............... 861
Feld, Barry C., Centennial Professor of Law, University of
Minnesota, Minneapolis, Minnesota, letter...................... 863
Gillibrand, Kirsten E., a U.S. Senator from the State of New
York, letter................................................... 865
Giuliani, Rudolph W., New York, New York, letter................. 867
Gottfredson, Michael R., Executive Vice Chancellor & Provost,
University of California, Irvine, California, letter........... 868
Japanese American Citizens League, S. Floyd Mori, National
Executive Director, Washington, DC, letter..................... 870
Larivee, John J., Chief Executive Officer, Community Resources
for Justice, Boston, Massachusetts, letter..................... 872
Lauritsen Janet L., Professor, University of Missouri, St. Louis,
Missouri, letter............................................... 873
Martin, John S., Jr., Attorneys at Law, Martin & Obermaier, LLC,
New York, New York, letter..................................... 878
Mukasey, Michael B., Partner, Debevoise & Plimpton LLP, on behalf
of National Asian Pacific American Bar Association, New York,
New York, letter............................................... 880
National Asian Pacific American Bar Association, Andrew T. Hahn,
Sr., President, Tina R. Matsuoka, Executive Director, John C.
Yang, Co-Chair, Judiciary Committee, Wendy Wen Yun Chang, Co-
Chair, Judiciary Committee, Washington, DC, joint letter....... 881
National District Attorneys Association, Christopher D. Chiles,
President, Alexandria, Virginia, letter........................ 886
Petersilia, Joan, Adelbert H. Sweet Professor of Law, Co-
Director, Stanford Criminal Justice Center, Stanford,
California, letter............................................. 887
Rhine, Edward, Deputy Director, Ohio Department of Rehabilitation
and Correction, Columbus, Ohio, letter......................... 889
Sampson, Robert J., Chairman & Henry Ford II Professor of the
Social Sciences, Harvard University, Cambridge, Massachusetts,
letter......................................................... 891
Shaheen, Hon. Jeanne, a U.S. Senator from the State of New
Hampshire, statement........................................... 892
Wilson, James Q., Emeritus Professor, UCLA, Los Angeles,
California, letter............................................. 893
Wu, George C., Executive Director, OCA National Center,
Washington, DC, letter......................................... 895
WEDNESDAY, DECEMBER 1, 2009
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 975
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island, prepared statement..................................... 977
PRESENTERS
Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island
presenting O. Rogeriee Thompson, Nominee to be U.S. Circuit
Judge for the First Circuit.................................... 899
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island presenting O. Rogeriee Thompson, Nominee to be U.S.
Circuit Judge for the First Circuit............................ 897
STATEMENT OF THE NOMINEE
Thompson, O. Rogeriee, Nominee to be U.S. Circuit Court Judge for
the First Circuit.............................................. 901
Questionnaire................................................ 906
QUESTIONS AND ANSWERS
Responses of O. Rogeriee Thompson to questions submitted by
Senators Coburn and Sessions................................... 965
WEDNESDAY, DECEMBER 16, 2009
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 979
prepared statement........................................... 1129
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1134
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 981
PRESENTERS
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina, presenting James A. Wynn Jr., Nominee to be U.S.
Circuit Judge for the Fourth Circuit and Albert Diaz, Nominee
to be U.S. Circuit Judge for the Fourth Circuit................ 982
Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina,
presenting James A. Wynn Jr., Nominee to be U.S. Circuit Judge
for the Fourth Circuit and Albert Diaz, Nominee to be U.S.
Circuit Judge for the Fourth Circuit........................... 983
STATEMENT OF THE NOMINEES
Diaz, Albert, Nominee to be U.S. Circuit Judge for the Fourth
Circuit........................................................ 1035
Questionnaire................................................ 1036
Wynn, James A., Jr., Nominee to be U.S. Circuit Judge for the
Fourth Circuit................................................. 985
Questionnaire................................................ 987
QUESTIONS AND ANSWERS
Responses of Albert Diaz to questions submitted by Senators
Coburn, Grassley and Sessions.................................. 1098
Responses of James A. Wynn, Jr. to questions submitted by
Senators Coburn, Grassley and Sessions......................... 1106
SUBMISSIONS FOR THE RECORD
Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina,
prepared statement............................................. 1132
ALPHABETICAL LIST OF NOMINEES
Butler, Louis B., Jr., Nominee to be U.S. District Judge for the
Western District of Wisconsin.................................. 336
Carbon, Susan B., Nominee to be Director for the Violence Against
Women Office, Department of Justice............................ 632
Chin, Denny, Nominee to be U.S. Circuit Judge for the Second
Circuit........................................................ 666
Conley, William M., Nominee to be U.S. District Judge for the
Western District of Wisconsin.................................. 725
Diaz, Albert, Nominee to be U.S. Circuit Judge for the Fourth
Circuit........................................................ 1035
Espinel, Victoria Angelica, Nominee to be Intellectual Property
enforcement Coordinator, Executive Office of the President..... 336
Jackson, Ketanji Brown, Nominee to be a Member of the U.S.
Sentencing Commission.......................................... 74
Kallon, Abdul K., Nominee to be U.S. District Judge for the
Northern District of Alabama................................... 336
Keenan, Barbara Milano, Nominee to be U.S. Circuit Judge for the
Fourth Circuit................................................. 6
Laub, John H., Nominee to be Director for the National Institute
of Justice..................................................... 746
Peterson, Rosanna Malouf, Nominee to be U.S. District Judge for
the Eastern District of Washington............................. 794
Reiss, Christina, Nominee to be U.S. District Judge for the
district of Vermont............................................ 336
Robinson, Laurie, Nominee to be Assistant Attorney General for
the Office of Justice Programs, Department of Justice.......... 49
Stranch, Jane Branstetter, Nominee to be U.S. Circuit Judge for
the Sixth Circuit.............................................. 203
Thompson, O. Rogeriee, Nominee to be U.S. Circuit Judge for the
First Circuit.................................................. 901
Tucker, Benjamin B., Nominee to be Deputy Director for the State,
Local and Tribal Affairs Office of Drug Control Policy......... 204
Vanaskie, Thomas I., Nominee to be U.S. Court of Appeals for the
Third Circuit.................................................. 321
Wynn, James A., Jr., Nominee to be U.S. Circuit Judge for the
Fourth Circuit................................................. 985
NOMINATIONS OF BARBARA MILANO KEENAN, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT; LAURIE O. ROBINSON, NOMINEE TO BE THE ASSISTANT
ATTORNEY GENERAL FOR OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF
JUSTICE; AND, KETANJI BROWN JACKSON, NOMINEE TO BE A MEMBER OF THE U.S.
SENTENCING COMMISSION
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WEDNESDAY, OCTOBER 7, 2009
United States Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 4:03 p.m., Room
SD-226, The Capitol, Hon. Benjamin L. Cardin, presiding.
Present: Senators Cardin, Specter, Franken, and Sessions.
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.
Senator Sessions will be joining us shortly and he has asked
that we start the hearing. So let me welcome our guests that
are with us today.
It is an honor to have Judge Barbara Keenan here, who is a
nominee for the U.S. Circuit Court for the Fourth Circuit;
Laurie Robinson, for Assistant Attorney General for Office of
Justice Programs; and, Ketanji Brown Jackson, for a member of
the U.S. Sentencing Commission; and, of course, my two
colleagues from Virginia, Senator Webb and Senator Warner. It
is a pleasure to have both of you with us today.
I take particular interest in the Fourth Circuit. So I am
very pleased today that Senator Leahy has allowed me to chair
this hearing on the nomination of Barbara Keenan to the U.S.
Circuit Judge for the Fourth Circuit.
This will be the third hearing that I have chaired for
nominees in the Fourth Circuit. I had the opportunity to chair
the hearing for Justice Steven Agee, who was confirmed to be a
U.S. Circuit Judge for the Fourth Circuit from Virginia, and I
also chaired the confirmation hearings of Judge Andre Davis of
Maryland, who was approved by our Committee 16-3 and we are
awaiting full Senate confirmation of his appointment.
Unfortunately, that has been delayed several months. And I say
unfortunately, because the Fourth Circuit has the highest
vacancy rate of any circuit. One-third of the judges still
remain unfilled and that is unacceptable and we need to move
these appointments much more rapidly.
So I share Senator Leahy's concerns about the delay in the
completion of the confirmations of judges. We are backed up now
for many that have been recommended by this Committee and there
has been a delay by Republican Senators in allowing us to bring
forward those nominations on the floor of the U.S. Senate.
I hope that can be changed, because I think it is
critically important that we move as quickly as possible to
fill these vacancies.
In regards to the Fourth Circuit, we are pleased that
Justice Keenan's nomination has come forward. She has served on
each of the four levels of the Virginia State court, the
General District Court, the Circuit Court, the Court of Appeals
and Supreme Court. She was admitted to the State Bar of
Virginia in 1974, and she first took the bench at age 29 and it
is fitting that she has served as a judge for 29 years.
She has had a balanced career and she has presided over an
impressive number of cases. Now, that is a blessing and could
also be a concern, because you've had to make some tough
decisions, and there may well be some questions about some of
the decisions that you joined either in the majority or in
dissent because of the large number.
But you bring a wealth of experience and a great
reputation, well known to the people in Virginia, and we are
very pleased about your appointment and look forward to this
hearing.
Justice Keenan has received the unanimous rating of well
qualified from the American Bar Association Standing Committee
on the Federal Judiciary, which is the highest rating, and I do
look forward to our comments from our two Senators from
Virginia.
Our second nominee today is Laurie Robinson, to be the
Assistant Attorney General for the Office of Justice Programs.
These is a very important appointment, but, again, I want to
comment about Senator Leahy's points about so many of the
Assistant Attorneys General in the Department of Justice are
being held up from floor votes.
We, fortunately, just got the Assistant Attorney General
for the Civil Rights Division confirmed yesterday, after a
four-month delay and a cloture vote which was withdrawn at the
last minute.
These delays are not helping the Department of Justice
restore its rightful reputation and I hope that we can move
quickly on the Office of Justice Programs. We need leadership
in that department. That is very important.
And if you are confirmed, I might say, Ms. Robinson, you
will be hearing from all of us, because it is a very popular
position with our local officials to figure out how they are
going to get help in the administration of justice.
So I am glad that I am chairing this hearing. I hope you
will remember that in the future, that I chaired this Committee
when----
[Laughter.]
Senator Cardin.--when Maryland requests come forward. You
have an impressive resume. Since 2004, Ms. Robinson has been
the director of the master's of science program the University
of Pennsylvania's Department of Criminology. From 1993 to 2000,
she served as Assistant Attorney General at the Office of
Justice Programs.
You bring a great deal of experience to this position. You
have served on a number of national boards related to the
justice system, including the board of trustees at the
Institute of Justice, which you chair; the board of directors
of the Police Foundation, advisory board of George Mason
University, Administration of Justice Programs. You have
published numerous articles. So you bring a wealth of
experience to this position.
And I will put into the Committee record letters of support
for Ms. Robinson, including the U.S. Conference of Mayors,
National League of Cities, National Association of Counties,
and the International Association of Chiefs of Police.
Our third nominee today is Ketanji Brown Jackson. Ms.
Jackson has been nominated to be a member of the U.S.
Sentencing Commission. The commission is an independent agency
in the Judicial Branch of government. Its purpose is to
establish sentencing policies and practices for the Federal
court, including criminal sentencing guidelines, to advise and
assist Congress and the executive branch in developing crime
policy and to analyze and research criminal justice
information, a very important position.
Ms. Jackson is of counsel at Morrison & Foerster in
Washington, D.C., where she has worked since 2007. From 2005 to
2007, she was an assistant Federal public defender in the
District of Columbia.
I could go through the rest of her resume, but let me point
out, one of the most important parts of her resume, she is a
resident of Bethesda, Maryland, which is duly noted. Graduated
with a BA from Harvard University and a J.D. from Harvard Law
School.
Before I turn to the Ranking Republican member, Senator
Sessions, let me just thank all three of you for your
willingness to continue, in some cases, to start a new
challenge in public service for others. We thank you for this.
I know that it is not easy to serve in public positions. I know
it is difficult not only for you, but your families, and we
thank you for your willingness to serve your community.
And with that, let me turn it over to Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I look forward
to hearing from our Virginia Senators and our nominees, look
forward to asking some questions.
Thank you and, hopefully, these nominees will meet all the
tests and we can move them forward.
Senator Cardin. Thank you. With that, let me turn to
Senator Webb.
PRESENTATION OF BARBARA MILANO KEENAN, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT COURT OF APPEAL BY HON.
JIM WEBB, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senaor Webb. Thank you very much, Mr. Chairman and Ranking
Member Sessions. I am privileged to join my colleague from
Virginia, Senator Mark Warner, here today for the purpose of
introducing to this Committee Virginia Supreme Court Justice
Barbara M. Keenan, whom the President has nominated for a seat
on the Fourth Circuit Court of Appeals.
I would like to point out, also, that her husband, Judge
Alan Rosenblatt, is with us today, as are a number of friends
and family members that I know she will want to introduce.
I would like to thank the Committee for scheduling this
hearing. The seat on the fourth circuit that Justice Keenan
seeks to fill has been vacant since the death 2 years ago of
Judge Emory Widener of Abingdon. It is important to the people
of Virginia and to the proper functioning of this court that
this vacancy be filled as expeditiously as possible.
Mr. Chairman, I believe that the President has made an
extraordinary choice in nominating Justice Keenan. Earlier this
year, our two Senate offices interviewed more than two dozen
highly qualified candidates for this seat, including
distinguished law professors, judges, private practitioners and
government attorneys.
And from this very competitive field, Senator Warner and I
were drawn to Justice Keenan's record of achievement on the
bench, her keen intellect, her even-temperament, and, perhaps
most importantly, her abiding sense of fairness.
We recommended her to the President for a nomination in
June of this year. I should add that Justice Keenan is held in
the highest regard by members of the Commonwealth's legal
community, including the Virginia State Bar, which gave her a
highly qualified rating. Justice Keenan, as you mentioned, Mr.
Chairman, has a distinguished record of service to our courts
in Virginia.
She was appointed to the Fairfax County General District
Court in 1980 at the age of 29. She was promoted by the General
Assembly to the Fairfax County Circuit Court in 1982; to the
Intermediate Court of Appeals in 1985; and, finally, to the
Supreme Court in 1991.
She is active in numerous boards and commissions intended
to foster excellence in our judicial system. Justice Keenan is
a 1971 graduate of Cornell University, a 1974 graduate of the
George Washington University School of Law, and she also holds
an LLM from the University of Virginia School of Law.
I am very, very pleased to be before you today endorsing
her nomination. I would now like to invite my colleague,
Senator Warner, to offer his comments.
Senator Cardin. Senator Warner, pleased to hear from you.
PRESENTATION OF BARBARA MILANO KEENAN, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT COURT OF APPEAL BY HON.
MARK WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senaor Warner. Thank you, Mr. Chairman and Ranking Member
Sessions. I join my colleague and good friend, Jim Webb, in
wholeheartedly endorsing Justice Keenan for this very important
position. I think President Obama made a wise choice in
nominating Justice Keenan for this seat on the Fourth Circuit
Court of Appeals.
I will not reiterate all of the comments that Senator Webb
made about her background. I would simply add a couple of
additional comments.
Justice Keenan is the first judge in Virginia's judicial
history to serve on all four levels of our bench. As you
mentioned in your opening comments, that gives her a broad and
wide range of record, 29 years serving in the judiciary.
But I can say that in the process that Senator Webb and I
went through, it was a very rigorous process. We had a number
of good candidates. I know we have got folks here in the
audience, Mitchell Dolan and others, who helped us go through
that process.
But Justice Keenan had a remarkable array of people all
across Virginia, I believe many of them unsolicited, writing in
on her behalf; I would add, members of the legislature from
both sides of the aisle who complimented her judicial
temperament and her background.
She has got an enormously impressive academic record, I
would only add, and, clearly, the 29 years on the court, on all
four of our courts, has been important, as well.
I would only add, as well, I had the occasion to get to
know her a bit personally during my tenure as Governor. We
would have every year a dinner between the Governor and our
justices of the Supreme Court. With her kind of quiet
confidence, she was a leader on that court. She truly reflects,
I think, the right intellectual capabilities, the right
judicial temperament, and she will be a great addition to the
fourth circuit.
I would simply close in adding not only a note of
congratulations to Justice Keenan, but I would echo what
Senator Webb has said, that we do hope that this nomination
will be moved expeditiously.
As you well know, Mr. Chairman, the burden on the fourth
circuit at this point in terms of the number of open positions
and the amount of caseload that confronts that important
circuit is tremendous. This position, as Senator Webb has
mentioned, has been open for a couple of years right now.
So we commend her to the Committee's consideration and hope
that we will soon be able to address her as Judge Keenan of the
Fourth Circuit. Thank you very much.
Senator Cardin. Just to underscore that one point, there
are five vacancies on the fourth circuit. The second circuit
has four vacancies. The next are two vacancies. So we are
really in serious need of filling these spots.
Let me thank both of our colleagues. Thank you very much.
Senator Sessions. Let me just say, one of the things that I
think is healthy in this entire judicial nomination process is
that key Senators are involved and that your opinions are
sought. Some might think that that is unhealthy, but, really,
you know the lay of the land in your states and you know if
somebody has got problems, and your strong support is a factor
in my evaluation, for sure, of a nominee.
Thank you very much for your insight, appreciate it.
Senator Cardin. Which is the tradition of our Committee, we
will use two panels. The first panel will consist of Barbara
Keenan to be United States Circuit Judge for the Fourth
Circuit.
Judge, if you would come forward. The tradition of our
Committee also is to swear the witnesses in.
[Whereupon, the witness was duly sworn.]
Senator Cardin. Please have a seat. Your entire statement
will be made part of the record. What we do ask you to do,
first, if you would, is introduce the members of your family
that may be here and proceed as you wish.
STATEMENT OF HON. BARBARA MILANO KEENAN, NOMINATED TO BE U.S.
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
Judge Keenan. [Off microphone.]
Senator Cardin. Thank you very much. Let me start, if I
might, asking questions that have been ones that have been of
great interest to our Committee. That is, talk a little bit
about your philosophy as to the importance you place on
existing precedent, on the clear language of laws that are
passed by Congress.
I know that you have been a state court judge, but, if
confirmed, you are going to be called upon to make significant
rulings concerning Federal issues. In most of these cases, it
is going to be the final word. Very few cases, as you know, get
accepted to the Supreme Court.
I know this Committee wants to hear your judicial
philosophy as to the deference that you will give to laws that
are passed by the Congress and to the precedent of the court.
Judge Keenan. Yes, Senator. As an appeals court judge, if
confirmed, I will be most mindful of precedent. That is what
guides our legal system. It is our obligation as judges to
apply the law and, if at all possible, to apply the plain
meaning----
Senator Cardin. I am going to ask you, if you could, just
get the microphone a little closer to you.
Judge Keenan. I am sorry. I do not do this every day. I am
sorry, sir. I would be most mindful of precedent. It is what
guides me as a judge and has always guided me as a judge,
because our system of government is based on the certainty and
predictability of the law and this guides people in their
everyday affairs in order to determine what is lawful and what
is not.
So as a judge, I am required to examine the precedent,
examine the statutes, whenever possible, to apply the plain
meaning of the statutes and to realize that it is my role to
apply the law and to do it in a manner that gives full and fair
consideration to all of the arguments propounded by the
parties.
Senator Cardin. In 2000, you ruled in a Virginia human
rights case, expanding the ability of a person to bring a claim
for employment discrimination. I agree with your holding, but
it was contrary to the prior rulings, as I understand it.
I mention that because I do believe--one of my criteria for
determining who I support on confirmation to the Federal bench
is their passion and respect for the protections that are in
our Constitution and their willingness to understand the
evolution of the rights in this country.
But could you just go through for me and for the Committee
why you thought it was important to ignore precedent in that
case?
Judge Keenan. Well, sir, it was not ignoring precedent.
Really, the issue had come up as to whether a cause of action
for wrongful termination for employment would lie. Under common
law principles, when these principles were also principles
covered by the Virginia Human Rights Act, and the Virginia
General Assembly had, after the Virginia Human Rights Act had
been on the books for a few years, had amended the statute to
say that the statute did not create an independent cause of
action.
And so the question before our court was to determine
whether, if there was a cause of action under the common law,
could it nevertheless be made, notwithstanding the statutory
bar. And this was a question of first impression really in our
court and the majority of the court held yes in the opinion
that I wrote.
And the reason why is if we hadn't done that, then the fact
that there was a principle in the Human Rights Act, for
example, a principle supporting racial equality or gender,
antidiscrimination based on gender, would provide an employer a
shield. An employer could do anything he or she wanted as long
as it was the principle of equality espoused in the Virginia
Human Rights Act.
That could be used as a shield and that's the reason why we
felt that it was important to decide the case the way we did.
Senator Cardin. I am going to have some additional
questions on this point. But at this point, with the consent of
Senator Sessions, I am going to yield to Senator Specter for
the purposes of an introduction.
PRESENTATION OF LAURIE ROBINSON, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT BY ARLEN SPECTER, A U.S. SENATOR
FROM THE STATE OF PENNSYLVAINIA
Senator Specter. Well, thank you very much, Mr. Chairman. I
appreciate your yielding to me. I have come to the hearing for
the introduction of Ms. Laurie Robinson, who is nominated for
the position of Assistant Attorney General for the Office of
Justice Programs.
Ms. Robinson brings an extraordinary resume to this
important position. She is a magna cum laude, phi beta kappa
graduate from Brown University. She worked for 14 years as the
director of the American Bar Association's section on criminal
justice.
She served in the Clinton Administration as the Assistant
Attorney General for the Justice Department's Office of Justice
Programs, which is the position she has been nominated for now,
and, after that, served 8 years as a distinguished senior
scholar at the University of Pennsylvania in Criminology and
directed the University of Pennsylvania Criminology's master of
science program.
She has now been nominated for this very prestigious
position. Her background includes some 30 articles on criminal
justice and legal periodicals, 250 criminal justice-related
conference and forums, appeared before Congressional committees
some 15 times.
She has been a member of some very distinguished
professional organizations, served on the Board of Trustees of
the Vera Institute of Justice, which she chaired, the Police
Foundation, the National for Victims of Crime. So that is
really an extraordinary resume, having seen quite a few in my
tenure here.
I think this is a very important position, because too
little of scientific research has been devoted to trying to
deal with the criminal law problem. Early on, I came to the
conclusion that there was a very effective way to deal with
violent crime in America. It had two parts, life sentences for
career criminals who commit 70 percent of the crimes and
realistic rehabilitation for the others who are going to be
released back into society.
Last year, we passed the legislation on the Second Chance
Act, but we have had much too little insight into the ways of
job training, literacy training. No surprise when a functional
illiterate leaves jail without a trade or a school, they go
back to the revolving door on recidivism.
We have not really made the analysis of what it takes on
parole and probation to turn that around; never really made the
analysis of the effectiveness of the armed career criminal
bill, which provides for a mandatory sentence of life, which,
in the Federal system, is 15 years to life for three major
offenses.
So to see someone of her caliber in that position is very
refreshing, so refreshing that I came to introduce her, even
though she is not a Pennsylvanian.
[Laughter.]
Senator Specter. Thank you very much, Mr. Chairman.
Senator Cardin. As I noted in my comments about her, we are
all--as soon as she gets confirmed--all interested in how she
is going to treat grants from our states. So we figured perhaps
you had some interest because of that, also.
Senator Specter. Well, Mr. Chairman, had I known that, I
would not have taken up the extra time of the Committee. Thank
you.
Senator Cardin. Thank you. Senator Sessions.
Senator Sessions. Well, I would associate myself with the
remarks about Laurie Robinson. She has had fabulous service in
her previous tenure; although maybe not every theory of Senator
Specter's theory of crime would I totally endorse, but most of
that I would endorse, too.
You had not finished, I believe. You go ahead. [Off
microphone.]
Senator Cardin. Well, let me wait until the next round. I
will let you proceed, because I want to go into a couple of
different areas. So I will hold for a second round.
Senator Sessions. Mr. Chairman, Chairman Leahy and others,
I would like to start a preemptive complaint about failure to
move judges. We have really not had a problem yet, in my view.
There are two or three that are controversial. But I would note
that there are 74 vacancies as of October 7 and the President
has nominated nine for the district court bench.
So we cannot confirm people for vacancies if they do not
have a nomination and when a nominee is made, then the staffs
review their backgrounds and their FBI reports and share that
with the Senators. If there is any problem, they are looked at.
Usually, prominent lawyers and people are checked on. We get
the ABA report. Cases appear sometimes that cause people
concern and they are inquired into.
But I am committed to moving the good nominees rapidly
forward. It does not bother me that a nominee is a Democrat or
has been elected as a Democrat or been active politically. That
does not bother me. We just like to see nominees that know when
they put on the robe, something special occurs and that they
are no longer in the political arena, they are in the
adjudication arena, and objectivity and fairness to all parties
is what is called for.
A few of the nominees that are nominated now and that are
pending probably are going to be a bit controversial, but I
would expect the overwhelming number of these nominees to move
forward. And some of those that are not controversial now, for
reasons I do not know, I understand, are not being called up
for vote, and they would be promptly confirmed if the majority
leader called them up.
Justice Keenan, it is great to have you. You have a
background certainly worthy of this position and it is good to
see your Senators are firmly in support of your nomination and
we are proud of that.
I would just ask a few questions. I do not mean to suggest
that I think that you have failed in some serious way, but I
would just like to ask some questions about some matters.
At a commencement at William and Mary Law School in 1998,
you stated that lawyers have made contributions to the progress
of social justice. The contributions that we each make to the
cause of social justice will be our true legacy as lawyers. I
think I agree with that most totally, but I want to ask whether
you meant that your role as a judge--you said lawyers, you did
not say judges--that it is your duty as a judge to seek,
affirmatively, I guess, to promote social justice.
Now, the reason that is significant, of course, is whose
opinion of social justice and to what extent do you believe a
judge should be thinking of policy matters as they render their
opinions in difficult cases?
Did I ask that clearly? Not very clearly.
Judge Keenan. No. You did. Thank you, Senator.
Senator Sessions. If I were before the bench, you would
probably ask me to clarify the question.
Judge Keenan. Not at all. I was--when I made that speech, I
was talking to young lawyers beginning to enter the legal
profession and in coining the--or in using the term ``social
justice,'' I was referring to lawyers' duty to work within the
system of laws to protect people, to protect society, and to
make strides for the general good of all.
A judge's role is very different, however. A judge is not
an advocate and never can be. A judge is not an activist. A
judge is somebody who comes with an open mind to listen to the
arguments put forth, consults precedent, examines the law,
makes a determination based on what the parties have advanced,
whether there is any merit to the position, and then writes,
very clearly and precisely, if the judge's goal is met, to
apply the precedent that exists in a given situation.
And so a judge's role is very different from that of a
young lawyer.
Senator Sessions. Well, I think that you are right. I think
there is a difference. And I do think lawyers have
responsibility to, if they think injustice is occurring and a
party is not able to always pay full fee, that they should be
prepared on occasion to step up and serve the higher good. You
make a valid point there and I think with regard to a judge,
objectivity, as you stated, is important.
I think one of the biggest difficulties we face in the
legal system is confusion over the establishment clause. We
just had a marvelous ceremony, I was so proud to be there, to
replace one of the statutes that Alabama had in Statuary Hall
with a statue of Helen Keller, who perhaps did more than any
single person in history to help the disabled.
It began with a prayer delivered by the chaplain of the
House of Representatives and it concluded with a prayer by the
chaplain of the U.S. Senate. So at any rate, I think the
Supreme Court has failed to clarify what it is that is OK and
what is not OK or what is permissible and not.
In Virginia College Building Authority v. Lynn, the
Virginia Supreme Court considered that Regent University, a
sectarian private school in Virginia, could participate in a
state-run bond program. I guess it was a bond program that
colleges and universities, private and public, could
participate in.
You joined another justice's dissent that would have held
that the university, since the university provided ``religious
training or theological education,'' closed quote, in violation
of the Virginia Constitution and state statute, it would be a
violation of Virginia Constitution and state statute to allow
them to participate in that program, even though the university
taught secular subjects, also.
Although your opinion did not directly address whether it
would violate the establishment clause to allow Regent to
participate in a bond program, I am concerned about your view
on the separation of church and state issues.
At the time you decided this case, did other religious
schools in Virginia, for example, private or parochial schools,
participate in the program and if so, what made Regent
different from those schools?
Judge Keenan. Well, as I recall, Senator, that bond issue
came in the context of the proposed Regent campus that was
going to be for a divinity program. So that while Regent had
other nonsectarian programs, such as business and law, that the
bond funding was going to be used directly for that school of
divinity, and that's what made a difference, in my mind, in the
analysis that was applied.
We did not have an establishment clause argument. It was
simply whether there was that sectarian--whether there was that
overlap in terms of the bond funding and the religious purpose
of the construction that was proposed.
Senator Sessions. Well, I would acknowledge that we have
got quite a body of law that is pretty amorphous about how to
decide these issues. But the Constitution prohibits
establishment of a religion, but it guarantees the right to
free exercise of religion. Presumably, being a minister of a
religious faith is not in itself a bad thing.
Therefore, I am going to--I will just ask you to perhaps
see if you can explain why it is that you would care whether
they wanted to study to be a minister.
Judge Keenan. I think it was great that they wanted to
study to be a minister, I mean, certainly, but----
Senator Sessions. Well, why would that disqualify--why is
that profession different than being a consiglieri for the
mafia? They could get money if you were going to----
Judge Keenan. Well, the issue, though, was the bond funding
and whether the bonds were being used for a religious purpose
and under our law, the bonds could not be used for a religious
purpose, and that was----
Senator Sessions. Was that the State Constitution or State
statute; do you recall?
Judge Keenan. I believe it was brought under the--there was
a constitutional challenge and I don't recall any particular
statute, I have to say, because----
Senator Sessions. The State's Constitution or Federal?
Judge Keenan. I believe it was State. But because of the
passage of time, sir, I could stand corrected.
Senator Sessions. Well, there are difficult issues. It just
seems to me that we all exercise, if somebody wants to
undertake a religious career and actually counsel people on
their marriages and go through their funerals with the families
and help raise their children and good and healthy values,
somehow that becomes unconstitutional and that other goals are
not.
Thank you, Mr. Chairman.
Senator Cardin. Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Welcome, Justice
Keenan. That is proper, right?
Judge Keenan. Thank you.
Senator Franken. I would like to welcome your family, as
well. And I agree that mafia consiglieri schools should not get
funding.
[Laughter.]
Senator Sessions. Well, they would be able to go to New
York demand it and get it.
Senator Franken. Well, OK. We cannot even agree on that.
This morning, we had a hearing called Workplace Fairness: Has
the Supreme Court Been Misinterpreting Laws Designed to Protect
American Workers from Discrimination, and Jack Gross, who was
one of the witnesses, testified from the Gross v. FBL Financial
Services case.
I am interested to learn more about your rulings in
discrimination cases. In Shaw v. Titan Corp., you ruled that a
plaintiff is not required to prove that his or her employer's
discriminatory motive was the sole cause of termination.
Now, in Gross, the Supreme Court recently ruled on this
very question and they determined that lawsuits under the Age
Discrimination in Employment Act, that in lawsuits under that,
that the plaintiff must show that age was the determinative
factor in the termination.
I found this to be troubling and sort of thought of it as
judicial activism. Can you tell me your reasoning in deciding
the Shaw case, what led to your decision, and what you think of
the Supreme Court's decision on Gross, which, of course, you
would certainly abide by the precedence of that, since this is
for the fourth circuit?
Judge Keenan. Thank you, sir. First of all, of course, the
United States Supreme Court precedent binds us all.
Senator Franken. Right.
Judge Keenan. And the statute that they interpreted, that
issue is settled and beyond dispute. The Shaw case came up in
the context of a wrongful termination of employment. It was, as
I recall, a common law claim and the question was was the
plaintiff, as you say, required to prove that the employer's
sole motive was the discriminatory motive.
And our court unanimously determined that the plaintiff was
not so required and the reason for that was that in these
situations, there are often after-the-fact reasons given. There
are a myriad of reasons that come to the fore and we felt that
this was an issue for the trier of fact. This is something for
the jury to sort out.
Was this a reason why this person was fired as opposed to
was it the only reason why this person was fired? There could
be many justifications for firing, many gradations, perhaps the
most serious being the discriminatory act of the employer and
there being some subsidiary considerations that were really
quite minimal in comparison. And so the trier of fact could
make that determination.
Senator Franken. Is the burden on the plaintiff in that
case to show that the preponderance of the cause of being fired
was a discriminatory motive?
Judge Keenan. No. That by the preponderance--under the Shaw
ruling, it would be that by a preponderance of the evidence, my
employer fired me for a discriminatory reason. And then the
employer could, by defense, come back and say, ``Wait a minute.
This was very, very minimal in our determination. This employee
didn't show up for work on time. This employee was disloyal,
leaked information to a competitor,'' and all sorts of a host
of reasons that would be available to an employer for a
defense.
Senator Franken. Right. But you felt that--I mean, what you
ruled was it does not have to be the sole reason, the
discrimination.
Judge Keenan. That's right. Yes, sir.
Senator Franken. Thank you. Thank you, and welcome to your
family again.
Judge Keenan. Thank you, sir.
Senator Cardin. Justice Keenan, let me just comment on one
of your roles I found important and that is the removal of a
district court judge, which is something that is rather
unpleasant. No one likes to be involved in that.
But I want to give you an opportunity to talk a little bit
about how important judicial ethics is in your life as a judge
and, if you are confirmed to the Federal bench, how you see
your role as far as ethics is concerned.
Judge Keenan. Yes, Senator Cardin. I think that judges
serve a very important role in terms of in their communities,
in terms of always standing for the highest ethical principles.
The case to which you allude was a very difficult case for
our court. A judge, as you're aware, actually had--a woman was
claiming that she was injured or attacked by her husband and
the judge made a very, very poor decision in terms of asking
the woman to lower her pants in the courtroom to display her
wound.
And although this was a restricted hearing, because it was
a domestic relations court, there were still several members to
whom this woman was not related who saw her exposed body. As a
court reviewing this, we took the matter very seriously,
because we considered, in terms of the community, what would it
say if we sent that judge back to the community having done
this, having, from my perspective, ignored the dignity of the
individual who was before the court.
This woman was coming before the court with a complaint.
She was seeking the aid of the court and, in our view, she was
degraded--she was degraded by that judge. We felt that it would
be a very, very unwise course to return that judge to the bench
in view of the extreme nature of his conduct and misjudgment.
Senator Cardin. Well, thank you for that answer. It is a
tough decision to remove a colleague and it was the right
decision.
The oath that you will take if confirmed includes the
provision of doing justice regardless of wealth, specifically
mentioning the poor. I personally believe the legal community
has a specific responsibility as it relates to providing access
to justice to those who otherwise could not afford it,
including pro bono work.
I want to hear what you have done during your career in
regards to meeting this obligation of pro bono and how you see
your role as a judge in furthering access to those who
otherwise would not have access to our legal system.
Judge Keenan. Thank you, Senator. I think the judge is a
very important role model in terms of the legal community, in
encouraging lawyers to perform pro bono work.
As an attorney, I regularly accepted reduced fee civil
cases from the Fairfax Bar Association. I accepted criminal
court appointed cases and I worked on many bar committees and
did volunteer work for several years when I practiced as an
attorney.
And then when I became a judge, I felt it was very
important to continue this work and I did it at different--in
very different aspects of the community. In one case, I worked
as a volunteer mentor for a year in an elementary school, where
once a week I met with a student and she and I went over her
homework, talked about the law. I tried to give her hope for
the future.
She lived with, I think it was, six siblings in a one-
bedroom apartment with her mother and her grandmother, and it
was a one-on-one relationship to try to give this young girl
some hope.
I've worked in much larger group programs with the YMCA to
encourage young students with regard to careers in the law, to
excite them and interest them. I love speaking in public
schools. I have done that quite a bit. My favorite grades are
four, five and six, because the kids are still lacking in
cynicism and they just love to learn everything they can.
I am now currently working on a judicial wellness
initiative with the Supreme Court of Virginia and that is
something I regard as very, very important to our state, and
that is to help judges and their families who are having
substance abuse problems. They also could be having bereavement
problems, problems involving depression, problems that a judge
normally can't get help for in a community because of the
judge's leadership role.
So I have devoted a big part of my career to pro bono work.
With regard to the second part of your question, the
courtroom and the court process and what we do for litigants, I
think a court has to be zealous in making sure that litigants
have all of the rights that they're entitled to.
In other words, if a defendant is asking for an attorney,
as a trial judge, I always made sure that defendant got the
attorney. When the defendant was making a motion under Ake v.
Oklahoma for an investigator or whatever, I, of course, wanted
to make sure that his or her plea was fully and fairly heard.
A judge has a boundary, though, that the judge cannot step
over. I cannot subjectively cross over and actively try to
rebalance the scales because I think somebody may have fewer
resources in the legal system. I will zealously ensure that
they get everything that is available and that they're entitled
to, but I don't believe it's my role to, as I said, attempt to
rebalance the scales, because then I become a player in the
process rather than a neutral evaluator of the case before me.
Senator Cardin. And I do believe that there have been some
court decisions on that, as well, defining that role the way
you just stated. So I agree with that.
In normal times, it is difficult for poor people to get
access to our civil system. In a recession, it is that much
more difficult. Our highest court in Maryland has passed rules
underscoring the responsibilities of every member of the bar to
participate in pro bono activities and having mandatory
reporting as to what our lawyers are doing in regards to
meeting that obligation.
I do not know whether the Supreme Court of Virginia has
taken any similar steps or not. I do know that the different
circuits do talk about these issues. I just want to get your
interest and using your position appropriately in the
leadership of the judiciary to advance what I hope you agree
with me is a responsibility that all lawyers have to
participate in pro bono and to help particularly in tough
economic times.
Judge Keenan. I certainly agree, Senator, that there is a
great need, there is an enormous need out there, and I think
that a judge--all judges should encourage lawyers to engage in
this kind of work.
And it doesn't mean that a lawyer has to do one type of pro
bono work over another. There is a myriad of options available
to attorneys so that they can find what suits them best, suits
their interests and their personal beliefs.
And I don't think that a judge should advocate for any one
particular program over another, but a judge should urge
lawyers to give of themselves and to give back to the community
that's really given them a lot.
And so that's something I've done throughout my career and
that's something I would anticipate, if confirmed, that I would
take pleasure in doing on the Federal appeals bench.
Senator Cardin. Thank you for that answer. Senator
Sessions.
Senator Sessions. Thank you. Judge Keenan, I guess you know
fairly closely what you get paid. Are you willing to serve at
that salary?
[Laughter.]
Judge Keenan. Yes, sir.
Senator Sessions. I asked John Roberts that, Chief Justice
Roberts, he took a little longer to answer it and he has since
asked for more.
[Laughter.]
Senator Sessions. But with the deficit we are facing, I do
not think we are likely to see any huge increases. And
everybody would like to be paid more, but this country is in
serious financial condition.
Tell me about, just briefly, on your caseload, how would
you estimate the caseload of the fourth circuit to be compared
to your caseload on the Supreme Court that you serve now.
I know we have a shortage of judges, probably more in the
fourth circuit than any other circuit. Some of that is due to
objections from Senators from the fourth circuit to President
Bush's nominees, rightly or wrongly, but some of them did not
get confirmed. I will just say it that way.
But how do you feel about that? We just had a hearing last
week, I guess, in which Judge Tjoflat of the eleventh circuit,
I think, has the highest caseload in the country, believed that
they should not add more judges because the circuit becomes
more unwieldy, and some of the other circuits were requesting
judges when they had substantially less.
So I guess, at any rate, do you feel a responsibility to
manage cases and how do you compare the level you expect to see
in the Federal court as compared to what you had to do on the
Supreme Court?
Judge Keenan. Well, I think that the biggest difference
probably is the Supreme Court of Virginia, most cases do not
have appeals of right. They proceed o a petition for appeal,
and in the Federal court, there is the right of appeal. And so
that certainly admits of the possibility of a lot more cases.
In Virginia, we handle, I think, about 3,000 cases a year
in our Supreme Court and we work very hard and----
Senator Sessions. You write opinions on how many?
Judge Keenan. No. We write opinions not on that many, no.
We issue orders in many cases. This is an estimate, but we
issue somewhere around 250 opinions, I think, a year.
I believe that the--and, see, with regard to the fourth
circuit, I'm not familiar with their internal statistics, but
they do issue a number of opinions and then some of them
nonpublished, some of them published.
So I'm not really familiar with the numbers, but I do sense
that I'm going from one pretty demanding job to another and I
have to say I'm looking forward to the challenge. I like to
work.
Senator Sessions. Well, you have got a record that has won
the respect of quite a lot of people and that is something you
can be proud of and I know you are pleased to have the honor of
this nomination.
We will maybe submit a few more questions to you, but I
appreciate the opportunity to meet you and talk with you today.
Judge Keenan. Thank you, sir.
Senator Cardin. Thank you, Senator Sessions. Let me point
out, the record will remain open for questions by members of
the Committee. I would urge all the nominees to try to get
those responses back as quickly as possible and as thoroughly
as possible. It will expedite the ability of the Committee to
move the matter forward. So we would just urge you to give that
your prompt and complete attention.
Judge, thank you very much, appreciate it.
Judge Keenan. Thank you, sir. Thank you, Senator.
[The biographical Information of Barbara Milano Keenan
follows.]
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Senator Cardin. The next panel will consist of Laurie
Robinson to be Assistant Attorney General for the Office of
Justice Programs, United States Department of Justice; and,
Ketanji Brown Jackson to be a member of the United States
Sentencing Commission.
I am going to ask you if you would just remain standing and
raise your right hand for the oath.
[Whereupon, the witnesses were duly sworn.]
Senator Cardin. Thank you very much. Before we start the
testimony, without objection, I am going to put in the record,
on behalf of Ms. Robinson, a letter from the Baltimore Police
Department, the police commissioner, in support of the
nomination; from Ike Leggett, the county exec from Montgomery
County, the director of the Department of Correction and Rehab
in support of Ms. Robinson's nomination; and, the statement
from Hon. Paul Ryan, a Member of Congress from Wisconsin, in
support of Ms. Jackson's nomination to the Sentencing
Commission.
[The information referred to appears as a submission for
the record.]
Senator Cardin. Ms. Robinson, you may begin.
STATEMENT OF LAURIE ROBINSON, NOMINATED TO BE ASSISTANT
ATTORNEY GENERAL FOR THE OFFICE OF JUSTICE PROGRAMS, U.S.
DEPARTMENT OF JUSTICE
Ms. Robinson. Thank you, Senator. If I could introduce my
family, I would like to introduce my husband, Sheldon Krantz,
if you could stand; my son, Ted Baab; my sister, Ann Kay; and
her husband, Jeffrey Kay.
And I thank you, Senator, and, certainly, Senator Sessions,
whom I've known for many years. I'm very pleased to be here,
very honored to have been nominated by the administration for
this position. I'm very happy to answer your questions,
Senator.
[The biographical information of Ms. Robinson follows.]
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Senator Cardin. Thank you. Ms. Jackson.
STATEMENT OF KETANJI BROWN JACKSON, NOMINEE TO BE A MEMBER OF
THE U.S. SENTENCING BOARD
Ms. Jackson. Yes, sir. Senator, thank you very much for
this opportunity to appear before the Committee today. I
appreciate it. And I would like to start by thanking the
President for nominating me to this position. I'd also like to
thank the Chairman of the Committee and the Ranking Member,
Senator Sessions.
I also appreciate the opportunity to introduce my family,
beginning with my husband, Dr. Patrick Jackson, who is my
support system for 13 years and a wonderful father to our two
young daughters, who could not be here today, but are hopefully
hard at work doing their homework right now.
I would also like to introduce my parents, Johnny and
Ellery Brown, who have come here from Miami, Florida, to
support me. My parents-in-law, Gardner and Pamela Jackson, who
have come here from Boston, Massachusetts. My brother, Second
Lieutenant Ketajh Brown, who is a member of the Maryland Army
National Guard, who served in Iraq and who graduated from
officer candidate school 2 weeks ago; his supportive
girlfriend, Olga Butler; and, my wonderful brother-in-law and
sister-in-law, Dana and William Jackson.
Other than that, Mr. Chairman, I don't have a statement,
but I would like to say that if I am fortunate enough to be
confirmed, I look forward to working again with the excellent
staff at the Sentencing Commission. And I'm happy to take any
questions that you might have.
[The biographical information of Ketanji Brown Jackson
follows.]
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Senator Cardin. Well, thank you and we appreciate both of
you introducing your families. It is a pleasure to have you all
here in our Committee.
Ms. Robinson, if I just could begin with you. If you could
just share with us, what would be your priorities, if confirmed
to this position? How do you see the Office of Juvenile Justice
and Delinquency Prevention, a very important part of local
governments?
Give us a little idea about some of the priorities that you
would look at within your portfolio of responsibilities,
whether you think there is a need to change the way the
priority decisions are made. How do you intend to work with the
Judiciary Committee in carrying out that responsibility?
Ms. Robinson. Certainly, I'd be happy to. And, Senator, if
I could first say, also, that I overlooked one of my family
members, because I didn't know he was coming. I'd also like to
introduce my brother, Peter Overby, who is seated over at the
press table, because he's a member of the press. And he didn't
tell me he was going to be coming.
Senator, if I'm lucky enough to be confirmed, I would want
to emphasize these priorities: One of the key areas that OJP
works in, of course, is partnership with the field. So I would
say I'd give strong importance to strategic partnerships with
state, local and tribal officials in working to reduce crime
across the country.
Of course, this is a key area in which OJP has always
worked, but I think there is much more that can be done to
strengthen the way in which OJP--and you mentioned OJJDP, and
that's a key part of this, particularly with the very difficult
problems of youth violence that have so recently been
highlighted just in the last few days--ways in which we can
make sure that officials around the country can access the
resources available through OJP and OJJDP.
In a second area, I want to make sure that what we're doing
at OJP is based on what we know from science. I know that
Senator Specter mentioned that, and this is an area that
Senator Sessions and I have discussed in the past.
Is what we're doing based on the best evidence? We
shouldn't be spending taxpayer dollars unless we know that it's
on areas that really work. So that would be a second area of
priority.
A third area of priority would be to ensure, working
closely with the Inspector General, that we're ensuring that
we're good stewards of Federal taxpayer dollars and guarding
against abuse and fraud with those dollars.
Senator Cardin. Well, the juvenile justice issues are
really important. We are struggling with that in this
Committee. We have had some legislation that we are
considering.
If I had to pick the two areas we probably spend the most
time, it would probably be juvenile justice and the drug
issues, dealing with recidivism, dealing with drug treatment,
dealing with how we handle the drug issues.
So you are going to get a lot of requests in both of these
areas. For example, drug courts.
Ms. Robinson. Yes.
Senator Cardin. Give me your thoughts as to how you would
encourage, and I hope you would do this, a larger interest
among the local governments so that we can have better choices?
I mean, the more interest you have, the more closely you can
work with the local agencies, the better pool of requests we
are going to have, the better programs we get, the best
practices we all learn from each other's states.
Drug courts are working well in some states. Other states
need help. How do you see your role in trying to bring this
together?
Ms. Robinson. Senator, I think one way that OJP can do that
better, if I am confirmed, I would want to set up what I call a
``what works clearinghouse.'' I think OJP has not, in the past,
done a good enough job in distilling information about the
innovative programs out there that really are working well.
Have we really distilled the information from research on
how well drug courts are reducing recidivism and reducing drug
use? Let's help people, let's say, in Des Moines find out how
the drug court in Denver is working well--or the one in
Philadelphia--and show people over in Pittsburgh, just as
examples.
I think if they can see how their peers around the country
are using this in an effective way, not necessarily just a
Federal agency telling them, but their peers in another
jurisdiction, then that's a good selling point.
And if they can see the percentage reductions in
recidivism, that's a selling point to their own city councils
when Federal funding may run out.
Senator Cardin. And you have a large workforce that is part
of the office. Some are represented by AFSCME. Can you tell me
how you would plan to work with the workers and their
representatives in order to have unity for the purpose of the
goal of the agency?
Ms. Robinson. Yes, Senator. When I was at OJP back in the
1990's, I had a very good working relationship with the union.
I met regularly with the president of the union then, who was
Stu Smith. We didn't always agree on every issue, but it was
very good communication. And if I am confirmed, I would plan to
have that same kind of regular communication and working
relationship.
I believe very strongly in a fair workplace and ensuring
that our managers and our supervisors at OJP are people who are
fair in the way that they go about managing the workplace and
that they have the training to ensure that they're good
managers.
Senator Cardin. Thank you. Ms. Jackson, I want to talk a
little bit about sentencing with you. There is one issue that
has been of foremost interest in this Committee, and that is
disparity between crack and powder cocaine.
Now, these are statutes. So the sentence disparity needs to
be corrected by Congress, I understand that. But the Sentencing
Commission needs to take a look at that and is taking a look at
it.
How do you see your role on the Sentencing Commission
dealing with disparities in our system that are impossible to
justify?
Ms. Jackson. Well, Senator, thank you for your question. If
I am fortunate enough to be confirmed, I believe that my role,
along with the other commissioners, would be to look at the
research, to look at the data, to consider the statistics and
determine whether or not the disparities that are reflected in
the data have some justification in the purposes of sentencing.
That's part of the role of the commission in setting
Federal sentencing policy and it's certainly something that I
know that at least with respect to crack and--the crack-powder
disparity, the commission has looked at and was very forward
thinking about addressing that particular disparity.
Senator Cardin. And I do hope that our Committee will be
able to deal with that issue. There is a lot of work being done
by many members of our Committee to try to bring us together on
that issue.
Do you have a view in regards to the Supreme Court decision
in 2005, the Booker case, which held that the guidelines are
not mandatory?
Ms. Jackson. Well, it's a complicated decision, as you
know, that has different aspects to it. I believe that at the
end of the day, the remedial half of the opinion was the
correct outcome given the constitutional holding.
And the guidelines, as you say, are now advisory and I do
think that, as a result, there is additional statistical data
that the commission can collect about what judges are actually
doing in these cases where they now have the opportunity to
sentence outside of the guidelines under the statute directly.
Senator Cardin. Senator Webb has introduced legislation for
us to take a look at the criminal justice system and our
sentencing and penal issues. If that legislation is successful,
your commission will have an important role in helping that
study go forward.
Can you just share with me your thoughts as to Senator
Webb's request that we take a more comprehensive look at our
sentencing and penal policies in America?
Ms. Jackson. Well, Senator Webb's proposal I have not
studied in detail, but it certainly is a part of a national
dialog that's going on right now with regard to Federal
sentencing. And I believe that to the extent that his
commission and working group is able to come up with proposals
as to how to address sentencing, then that would certainly be
welcome in the overall debate about what needs to be done now.
Senator Cardin. Thank you very much. Senator Sessions.
Senator Sessions. Sentencing is such a big deal. You have
got a 98 percent conviction rate. The real question in most
cases is how much time will a person serve.
I am absolutely convinced, from my experience, that the
fact that we have a lot of people in jail for fairly long
periods of time has been a factor in--the predominant factor,
in my view, in that decline in crime. Murder rates in a lot of
areas are half what they were. Crime in general is down.
I became a United States Attorney in the early 1980s and
people were terrified over crime. It is not as intense today
and we have done some things right. But nobody should serve
longer in the slammer than makes sense.
That is why I have supported substantial reductions in the
crack cocaine penalties and I am working with a number of
people to see if we can reach an accord. I have been supporting
that for 6 years and never have gotten anything passed yet,
maybe more than 6 years.
I am a little worried about where we are heading with the
sentencing guidelines. Essentially, we need not go back to the
situation in which two defendants are in the courthouse and one
is down the hall before Judge X and one before Judge Y and they
get five times the sentence for the same offense.
So the guidelines--Booker has opened up some real
challenges for us and I hope that you will work on that.
Ms. Robinson, I really appreciated your talking about
science, because what kind of defendants repeat and which ones,
if you release, are likely to go back and commit serious crimes
again are big factors. I support the drug courts. Senator
Cardin, I really do. I think they work pretty well, but they
are done quite differently in different cities.
I guess I really liked your answer to say, ``Well, which
one is working best? '' And should we not be able to advise a
community who is going to establish a drug court, especially if
they are going to get a Federal grant, to ask them whether--are
they going to comply with the best data we have out there on
how to conduct that drug court.
Do you agree that we can do a better job of that, Ms.
Robinson?
Ms. Robinson. Yes, Senator, I very much do. And I think a
key part of what the Federal Government does best with these
kinds of grants is provide technical assistance with them,
which goes directly to your point.
And one of the key things about technical assistance is
that the best way to provide it is to not have it be conducted
by Federal employees from Washington, but have it conducted by
people who are professionals from jurisdictions out in America
who are doing this kind of work.
So we arrange it from an agency in Washington, but it's
actually conducted out in the field by professionals, again,
from one jurisdiction, maybe from Denver, going over to Des
Moines or wherever.
Senator Sessions. I think that is a good idea and I would
support that. I remember, and I have shared this story with
you, Mr. Chairman, but Fred Thompson was elected to this body
before I was. He chaired the Subcommittee on Juvenile Crime. At
the time, there was a big emphasis on what to do about juvenile
crime.
He said the only thing he was sure of when I took over that
Subcommittee was that we did not know enough about why
juveniles commit crime and if the Federal Government wanted to
do something worthwhile, we would do some really aggressive
studies into that, because 99.99 percent of juvenile cases are
tried in state courts, not Federal courts. I always thought
that was pretty commonsensical.
Do you think we know enough about juvenile crime, its
causes, the recidivism possibilities? Do we provide enough data
and information for individual juvenile judges and probation
officers and juvenile prison systems around the country?
Ms. Robinson. No, Senator, I do not. I think we have----
Senator Sessions. You were there for 8 years.
Ms. Robinson. Seven years.
Senator Sessions. Seven years. What can we do to learn more
about it?
Ms. Robinson. Well, I think we know some things, but we
need to know much more. There is very little research money
actually appropriated by Congress to look into these things.
There's a lot of----
Senator Sessions. A lot of the money that goes to Office of
Justice Programs, which you administer, are earmarked or
directed to things other than research and development?
Ms. Robinson. That's correct. Most of it goes into
programmatic money, which is very important, but a very small
percentage goes to research.
Senator Sessions. Now, you say programmatic. Is that money
that goes to state and local jurisdictions mostly?
Ms. Robinson. Correct.
Senator Sessions. To help them start a drug court or run
one.
Ms. Robinson. Yes.
Senator Sessions. Or a juvenile program.
Ms. Robinson. Or for the Byrne grants, for example, for law
enforcement task forces and those kinds of things.
Senator Sessions. So tell us, be honest with you, at the
time of our budget, if we had to choose, it seems to me we
would do better to investigate rigorously some of the programs
that are being tried all over America and see if we cannot help
give good advice, even if we had to reduce some of the grant
money or program money.
Ms. Robinson. The fact is that even a doubling or a
tripling of the research funding would make a tremendous
difference, because it's not a tremendous amount of money. But
even putting $20 million more or $10 million more into research
could create a great deal more knowledge about these issues and
really inform the spending of the program dollars.
Senator Sessions. I also appreciate your willingness to
examine, Mr. Chairman, the operation and structure of Office of
Justice Programs. It has been cobbled together by this
legislation, gets passed and we are all proud of it, and we get
a director in charge of it, director in charge of this one, and
they have interest groups and everything, and then, at some
point, you say it is time to run this thing more streamlined
and we can be more efficient and be more productive, usually
somebody hollers and objects and it is difficult to get
anything done.
But I hope that you would continue your willingness to
examine how to, as you just said, make sure we get the best use
of the taxpayers' money. Will you do that for us?
Ms. Robinson. I would be happy to continue those
discussions with the Committee, of course.
Senator Sessions. I know you had some good ideas on how we
could improve the structure of that when you were part of the
Clinton Administration and afterwards, too, you have testified
here before our Committee on that.
So, Mr. Chairman, I think we have one of the best nominees
of the Clinton Administration. I think you did a great job and
managed well and worked hard and were focused on doing the
right things and I think it gives us an opportunity, as the
Committee, to listen to your advice and suggestions and see if
we cannot help you do your job better, because as this system
ha developed over the years, it is not as productive, I think,
as it should be. Thank you.
Senator Cardin. Senator Sessions, let me agree with you.
Your timing is perfect, because the budget is on the floor as
we speak, being managed by my colleague from Maryland, Senator
Mikulski and Senator Shelby. You are correct. We generally get
involved with that as we put another little wrinkle into the
program rather than looking at the overall effect.
I am very encouraged by Ms. Robinson's responses, because
the purpose of the agency, the Office of Justice Programs, is
to make sure that there is a national benefit to this. If it
was just a funding program, we could just figure out a formula
and save a lot of time.
But we are trying to make the benefit, so states can
benefit from other states and that there are national
strategies to help states, which are the primary agencies that
deal with this problems, that there is a sharing of information
and there is a more effective way for a state or local
government to deal with these issues.
So I think Senator Sessions is absolutely right and, Ms.
Robinson, we really do look forward to your recommendations in
this area. I think we all are trying to get a better
effectiveness on the use of these Federal funds. It really
should not be just who can get as many earmarks to their states
as possible, but how we can best utilize the funds to deal with
this National priority of reducing juvenile crime and adult
crime and make our communities safer in the most cost-effective
way.
So I just wanted to add my support to Senator Sessions'
comments.
Senator Sessions. What is the total OJP budget?
Ms. Robinson. For 2009, it was $2.8 billion.
Senator Sessions. So I am not saying any of this is wasted,
although I am sure some is not spent well, but the idea that we
do not have enough money to do good research raises questions,
because $10 million or $20 million could substantially increase
your ability to do research out of a multi-billion dollar
budget indicates that Congress probably needs to examine how we
allocate the money.
Senator Cardin. I think that is our responsibility, you are
correct. Let me thank both of our nominees. The record will
remain open for 1 week, without objection. I will submit
statements from--I understand, Ms. Robinson, you have an
opening statement to submit for the record. That will be
included in the record.
With that, the Committee will stand adjourned.
[Whereupon, at 5:24 p.m., the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF JANE BRANSTETTER STRANCH, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT; AND BENJAMIN B. TUCKER, NOMINEE TO BE
DEPUTY DIRECTOR FOR STATE, LOCAL AND TRIBAL AFFAIRS, OFFICE OF DRUG
CONTROL POLICY
----------
WEDNESDAY, OCTOBER 21, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:53 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar,
presiding.
Present: Senator Sessions.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator Sessions. I see the surprise on my two Tennessee
Senators' face. I'm calling the meeting to order, but I'm
authorized to do so by the Democratic leadership.
We'd be glad to hear your statements at this time on the
nominees, the nominee that you'll be speaking on. All of us on
the Committee value very much the opinions of the State
Senators.
Senator Alexander.
PRESENTATION OF JANE BRANSTETTER STRANCH, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE SIX CIRCUIT BY HON. LAMAR ALEXANDER, A
U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Alexander. Thank you, Mr. Chairman. I knew
Republicans were doing better, but I didn't know it had come
this far.
[Laughter.]
Senator Alexander. So, thank you. It's my great pleasure
today to introduce to the Committee Jane Branstetter Stranch
from Nashville, Tennessee. She's been nominated by the
President to be a judge on the United States Court of Appeals
for the Sixth Circuit.
She has a distinguished academic background: summa cum
laude, Phi Beta Kappa from Vanderbilt, Vanderbilt School of
Law, top grades there. She has lots of practical experience,
having taught law at Belmont--labor law at Belmont College.
Her law firm is a family affair. Her father, who I think is
watching today, is one of Nashville's best-known and most
respected attorneys, Cecil Branstetter. He introduced
legislation to allow women to serve on juries back in the
1950s, so I know he gets some special pride today to see that
his daughter has been nominated by the President to be a judge.
Maybe more important than any of these other things, she's
been very active in the PTA, in her church, and in the
community in Nashville.
So, Senator Sessions, Mr. Chairman, as Governor, I
appointed about 50 judges. I didn't ask them their politics, I
didn't ask them how they felt about issues. I tried to
determine if they had the character and the intelligence and
the temperament to be a judge, whether they would treat people
before the bench with courtesy, and most important, whether
they were determined to be impartial to litigants before the
court, and I am convinced that Jane Stranch will be and I'm
pleased to recommend her to the Committee.
Senator Sessions. Thank you, Senator Alexander. I know,
having watched you in the Senate, that you, as a lawyer, have
high ideals for the bench, and I appreciate so often your input
into the discussions involving the judiciary and legal issues
in the Senate.
Senator Corker.
PRESENTATION OF JANE BRANSTETTER STRANCH, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE SIXTH CIRCUIT BY HON. BOB CORKER, A U.S.
SENATOR FROM THE STATE OF TENNESSEE
Senator Corker. Well, thank you, Mr. Chairman. It is good
to see you in that role. I am just thinking, as you said that.
Lamar has done so many things in his life that were so
distinguishing, I forgot that he was a lawyer.
[Laughter.]
Senator Corker. So I'm glad you're----
Senator Sessions. As a businessman, that's probably all
right.
Senator Corker. I am pleased, always, to come before this
Committee, and others, with Tennessee who have been recommended
for positions like this. We are proud of the people that have
served our country in public office. Jane Stranch is someone
who I haven't gotten to know except through this process. What
I do know about her though, and I know this for a fact, she
comes from a family that is one of the most esteemed families
in Nashville.
I have served with her brother on civic boards and know of
the type of character that this family embodies. I know she's
here with people that I greatly respect who are in support of
her nomination. I can tell you that I know that she is someone
who cares deeply about her community. I know she embodies
integrity in everything that she does, and I'm very happy to be
here today with Lamar Alexander, supporting her and being
presented to this Committee.
I know this Committee will go about this process in a very
fair way, as this Committee has done in most recent times, and
I look forward to that process. I look forward to hearing what
the Committee's recommendation is. But I am very, very honored
to be here and I thank her for her willingness to serve our
country in this regard.
I know I talked at length with her about that, and while
she, I know, loves serving as an attorney in her community and
has represented many people across this country, I know she
feels it's time for her to give back in this way. So, with
that, Mr. Chairman, I thank you, I thank Lamar for allowing me
to join him, and I certainly thank Jane Stranch for her
willingness to serve her country in this way.
Senator Sessions. Thank you very much. Good words, indeed.
Senator Corker. I am looking forward to your filibuster at
this point.
[Laughter.]
Senator Sessions. I will ask that the nominees step
forward. If you would raise your right hand and remain
standing, we'll take this oath.
[Whereupon, the witnesses were duly sworn.]
Senator Sessions. Thank you. Please have a seat.
We will just be delighted to hear any comments each of you
have, and then if you would like to introduce family or guests
that are with you, we would be pleased for you to do that.
I guess, Ms. Stranch, do you want to start? We'd be glad to
hear from you.
STATEMENT OF JANE BRANSTETTER STRANCH, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE SIXTH CIRCUIT
Ms. Stranch. Thank you. I would like to introduce my family
members and friends who are here, if I might: my husband of 37
years and my law partner, Jim Stranch; our oldest son Gerard,
who practices law with us, and his wife Patty, who is an
attorney also. They did not bring their 2-year-old son, our
oldest grandchild, for obvious reasons. But our daughter
Abigail is here, Abigail Tyler, and she is here with our second
grandchild, our 4-month-old, Hudson Tyler. With her is her
friend, Elise Fellman, who is holding Hudson. Elise is an
honorary daughter in our family.
I have my brother, Dewey Branstetter here, who is also my
law partner, and his son Hunter Branstetter, who will begin law
school next year. I have friends with us also. George Barrett
and Mary Barrett Brewer are here in support of what's going on
today.
I would also like to say that there are a few people that
could not come whose names I would like to mention. Our other
two children, Ethan and Grace, are not able to be here because
they are observing the Stranch rule that studies come first,
and they are at school in Memphis, med school and undergraduate
school.
My parents, Cecil and Charlotte Branstetter, were not able
to be here today. My father will be 89 in December and does not
travel as much as he did previously, but would say to you how
grateful he is for this opportunity for me. As Senator
Alexander indicated, he served in the Tennessee legislature for
one term and sponsored the bill that allowed women to serve on
juries, because they had not before. I think it's an honor, and
in a way coming full circle, that he has a daughter now that
might be able to serve as a judge.
So, I appreciate your time. I appreciate being nominated by
President Obama, and I appreciate so much the introduction of
our Senators. I know that they believe what I believe:
ultimately we're Tennesseeans working together to make this
system function well. So, I am grateful. Thank you.
Senator Sessions. We are joined by Senator Klobuchar. We
just had the opening statements from the two home State
Senators, Alexander and Corker, and Ms. Stranch's statement.
Senator Klobuchar. Well, very good. Congratulations, Ms.
Stranch, on your nomination. I was very impressed when I looked
at your background and your legal career and the fact that you
also have done all this with both--is it true you practice with
your husband? Is that right?
Ms. Stranch. Yes.
Senator Klobuchar. And that's also a big thing. Very good.
Ms. Stranch. And with our son and with my father, which
makes it a bit difficult to get away from the practice.
Senator Klobuchar. Well, this certainly shows that you get
along with everyone and are able to work out conflicts in the
workplace.
Then also, I apologize for being late. We had a vote and I
had a meeting afterward, but I also wanted to recognize Mr.
Tucker, who is now going to speak, who has been nominated to be
the Deputy Director of State, Local and Tribal Affairs at the
Office of National Drug Control Policy. This is a very
important job.
As you know, you will be responsible for coordinating
Federal efforts to disrupt the market for illegal drugs,
managing a program that provides grants to counter-drug task
forces and supporting State and local governments in their
efforts to reduce substance abuse at the community level, among
other responsibilities. It's a big job, but your background
should serve you incredibly well, if you're confirmed. I noted
that you got letters supporting your nomination from the
National Sheriff's Association, the Police Executive Research
Forum, and from the Major City Chiefs.
You began your career as a New York City police officer,
right on the front line, so you know what life is like on the
front lines for our officers. You have continued your work with
local law enforcement after leaving the NYPD as the head of the
Office of School Safety and Planning for New York City, not an
easy job, and in national government as the Deputy Director for
Operations in the COPS office at the Department of Justice. So,
we welcome your experience and look forward to hearing from you
today.
STATEMENT OF BENJAMIN B. TUCKER, TO BE DEPUTY DIRECTOR FOR
STATE, LOCAL AND TRIBAL AFFAIRS, OFFICE OF DRUG CONTROL POLICY
Mr. Tucker. Thank you very much, Senator. Senator
Klobuchar, Ranking Member Sessions, thank you for holding this
hearing today. It's a privilege to appear before you and to
allow me to give you my views of the new work that I hope to be
doing.
Please allow me to introduce my members of my family who
are with me today: my wife Diana, my mother-in-law, Constantia
Beecher, and my son, Scott Tucker.
I am honored that President Obama has put my name forward
to serve as Deputy Director for State, Local and Tribal Affairs
of the White House Office of National Drug Control Policy. If
confirmed, I look forward to continuing my strong commitment
and career-long efforts to improving community safety through
the use of efficient and effective prevention and crime control
practices.
I understand the importance of the ONDCP mission and I do
not take lightly the responsibilities of the position for which
I am nominated. My return to Washington in this new capacity
offers opportunities for me to use my experience in the
management and oversight of four critical programs: the High-
Intensity Drug Impact/Drug Trafficking Areas; the Drug-Free
Communities Program; the National Youth Anti-Drug Media
Campaign; as well as the Counter-Drug Technology Assessment
Center.
I am ready to work with Director Kerlikowske and the ONDCP
team as they lead the administration's efforts to address drug
problems manifested by challenges presented by both treatment
and enforcement in communities across our country.
It has been my experience over the years that we can solve
the problems that threaten our communities more effectively
when we pool our resources. I have spent the better part of my
career finding ways to use evidence-based research to inform my
decisions and to craft sound practices and policies. In my
view, our success in reducing drugs and drug crimes lies
fundamentally in our ability to work together, to share
information, to be open to new ideas, and develop thoughtful
approaches and apply tested strategies.
This approach seems entirely consistent with the Office of
National Drug Control Policy mandate to develop and oversee the
effective coordination of the President's drug control
strategy, as prescribed by the Congress. I believe I have much
to offer and hope the members of the Committee will agree.
In closing, please know that I would very much like to add
my voice, as well as my thoughts and ideas, to the efforts
under way to shape a successful drug control policy. I am happy
to answer any questions you may have.
[The prepared statement of Mr. Tucker appears as a
submission for the record.]
Senator Klobuchar. Thank you very much.
Do you want to begin, Senator Sessions?
Senator Sessions. No, go ahead.
Senator Klobuchar. OK. Ms. Stranch, you're one of our--you
know, we have had a number of people, nominees, come through
for judge jobs, and you're one of the first that didn't
actually have judicial experience. I don't necessarily think
that is a bad thing, but I want you to talk a little bit about
your legal practice and how you came to focus on certain areas
of litigation.
Ms. Stranch. I have over 30 years of experience in
litigation, much of it in the Federal courts. I do believe that
that would prepare me for a position as a judge. The primary
emphasis of my present practice has been in ERISA, the Employee
Retirement Income Security Act. In that, there is a broad range
of work that I do. I do complex litigation across the Nation,
representing individuals who have lost their pensions, and some
of the corporate problems that have occurred in the past
decade.
I also represent health funds, pension funds, as entity
representation under ERISA, and represent individuals in
pension matters. That practice has taken me to many different
courts and courts of appeals as well, and has given me the
experience of being able to see different judging styles, shall
we say, and hopefully to draw from those the best of what I've
seen.
I also have an extensive labor law practice. I am proud to
have represented working men and women across America, and
individuals as well as labor organizations. That has given me
statutory experience in interpretation of the law, as well as
board experience in administrative capacities.
Probably the other largest component of what is a very
general practice, coming from the South, we have a number of
things that we do. And mine, the third one would probably be
entity representation of small entities, primarily utility
districts, which under Tennessee law are quasi-municipalities.
I've provided the full range of defense and corporate work and
instruction and entity representation to those districts that
are very important in the State of Tennessee because they
provide the ability for development in both commercial/
industrial and residential. I think those are the primary
components of what is a fairly general practice.
Senator Klobuchar. Thank you.
And how would you characterize your judicial philosophy, if
you had to describe it? What kind of judge do you want to be?
Ms. Stranch. I would say that understands authority. Being
a litigator over the years, I well recognize that when I go
before a judge it's the judge who decides my case. Now I
understand that if I am in the position of that judge, I am
constrained by like limits: the law constrains me, the
percedent constrains me, and I will honor and comply with those
things that would govern how I would act as a judge.
Senator Klobuchar. What about the precedents within your
own Circuit? How much deference will you give to decisions on
issues that aren't necessarily--have not been before the
Supreme Court, but have been before your Circuit?
Ms. Stranch. I understand the deference to existing law.
Stare decisis would have a stand on the decisions as they are.
Although the final word may not be through the Supreme Court,
it would leave an opening to examine those issues in accordance
with all of the law and facts that govern that particular case.
I would do so, but always understanding that there is a
deference to the cases that have been decided and that there is
a reason for that deference, to assure the litigants that they
can understand the nature of the law and its continuing
applicability to the actions that they take.
Senator Klobuchar. And how about when you are on panels and
you're working with the other judges? What's your view of
trying to get consensus and agreement?
Ms. Stranch. I have a strong belief in collegiality, and I
think perhaps even a stronger belief in civility. Having
practiced across this Nation in a number of courts, I would
like to say that everywhere I go I receive the same reception,
but I can't say that that's always the case. In some
circumstances, the method by which courts are run is not always
as civil as I would honestly like to see it be.
It's my belief that if you want the courts to be respected,
then you need to treat both the litigants and the counsel
before you with comparable respect. In doing so, that includes
how I would treat the people that I would work with. As you
know, I'm working with my family for a long time.
Senator Klobuchar. That's the best evidence.
Ms. Stranch. Self-restraint is a learned trait.
[Laughter.]
Ms. Stranch. But I look forward to the collegiality of a
court that I would be able to work with and share ideas with. I
think it's extremely important.
Senator Klobuchar. Thank you very much.
Senator Sessions.
Senator Sessions. Thank you. Good questions.
Well, I think your experience is a valuable one. I think
you are right, that you may not know how to describe it, but
you know some judges handle parties and litigants better than
others. I appreciate, I think, a sincere commitment on your
part to treat the litigants fairly and objectively and to
render a decision based on the law and the facts, and comply
with the oath, which is to be impartial. You will take that
oath. It also requires you to do equal justice to the poor and
the rich, and it also requires you to serve under the law,
under the Constitution and the law of the United States, and
not above them.
So I really appreciate people who have had a good practice.
And, what? Eighty-something percent of your practice has been
in Federal court?
Ms. Stranch. It has been. That has been my expertise and my
interest. I have enjoyed that.
Senator Sessions. One thing you haven't had much experience
with, it appears, is criminal law, which is a big part of the
Federal court and docket. The sentencing guidelines have, to a
large degree now, been declared advisory, but they represent a
huge commitment of time, effort, and research and data to try
to figure out what appropriate penalties are for crimes and, I
think, deserve a great deal of deference. I was rather
flabbergasted when the Supreme Court declared them advisory,
and still remain so. But irregardless, that is apparently the
state of the law.
What deference and what approach would you take toward your
responsibility to be in compliance with the guidelines,
advisory or not?
Ms. Stranch. I recognize that there has been an alteration
in the guidelines from mandatory to advisory, but I also
recognize that there's a great deal of law that exists out
there on how the guidelines have been applied over time. That
law is instructive and is something that would have to be
considered and looked to in each new case and to see how it
applied to the particular facts of that case. So the governing
rule for me would be, what exists in the law, what decisions
are there, and were due process rights provided in accordance
with the Constitution?
Senator Sessions. Well, I think that's true. I would just
say to you, my advice--for what it's worth, as a prosecutor for
15 years in Federal court--I'd suggest start applying them,
following them. As the years go by or the time goes by and you
think that this case might be an exception--but there is a
danger, because when I started prosecuting, judges could
sentence a person from zero to 20 years, and some judges would
give them probation and somebody else would give them 20 years
for the same offense.
There was a real concern of aberrational sentencing,
inconsistencies in sentencing. The amount of punishment a
person got depended on the judge before whom they appeared. The
guidelines have been, I think, a very positive development. I
think the judges that have grown up under it feel real
comfortable with it and I think most of them try to follow it
whenever possible. You just don't want to get to the point of
view of deciding the sentence based on the preacher's plea.
They always have a preacher come plea. It's sad. I mean, these
things are tough, they're no fun.
Ms. Stranch. Thank you.
Senator Sessions. Now, as a judge, you're aware that
rulings against prosecutors are normally not appealed. In a
number of decisions you make, the prosecutor is unable to
appeal. That's a pretty awesome power for a judge. I guess I
would ask you, do you recognize that the person representing
the people of the United States, seeking to protect them from
criminal predators, they're entitled to a fair shake in court
also?
Ms. Stranch. Yes, sir, I would. I believe that everyone is
fair--should have a fair shake and should have an equal
opportunity before the courts.
Senator Sessions. You know, we've had lawyers that
represent business interests and they've been questioned about
their fairness. You've represented the AFL-CIO and other labor
interests. You will take the oath to do equal justice to the
poor and the rich and to be impartial. Will you be able to give
the parties before the court a fair hearing, even though you've
had a background more from the labor side?
Ms. Stranch. Yes, Senator, I would. If I will have the
privilege of serving, I will do what the law calls me to do,
not to be a respecter of anyone, but to be an equal treater of
all.
Senator Sessions. Thank you. I'm impressed with your record
and impressed with the recommendations from your two Senators.
I think you'll make a good nominee, from what I know.
Ms. Stranch. Thank you, sir.
Senator Klobuchar. Thank you very much, Ms. Stranch.
Ms. Stranch. Thank you.
Senator Klobuchar. Mr. Tucker, could you talk a little bit
about your 22 years as a police officer in New York City and
how that has shaped your approach to this job?
Mr. Tucker. Yes, Senator. Interestingly enough, I started
out my career, and one of the first assignments in my career
was being trained to be an instructor and to be an educator of
policies and issues and the treatment around drug issues. So
it's ironic that I'm here today, sitting here as the nominee
for the Deputy Director of State, Local and Tribal Affairs for
ONDCP.
I was a beat cop after that, and in doing that, my day-to-
day operations involved making arrests, and on occasion arrests
for narcotics and other types of crimes. So the training
started out pretty much, and the job was pretty much
uneventful, nothing extraordinary. During the time that I was a
police officer, I went to school and got my undergraduate
degree and law degree while I was a police officer. After
getting a law degree, taught at the police academy, taught law,
and then subsequently went to the Legal Bureau of the New York
City Police Department, where I served as a legal advisor for
the department for a few years.
Subsequent to that, I moved on to the Civilian Complaint
Review Board within the police department, where I served as
the Deputy Director for pretty much investigations in the
agency, and thereafter worked for the New York City mayor as
the liaison for Law Enforcement Services as assistant director
there, where I spent time working on problems and issues
involving coordination efforts between and among our local
criminal justice agencies of Probation, Juvenile Justice, and
so forth. Thereafter, I left the agency and ran the Human
Rights Commission for about 18 months on behalf of the mayor,
and subsequent to that retired from city government. So, it was
kind of a diverse employment career early on.
Thereafter, when I moved into other areas, I became a
researcher and worked with a program focused on substance abuse
called the Substance Abuse Strategy Initiative that was then
based at the Wagner Graduate School of Public Service at NYU,
and subsequently merged with an organization that still exists
called CASA, the Center on Addiction and Substance Abuse, where
I was director of Field Operations and senior research
associate, focusing on a variety of at-risk populations and
developing program demonstrations.
In particular, focused on one demonstration program focused
on at-risk youth, and the goal of that program, we were trying
to test different strategies that would provide us with best
practices for keeping pre-adolescents from becoming involved in
drugs and crime. We ran that in the five different cities--that
program in five different cities around the country, and it was
rigorously evaluated, both from an impact perspective as well
as a process perspective.
That gave us, I think, and informed the entire community on
the issue of how we deal with the variety of issues that
students face and how to protect communities, both from a
public safety perspective as well as how to keep children
from--our youth from becoming involved in drugs and crime.
We also developed a program--and I was the person who
developed some of the community policing aspects of that--
focused on ex-offenders and reentry. So we spent a fair amount
of time. Again, this was a multi-site program, working with ex-
offenders to test some of the early strategies surrounding the
issues of how we get ex-offenders who are leaving incarceration
to enter society--reenter society in a way that was productive.
Most of those folks, the offenders who were returning, were
offenders who were drug-addicted, so we were trying to build a
variety of services around supporting those individuals in
terms of housing, employment, and of course drug treatment, at
the time.
Then more recently, as you pointed out, I had the honor to
serve in the Clinton administration as the Deputy Director of
COPS, where I was responsible for managing the grants
administration program principally, but also training and
technical assistance to State and local jurisdictions, as well
as setting up a network of regional community policing
institutes, which are actually still active.
They were designed to help continue some of the work that
came out of the funding that we provided during the
administration at the time, and were intended to survive the
COPS office once it moved on. So, those regional community
policing institutes are still active and providing a variety of
services in support of local communities and partnerships with
universities, police officers, law enforcement, and such.
Senator Klobuchar. Thank you very much.
Senator Sessions.
Senator Sessions. Thank you.
Mr. Tucker, I think this is an important office that you're
about to be a part of. It's the first czar's office, I guess,
that we had. Maybe it didn't go back as far as the Romanoffs,
but the first drug czar in that office was designed to try to
create some coordination in our enforcement of drug activities.
There are so many independent entities, as you well know from
your background: sheriffs, and police departments, and State
prosecutors, and prison systems, and drug treatment programs,
and this, that, and the other, educational groups, school
groups, all involved in trying to reduce the number of people
involved with drugs.
Some people were critical of President Reagan's war on
drugs and Just Say No program, but I was there. We had over 50
percent of the high school seniors that admitted using an
illegal drug substance in 1979, according to a University of
Michigan study, an authoritative study. By the time I think he
left office, or President Bush left office, it was half of
that. That was a huge progress, and part of it, I believe, was
a consistent message that drug use is not acceptable, it's not
funny, it's not a joke, it's not recreational. It's serious,
dangerous business.
Now, you've been on sort of both sides, as a law officer
and a part of the CASA program. You've studied this and tried
to think it through. I would just suggest to you that one of
your roles may be, like General McCafferty, I think, found his
under President Clinton, to try to make sure that
administration isn't caught up too much in being soft on these
issues, in trying to be nice about it, and to take the hard
issues that are necessary to keep drug use down in the country.
So let me ask you one question. There's been some news
lately about it. That's the California medical marijuana thing.
That was a big mistake, in my opinion. General McCafferty
opposed it when that came up under President Clinton. Bill
Bennett opposed it when he was drug czar. Mr. Bob Weiner,
President Clinton's White House Director on Public Affairs for
ONDCP, said this recently, warning the Obama administration:
``Be careful about the new lax enforcement policy for medical
marijuana because you may get way more than you bargained for.
Prescription marijuana use may explode for healthy people. ``
Do you think that's a concern, and would you share that?
Mr. Tucker. Thank you, Senator. It's an important issue.
Glad you raised it. As a former law enforcement official and in
various capacities, I've always been focused on enforcing the
law. Wherever we have statutes that exist that require or
identify conduct that is illegal, then my view is that those
laws should be enforced, whether they be local laws or Federal
laws.
Having said that, I'm not fully versed on the status of the
latest issue regarding medical marijuana, except to say that
I've read some of the articles and dealt with some--and read
some of the issues that are on the table. If I were to join the
administration, I would obviously be committed to following
whatever the wishes are and whatever the processes are coming
out of the administration.
Senator Sessions. Well, I understand that. I would just say
to you, I think you probably have a good perspective. There's
always people that just think that if we could just legalize
all this, the problems would go away. But that's not so. It's
just not. In places that have legalized drugs, they've
generally had difficulties. It looks like California is having
a real problem with this medical marijuana gimmick.
I think--I'm not sure Mr. Ogden's--the Deputy Attorney
General's--memorandum titled ``Authorizing Medical Use of
Marijuana,'' sets a good policy, because you've got to be
careful about the message. Don't you think one of the main
things that the drug policy board should do is send a clear
message about drug use and the dangers of it, and to utilize
the power of your office to be a national spokesman for efforts
to contain illegal drug use?
Mr. Tucker. You are absolutely correct, that is the mission
of the Office of National Drug Control Policy, and that is the
mission that I would wholeheartedly support at all costs, if I
am confirmed.
So, yes. I don't--marijuana is illegal. It is a substance--
it is, in our schedule of substances, a Schedule 1--I believe a
Schedule 1 illegal drug, and as a result of that, the laws
against marijuana should be enforced, as far as I'm concerned.
Senator Sessions. Well, thank you. I don't want to go much
longer.
Senator Klobuchar. Go ahead.
Senator Sessions. But also, your organization, ONDCP, has
been active with schools, dealing with young people and drug
use, particularly--a particular emphasis of that organization.
You've been involved in New York in that, and I commend you for
it.
Can you--do you have any observations, briefly, about the
connection between drug use and drop-outs and violence by young
people?
Mr. Tucker. No, I don't have any specific information,
Senator. But I think that's a good question. Some of the
research that I worked on personally while I was a researcher
with CASA focused on preventing--recognizing, first of all,
that the pre-adolescents that we were working with, it was
determined that they were clearly at risk for getting involved
in drugs and crime. In fact, we determined perhaps the focus on
pre-adolescents may have been the age--we should have started,
perhaps, at a younger age to sort of get the message out.
So, yeah. I think the message that ONDCP tries to send in
every possible way is to make it clear to young people in
particular, and through our media campaign I understand that
the agency has in the past placed heavy emphasis on directing
their messages to young people between 12 and 17 years of age.
As someone who worked in schools, there's no question that
our students, our young people, have to be reminded repeatedly
about the illicit effects of narcotics and dangerous drugs, so
we can't give enough or put enough information out there to
dissuade them, in my view. So we--if I'm confirmed and I go to
ONDCP, one of the ways in which I think I would focus my
attention would be on that issue. I'm familiar with it.
I was in the trenches with young people at schools around
the clock, and that was working with not only schools around
other--schools in other parts of the country when I was a
researcher, but while I ran the New York City--safety for the
New York City school system, which is the largest in the
country.
Senator Sessions. Well, I would just say, that's--I'm glad
to hear you say that. I remember when I was a U.S. Attorney in
the early 1980s, we had the Partnership for Youth and Coalition
for a Drug-Free Mobile, I was on the board of both of those. We
spent years working on this. I truly believe that that was as
much a part of the reduction in drug use by youth as anything
that occurred.
And you are correct to say, even though the teachers may
be, and the volunteers may be a little tired of saying it and
they're not as enthusiastic as they were when they first rose
up, somehow we've got to figure out a way to keep that message
out there. We do not want those numbers to start going up again
to a significant degree.
Thank you, Madam Chairman. I have one more thing. I will
submit a question to you in writing. But I do believe we need
to deal with the disparity between crack and powder cocaine.
I've had an amendment to take some substantial steps to reduce
that problem and make it better for the last 10 years. But I am
concerned that some of the policies indicate a willingness to
go too far that could create an impression that we're on the
road to legalizing drugs, and that drug use is not a serious
problem in our country.
That's one thing you and your organization will need to be
engaged in. It's not just the Department of Justice, but your
organization is dealing with policy. What are the right
sentences for serious drug dealers in America today? We can't
eviscerate those penalties, but we can change them and make
them better, and we must do so, actually. We've gone too long
without addressing that. So, I look forward to working with you
on that.
Mr. Tucker. So do I, Senator. Appreciate it. Thank you.
Senator Klobuchar. Thank you.
And Senator Sessions, I do appreciate your support for
eliminating that disparity. I think it's very important.
Also, Mr. Tucker, thank you for your explanation on the
drug policy. I know those are difficult issues. I think one of
the things that law enforcement is confronted with every day is
just the triaging and trying to decide where to put the
resources for the best bang for your buck, so to say.
So could you talk a little bit about your priorities for
drug enforcement and that side of things?
Mr. Tucker. Sure. Just one comment with respect to the
crack/powder cocaine--crack issue. I agree 100 percent that the
issue of parity should be dealt with, an I would commit to
talking with you and look forward to talking with you further
about that in the future.
As it relates to the more general question that Senator
Klobuchar just raised, I think generally, because of the areas
of responsibility that I have in HIDTAs, as well as the Drug-
Free Communities in particular, we will be looking at, and I
hope to bring sort of my experience to looking at both the
treatment and the enforcement aspects of this as much as
possible.
Of course, the High-Intensity Drug Trafficking Area is
totally committed, the 28 HIDTAs, as well as the Southwest
border, are all trying to do as you suggested, triage, and to
deal with both the violence as well as the drug trafficking,
dismantling, and disrupting as many drug trafficking
organizations as possible. So we hope to certainly keep that
commitment and working with all the Federal, State and local
agencies to stay the course.
The same, I think, is true with respect to the Drug-Free
Communities from another perspective, and that is at the local
level, to be sure that we engage with communities and various
members of communities, in addition to law enforcement to
ensure that any of the best practices that are coming out of
some of the grants that have been funded make their way to
other communities by way of educating them in ways in which
they can reduce the use of drugs by our youth, but also deal
with the other issues that become a blight on our communities
as a result of the drug trafficking.
Senator Klobuchar. And one of the things I get concerned
about, as resources are tight in our local government units and
people are feeling it everywhere, is just, I've felt that as
we've seen these reductions in crimes--I know my town of
Minneapolis went from being called ``Murderopolis'' by the New
York Times--that was a low point, let's say--in the 1990s, to a
point where we have reduced the murder rate to really
incredibly low rates. A lot of it was not just some good
prosecution, if I would tout our own office, but also of the
bigger crimes, but the fact that we paid attention to the drug
crimes and some of the lower-level property crimes.
With respect to the drug crimes, we had a drug court. When
I came in there was a lot of distrust from the police of the
drug court, and it's still not perfect, but we ended up taking
the gun cases out of it and tried to focus more on some of the
lower-end users, with the idea being not to give them a free
pass, but to have that continuing checking and handling things
differently.
As I say that, I always balance that with, we want to make
sure there's carrots, but also sticks in the enforcement. So if
you could talk about drug courts, and then just your view of
some of that low-level enforcement in general.
Mr. Tucker. Sure. I'm a huge fan of drug courts, first of
all. I mean, they've been around for, I guess, about 20 years
now. And as a result, I think--and they've grown. I mean,
they've focused. They've become some specialized and focused on
different areas, but I think the general theme or thesis of
that that supports the drug court theory makes perfect sense. I
think we do have to have a balance.
For non-violent offenders, I think the drug courts have
proven to be an effective and viable alternative to
incarceration and to dealing with people who happen to be drug-
addicted, and also happen to be part of the criminal justice
system. So I would--if--if I'm confirmed, would seek to
continue to focus on and do what I can to help provide
resources and support the drug court efforts that are already
underway.
As I understand it, there is some--has been some reduction
in funding regarding those courts, so we would try to, I hope,
bring some evidence-based information that supports more robust
activities and that would justify additional funding, perhaps,
for drug courts.
Senator Klobuchar. Then my last question here is, your job
also will involve not just local and State efforts, but also
tribal affairs. We have a number of tribes and reservations in
our State and there's always cooperation issues. We had a
horrible shooting at one of our schools on the reservation,
with a number of children dying. The Federal Government, the
U.S. Attorney's Office, was very involved in that case and
working with the tribe. I was just actually up there years
later, this last summer, and things have much improved there.
But that being said, talk a little bit about how you're going
to be able to work with tribal government.
Mr. Tucker. That's another really important question. I
have some familiarity with the tribal issues, primarily having
to do with my experiences at the COPS office. We worked closely
with the Bureau of Indian Affairs in providing resources during
that time, the last time I was in Washington. I would hope--I
guess I would like to know whether or not, and how much more
has been done since I was here 10 years ago.
So I was pleased to know that this particular position
involves my ability to work with tribes as well. Again, my
whole career is based on this idea of sort of figuring out how
to collaborate, how to use resources, how to have different
resources coming from different sources, coming from different
parts of the system, support for some of the problems that
exist.
I would hope that through our HIDTAs and through our Drug-
Free Communities, that we would also be able to bring to bear
some--create some solutions, or additional solutions for some
of the problems that you cite that may exist and do exist on
Native American reservations. So I look forward to engaging in
that part of the process as well.
Senator Klobuchar. Thank you very much.
Senator Sessions.
Senator Sessions. Thank you, Madam Chairman.
I agree that the drug courts, well run, are very effective.
I would not favor reduction of funding for that. In fact, I
would think there are many areas that are less priority than
the drug courts. They've just got to be run well. It can't be
an excuse to turn people loose and treat drug offenses as if
they're not serious. But if properly monitored, many of the
people who go through those courts do change their lives and do
better, so I think it's a good program.
What about the weed-and-seed program? Have you ever had any
experience with that, Mr. Tucker?
Mr. Tucker. I did, Senator, when I was at the COPS office
as well. The weed-and-seed concept, as I remember, was
effective in some--as is often the case, in some jurisdictions
and more effective in others. So I'm not sure what the status
of weed-and-seed is--those projects are now. I recall that the
intent was to, through the weed-and-seed program, try to
institutionalize some of the strategies that flowed from that
particular operation back then.
Senator Sessions. I would just wrap up, but I know we've
got a limited time. I would just say, I hope you consider that.
I saw it in Mobile. There was no money available when we
started that program. We had a town meeting in the Martin
Luther King area of Mobile, where crime was--drug crimes
particularly--were very, very prevalent. The good citizens rose
up and they said they wanted something done about it. The chief
of police responded, the mayor responded, the FBI and DEA.
Nobody had--just priorities. And they worked together and
developed a plan and completely altered that neighborhood.
I go there every now and then just to see the progress
that's been made. It doesn't require a lot of money, but if
you've got housing money, if you've already got police money,
if you've got drug treatment money, working all that together
can really be a positive impact.
Madam Chairman, thank you for this hearing.
Ms. Stranch, I would ask you one thing. We need somebody--
the President says, for the nominees to the bench, ``We need
somebody who's got the heart, the empathy to recognize what
it's like to be a young, teenaged mom, the empathy to
understand what it's like to be poor or African-American, or
gay, or disabled, or old, and that's the criteria which I'm
going to be selecting my judges.''
How does your philosophy--how would you describe your
philosophy with regard to empathy and the requirements of
objectivity in judging?
Ms. Stranch. Thank you. I know that's an important concern
to people. I can't explain exactly what was the basis of my
selection, though I am deeply honored to be selected. I would
say to you that I will be objective and fair, and I do
recognize that I am bound by existing precedent and by law, and
that those are the things that will govern my decisionmaking.
Senator Sessions. Thank you.
Thank you, Madam Chairman.
Senator Klobuchar. Thank you very much, Senator Sessions.
But you will make sure you still have some empathy for your
husband when he's practicing alone now at the law firm.
[Laughter.]
Ms. Stranch. Yes, I will. Thank you.
Senator Klobuchar. All right. Good.
Well, I wanted to thank both of you. This was a very good
hearing. I'm going to put into the record Chairman Leahy's
statement. He couldn't be here today, but he has a good
statement about both of you, so I will put that in the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Klobuchar. Also, some letters of support that we
got in favor of Mr. Tucker, and it is from the president of the
Police Foundation, the president of the John Jay College of
Criminal Justice, and from the Major Cities Chiefs Association,
the National Sheriffs Association, and the Police Executive
Research Forum.
[The letters appear as a submission for the record.]
Senator Klobuchar. The record will remain open for follow-
up questions for 1 week for other members of this Committee.
So I want to thank you so much for being here and for your
families. See, you guys? It wasn't that bad, right? OK. Good.
Thank you so much, and we look forward to working with you in
the future.
The hearing is adjourned.
[Whereupon, at 3:46 p. m. the Committee was adjourned. ]
[The biographical information, questions and answers and
submissions for the record follows.]
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NOMINATIONS OF THOMAS I. VANASKIE, NOMINEE TO BE A JUDGE IN THE U.S.
COURT OF APPEALS FOR THE THIRD CIRCUIT; CHRISTINA REISS, NOMINEE TO BE
U.S. DISTRICT JUDGE FOR THE DISTRICT OF VERMONT; LOUIS B. BUTLER, JR.,
NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
WISCONSIN; ABDUL K. KALLON, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF ALABAMA; AND VICTORIA ANGELICA ESPINEL, NOMINEE TO
BE INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE OFFICE OF
THE PRESIDENT
----------
WEDNESDAY, NOVEMBER 4, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2 p.m., Room SD-
226, Dirksen Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feingold, Specter, Franken,
Sessions, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good afternoon. As always happens in the
Senate, there are a half a dozen hearings going on, so you may
see Senators drifting in and out.
We will hear from five of President Obama's well-qualified
nominees, four for lifetime appointments on the Federal bench
and one for an important position in the executive branch. I am
especially pleased that we will be able to welcome to the
Judiciary Committee today Judge Christina Reiss from Essex
Junction, Vermont.
Judge Reiss was nominated by President Obama to a seat on
the District Court in Vermont, and when confirmed, as I'm
certain she will be, she will be the first woman to serve on
that court. I was honored to recommend Judge Reiss to the
President and I look forward, at the appropriate time in the
proceeding, to introduce her to the Committee.
I would also welcome to the Committee Victoria Espinel, who
is nominated to be the first Intellectual Property Enforcement
Coordinator in the Executive Office of the President. She will
bring an incredible breadth of experience. It's an important
new Senate-confirmed position, created by legislation that I
shepherded through the last Congress, so we can better enforce
intellectual property protections. The notion of a coordinator
was strongly pressed by Senators Bayh and Voinovich, and I look
forward to when they can introduce Ms. Espinel to the
Committee.
All of the judicial nominees appearing before the Committee
today are from the home State of members of this Committee. We
welcome Abdul Kallon, who has been nominated to serve in the
Northern District of Alabama, the home State of the Committee's
Ranking Member, Senator Sessions. His nomination also has the
support of Senator Shelby.
We will welcome Justice Louis Butler, who is the first
African-American to serve on the Wisconsin Supreme Court and,
if confirmed, will be the first African-American to serve in
the Western District of Wisconsin. He'll be introduced by two
members of this Committee, his home State Senators, Senators
Kohl and Feingold.
Judge Thomas Vanaskie from Senator Specter's home State of
Pennsylvania has been nominated to a seat on the Third Circuit,
having served for more than 15 years in the Middle District of
Pennsylvania. Senator Specter and Senator Casey will introduce
Judge Vanaskie to the Committee.
I would hope that each would be treated well by the
Committee and receive the prompt consideration these
nominations deserve. We have tried to hear nominations in
regular order, and I think that we will continue to do so. I
wish the Senate as a whole would be able to do that. We do know
that Senate Republicans began this year threatening to
filibuster every judicial nominee of the new President.
I've been here 35 years. I've never heard that done by
either party, for a President of either party. Back through
history, I never found an incidence of that. Apparently the
only time such a threat has ever been made has been against
President Obama's nominees, and I think it's unfortunate. It's
even more unfortunate they followed through on that threat by
obstructing and stalling the process, delaying for months the
confirmation of well-qualified consensus nominees.
Last week, the Senate was finally allowed to consider the
nomination of Judge Irene Berger, who had been slowed up by the
other side. She's now been confirmed as the first African-
American Federal judge in the history of West Virginia. We had
to fight for 3 weeks while it was being stalled after her
nomination had been endorsed unanimously by the Judiciary
Committee.
Incidentally, after blocking it, when we finally were able
to force an actual roll call vote where people could not block
it anonymously but actually had to vote, she was confirmed 97
to nothing. There's been no answer to why they have subjected
this qualified nominee to weeks of unnecessary delay.
Why did it take 3 weeks and 2 hours to debate for the
Senate to consider the nomination of Roberto Longe to the
District of South Dakota after his nomination was reported
unanimously. And when we finally were allowed to vote and
people could not use anonymous holds back, so you had to stand
up and either vote ``aye'' or ``no'', it voted 100 to zero for
him.
I wonder why the Senate has confirmed only a single Circuit
Court nomination, when there are five, stalled by Republicans
on the Senate executive calendar, including two that have been
pending since June. It is November 4th. By this date, in
President George Bush's first year in office, the Senate,
controlled by Democrats, confirmed a total of 12 lower court
judges, including four Circuit Court judges. I know, because
that July I began serving as Chairman of the Committee, and in
17 months confirmed 100 of President Bush's nominees.
We did that in spite of the attacks of September 11th,
despite the anthrax-laced letters sent to the Senate that
closed our offices, one directed to me which killed at least
two people, and while working virtually around the clock on the
PATRIOT Act for 6 weeks.
But unlike the speedy way that the Democrats confirmed
President Bush's nominees, the Republican Minority has only
allowed action on four judicial nominees to the Federal Circuit
and District Court.
We reduced judicial vacancies as low as 34 last year, even
though it was the last year of President Bush's second term,
and of course could not be re-elected. Now those vacancies have
doubled. There are 96 vacancies in our Federal Circuits and
District Courts, and 23 more have been announced, approaching
record levels.
The American people expect more of the conscience of the
Nation from the U.S. Senate. We now have held hearings for 19
of President Obama's nominees for District and Circuit Court
vacancies. We've reported 14 of these nominations favorably.
With the cooperation of Senator Sessions, we can continue the
progress we're making on this Committee. We should not be
delayed then for months because of anonymous holds, especially
when people have to actually step forward and no longer hide
because anonymity and they then vote for the people they've
held up.
Senator Sessions, did you wish to----
Senator Sessions. Well, I don't really wish to get in a
tit-for-tat over the confirmations, but I would note that there
are 98 vacancies, according to our calculations, and only 22
nominations. Some of those are going through background checks
or review and I am sure we will move them forward. I would
expect I will vote for well over 90 percent of these nominees,
as I did for President Clinton. I think we'll move forward with
them. We've got a nominee I think the Majority is holding up--I
don't know why--Beverly Martin. I just happened to learn the
other day, that one's been sitting, ready to be voted on. We
ought to do that now.
I would say that there are a few nominees that are going to
be controversial and we're going to have a lot of debate about,
but most--I agree with you, Mr. Chairman, if we get them
nominated, then we'll evaluate them and the good ones we'll
move forward, and the non-controversial ones will.
I look forward to this hearing, and maybe we can move some
more, and one I know is a good one and I intend to support.
Chairman Leahy. Well, let me--we're going to have
introductions, and I'm going to do this the usual way, by
seniority. I will introduce Judge Reiss and Ms. Espinel.
Senator Specter will introduce Thomas Vanaskie. Senator Kohl
will introduce Louis Butler, followed by Senator Feingold,
followed by Senator Sessions for Abdul Kallon, and then
followed by Senator Casey for Thomas Vanaskie.
Let me--we're trying to do this fairly, by seniority. I am
proud to introduce to the Committee a fellow Vermonter, Judge
Christina Reiss. Judge Reiss will be taking the chair at an
appropriate point and will be able to introduce her family.
Judge Reiss lives in Essex Junction, Vermont. She's been
nominated to serve on Vermont's Federal District Court.
As I stated before, if confirmed, she'll be the first woman
to do so. She has considerable criminal and civil experience.
For the past 5 years she's been a State trial court judge in
Vermont. I would note, incidentally, that was a position to
which she was appointed by Governor Jim Douglas, a Republican,
and confirmed unanimously.
She formerly was a partner in two Vermont law firms. She
earned her B.A. from St. Michael's College, a wonderful
college. I graduated from there, and Erica Shebeaux, the press
secretary of this Committee, did. She earned her J.D. with high
honors from University of Arizona College of Law. She was
editor-in-chief of The Law Review.
I recommended Judge Reiss to President Obama after she
excelled in her interviews before a Vermont judicial nominating
commission. She demonstrated in those interviews she could
relate to litigants of many backgrounds. She has a keen
understanding of the powerful role a judge plays in the lives
of litigants before her. She acknowledged how important it is
for judges to possess humility, as well as an understanding of
the effects legal rulings have on people's lives.
I told her, the only criteria I have for a judge, other
than the obvious legal abilities, is that if I was representing
a litigant, either as plaintiff or defendant, poor, rich,
Republican, Democratic, Independent, whatever, if I came before
that judge I could look and tell my client, you will have a
fair hearing; you will win or lose based on the law and the
merits.
Judge Reiss is the type of person I could say that very
easily about. She's known for her strong intellect, her
diligence, her well-reasoned decisions. She has an excellent
reputation among the advocates who have appeared before her, as
well as among courthouse staff. As a testament to her
reputation among her fellow judges, she was recently selected
to be the presiding judge over Vermont's busiest State
courthouse this September.
I noticed that the Chief Federal Judge of Vermont, Judge
William Sessions, is also here for this hearing. I hope that
while I am very proud of her as a Vermonter, being the
presiding judge in Vermont's busiest State courthouse, I'm
looking forward to when she hits the Federal courthouse in
Rutland to serve as the U.S. District Court judge. So, I
congratulate you, and welcome you and your family.
Incidentally, on a personal note, I know how proud your father
was of you. I know how proud he would be. We have to assume
he's looking down to see you.
We will also welcome Victoria Espinel to the Committee. Ms.
Espinel is nominated to be the Nation's first Intellectual
Property Enforcement Coordinator, a Senate-confirmed position
created by legislation I authored last Congress. Five other
Senators on this Committee also co-sponsored this legislation
that takes a comprehensive approach to intellectual property
protection. It provides Federal, State, and local law
enforcement tools and resources they need to combat
intellectual property theft. The nomination of Ms. Espinel
shows that the administration is serious about protecting
intellectual property to spur our economy, create jobs.
Ms. Espinel has extensive experience with intellectual
property issues, both foreign and domestic. She worked on these
issues in and out of government. President Obama picked her,
knowing about that experience, including service in the Bush
administration as the Assistant U.S. Trade Representative for
Intellectual Property and Innovation. She's currently the
president of Bridging the Innovation Divide, a nonprofit
organization she founded to further intellectual property
education in minority communities.
She's an Assistant Professor of Intellectual Property and
International Trade at George Mason University School of Law.
She earned her B.S. from the Georgetown University School of
Foreign Service. Her Juris Doctoris--and I'm glad to see--I
don't know if this just is coincidence--is from my other alma
mater, the Georgetown University Law Center, and her LLM, with
merit, from the London School of Economics and Political
Science.
I will now yield to Senator Specter to introduce Thomas I.
Vanaskie to be a Judge in the U.S. Court of Appeals for the
Third Circuit.
PRESENTATION OF THOMAS I. VANASKIE, NOMINEE TO BE A JUDGE IN
THE U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT BY HON. ARLEN
SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. I join my
distinguished college, Senator Casey, in presenting to this
Judiciary Committee the nomination of Judge Thomas Vanaskie to
be a Judge of the Court of Appeals for the Third Circuit.
In January of 1994, I had the pleasure of presenting then-
citizen Tom Vanaskie to the Judiciary Committee and he was
confirmed. He has had 15 illustrious years on the U.S. District
Court for the Middle District. He has excelled there. I have
watched his progress and have been proud to have been a part of
his recommendation to the President, President Clinton, and
join Senator Casey in recommending Judge Vanaskie for the Court
of Appeals for the Third Circuit.
He brought to the bench and outstanding academic and
professional record: a Bachelor of Arts degree, cum laude, from
Lycoming College; J.D. from Dickinson School of Law, magna cum
laude; was on The Law Review editorial staff; and has been
recommended by the American Bar Association unanimously as
being Well-Qualified.
There is a great deal that could be said about Judge
Vanaskie, but I think his record speaks for itself. Racip
salupiter. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Kohl, you, I understand, wish to introduce Mr.
Butler.
PRESENTATION OF LOUIS B. BUTLER, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WISCONSIN BY HON.
HERB KOHL, A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Kohl. Thank you so much. It is my pleasure today to
welcome and introduce Justice Louis Butler to this Committee.
We also welcome several members of the family here with us
today. As those who do not know Justice Butler will soon learn,
he is an exemplary lawyer whose legal career has been
distinguished across the board, from advocate to judge, to
Wisconsin Supreme Court Justice. Justice Butler was born and
raised in Chicago, but he has been a Wisconsinite for more than
35 years. He received his B.A. from Lawrence University, and
his law degree from the University of Wisconsin.
Justice Butler served for more than 13 years in the State
Public Defender's Office, where he argued hundreds of cases on
behalf of indigent clients. Justice Butler was an accomplished
advocate and was the first Wisconsin Assistant Public Defender
to argue a case before the U.S. Supreme Court.
In 1992, Justice Butler joined the Milwaukee Municipal
Court, where he served for 10 years before becoming a trial
court judge. He was a judge in the Milwaukee County Circuit
Court, until being appointed to the Wisconsin Supreme Court in
2004. Over his many years on the bench he has earned a
reputation of being a tough, but fair, jurist. Justice Butler
not only has an impressive legal background, but he is a fine
man. He's a deeply committed man to his family, to his
community, and to the law. He possesses all the best qualities
that we look for in a judge: intelligence, diligence, humility,
and integrity. We are confident that the people of Madison, and
all of Wisconsin, will be enormously proud of him and that he
will serve us all well.
Justice Butler's nomination proves once again that the
process we use in Wisconsin to choose Federal judges ensures
excellence. The Wisconsin Federal Nominating Commission has
been used to select Federal judges and U.S. Attorneys in
Wisconsin for 30 years. Through a great deal of cooperation and
careful consideration and by keeping politics to a minimum, we
always find highly qualified candidates like Justice Butler.
Justice Butler, we are pleased to have you with us today
and look forward to your testimony.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kohl.
Senator Feingold.
PRESENTATION OF LOUIS B. BUTLER, JR., NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WISCONSIN BY HON.
RUSS FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
I, too, am honored to introduce Justice Louis B. Butler,
Jr., and I'd like to add my congratulations to this
extraordinary public servant. Louis Butler, as was mentioned,
was a former justice on Wisconsin's highest court. He has been
appointed by President Obama to serve as a U.S. District Court
Judge for the Western District of Wisconsin. Senator Kohl has
already reviewed his academic background. I would add that he
was also awarded an honorary Ph.D. in Humanities from his alma
mater, Lawrence University, in 2007.
During his career, Butler has served as an advocate, a
teacher, a judge, and a mentor. In the words of President
Obama, ``Butler has dedicated his career to public service'',
and ``he has displayed unwavering integrity and an unyielding
commitment to justice.''
Upon his nomination, Justice Butler received a unanimous
``Well-Qualified'' rating from the American Bar Association.
Justice Butler has had an impressive legal career, and
Senator Kohl outlined the highlights of it already. I noticed,
since the Judge is, in fact, somebody I've known as a personal
friend for many years, I was able to get to know him personally
and see, for example, his manner and approach during his 10
years as a judge in Milwaukee, Wisconsin's largest and most
diverse metropolitan area, and he was re-elected three times to
that. Then he was elected to the Milwaukee County Circuit Court
in 2002, and then fortunately Governor Doyle appointed him to
the Wisconsin Supreme Court.
Justice Butler's appointment marked an important moment in
Wisconsin history, as he became the first African-American to
serve on the court. Because of his background, he brought a
unique perspective to the court, but he recognized that his
overriding goal should be, as he put it, ``to treat every
litigant fairly and equally and apply the law without bias in a
neutral, detached, impartial, and independent manner.'' Justice
Butler has written, ``I first became a lawyer, then a judge,
because I am dedicated to achieving equal justice for all
people, including the downtrodden and those who lack resources.
I embrace the sentiment that injustice to anyone is intolerable
and that everyone should have access to the courts and a right
to be heard.''
Mr. Chairman, I believe these words are a very appropriate
calling card for a U.S. District Court Judge, and I strongly
support Justice Butler's nomination.
Chairman Leahy. Thank you very much.
Senator Sessions, you wished to introduced Mr. Kallon.
Senator Sessions. Thank you, Mr. Chairman.
I see Senator Casey here. I'm going to be here through the
end of the hearing. If his schedule is such that he would like
to, I would yield to him at this time.
Chairman Leahy. I appreciate it, because Senator Casey has
been extraordinarily helpful to this Committee. He's been
extraordinarily helpful to the White House in helping to vet
who the nominees might be. We've had many talks. Of course,
he's one of the most respected members of the Senate, so I
thank you very much for that courtesy.
Senator Casey.
PRESENTATION OF THOMAS I. VANASKIE, NOMINEE TO BE A JUDGE IN
THE U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT BY HON. ROBERT
P. CASEY, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Casey. Mr. Chairman, thank you very much. I want to
commend your work as Chairman of this Committee. I am honored
to appear here. I want to especially thank Ranking Member
Sessions for letting me jump the line. It doesn't happen too
often in the Senate, and we're grateful.
And to the other members of the Committee, my distinguished
colleagues, and of course my colleague from Pennsylvania,
Senator Specter, we're honored to be with him today.
I'm also grateful for the nomination of Judge Vanaskie made
by President Obama. We're grateful for that nomination. Senator
Specter gave a good summation of Judge Vanaskie's academic
record, as well as his experience. I'll just add a few words to
that.
Tom Vanaskie is someone I've known a long time. He's a son
of the coal country of Northeastern Pennsylvania, a place where
many of us have been exposed to what I would say was a history
and a heritage of hard work and sacrifice. In Tom's case,
growing up in a region like that, he dedicated himself at a
very young age to that hard work and sacrifice that I spoke of
earlier.
His academic record is beyond stellar, a record of academic
achievement and excellence that few could claim, whether it was
graduating with honors from Lycoming College or graduating with
honors as well from law school at Dickinson, serving on The Law
Review, and then clerking for Judge William Neelon, someone who
has had a long and distinguished career on the bench, himself
appointed to the bench by President Kennedy and had high
standards for his clerks. I know just from that of Tom's
ability.
Judge Vanaskie, after his clerkship, worked in several law
firms in Pennsylvania, one of them just happened to be the
Dilworth law firm where my father was practicing at the time.
Although my father was a public official for a good part of his
adult life, he probably spent more years as a lawyer. I know of
his ability as a lawyer. He was an excellent lawyer and
demanded high standards of those around him.
I think I probably, if I could speak for him in this way,
would say that he had the highest regard for Tom Vanaskie's
ability, his intellect, but also his work ethic, two critically
important characteristics of a successful lawyer, and now we
know as a successful judge the last 15 years.
He served, as Senator Specter said, since 1994 on the U.S.
District Court for the Middle District of Pennsylvania, was
made the Chief Judge in 1999, appointed to the Information
Technology Committee of the Judicial Conference of the United
States by Chief Justice Rehnquist, and I think, in conclusion,
I'd say if you look at his academic record, his work as a
lawyer, and now his work for 15 years as a judge, there are a
couple of ways to describe all of those and I think is a
forecast of what he would do on the U.S. Court of Appeals for
the Third Circuit.
The following, I think, distinguishes him: excellence,
knowledge of the law, fairness, temperament, and character, all
of the elements or all of the characteristics that we would
hope every judge possesses. So I am honored, both honored and
proud, to recommend to this Committee the confirmation of Judge
Thomas I. Vanaskie for the U.S. Court of Appeals for the Third
Circuit.
Thank you.
Chairman Leahy. Well, thank you, Senator Casey. The
recommendation means a great deal. As you know, the admiration
I had for your late father, what you say about him, that
carries also a great deal of weight. I also know that you have
a back-to-back schedule the rest of the afternoon and will have
to be leaving us, but I appreciate you being here.
So, Mr. Vanaskie, if you would step forward, please. I
should say Judge Vanaskie. Please raise your right hand and
repeat after me.
[Whereupon, the witness was duly sworn.]
Chairman Leahy. Thank you. Please sit down, sir.
Judge, did you have an opening statement that you wished to
give?
STATEMENT OF THOMAS I. VANASKIE, NOMINEE TO BE JUDGE IN THE
U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
Judge Vanaskie. Senator Leahy, I do not have an opening
statement. If I could be so bold as to request to introduce
some of the members of my family who are here today.
Chairman Leahy. Of course. Please. Please do so, sir.
Judge Vanaskie. I'm awfully proud to say that my mom, who
will be 86 years young later this month, is here with us today,
Delores Vanaskie. I know my dad, John, is here with us in
spirit, the World War II Pearl Harbor survivor, a World War II
veteran who was a great influence on us all.
My wife, Dot, is here. Dot is a preschool teacher back in
Scranton, Pennsylvania. Joining us are my daughter Diane, who
is an English teacher--high school English teacher--in
Massachusetts, along with her husband, Todd Mulligan, our son-
in-law.
Our son Tom is with us as well. He's a recent summa cum
laude graduate from the Washington College of Law at American
University, and now clerking for Hon. Royce Lamberth, Chief
Judge of the D.C. District Court.
I know my daughter Laura, and architectural historian and
architect/designer in Southern California is with us by
webcast, and I want to commend the Committee for making these
proceedings available, and so accessible and so transparent.
Also with me today is my oldest brother, Dr. Michael
Vanaskie, a child psychologist in Concord, New Hampshire, and
my sister, Mary Lou Osevala, who runs a cardiac care unit at
the Hershey Medical Center, and with her is her husband, Ron. I
have a number of friends and others, and workers who are with
us here today as well, including Joe Gaughan, Marty Pane, Tawny
Alvarez and her husband Greg, Tom Brown, who practiced law with
me for a long time, Kyle Elliott, one of my current law clerks,
Shintaro Yamaguchi, who was a former law clerk of mine, and
others, and I thank them for being here.
Chairman Leahy. Would they all please stand up, the ones
just introduced by Judge Vanaskie. Boy, you sure know how to
pack a room.
[Laughter.]
Chairman Leahy. Thank you all for being here. I am not
singling anybody out particularly, but having your mother here
must be of particular pleasure. I know, to have at least my
first two terms in the Senate, my parents there was very
special, both for them and for me.
Judge Vanaskie. It certainly is, Senator. It was certainly
special to have our father, my dad, with us 15 years ago when I
had my first confirmation hearing.
Chairman Leahy. I was going to say, that was--I know the
record showed that he was there, and I appreciate that.
Now, the courts, Judge, as you know as well as anyone, with
your extensive experience on the bench, are the one
undemocratic branch of our government--undemocratic in the
sense that you're appointed and that's it, you're there for
life. So I think that they have a special duty to the American
people, especially the people who have the least amount of
power and least amount of protection.
Now, you have had 15 years on a trial court, a very active,
real one. I've read the background of the cases you've held,
and all. What has that done to teach you about the difference
in backgrounds in people and the need to be sensitive to them?
Judge Vanaskie. Well, it's taught me a lot, Senator. It's
taught me a lot in terms of being sensitive to the different
backgrounds that people bring, to the different circumstances
in which they find themselves that result in a controversy,
being in a court of law. I come from a blue collar background
and so I'm certainly sensitive to the fact of economic
deprivation.
But more importantly, I've learned a lot about cultural
differences that are brought to bear on the cases that must be
adjudicated. I've learned that you must try to understand that
those differences exist in looking at the motivations of those
who appear before you. So I think, if anything, it's caused me
to be more sensitive to things that, as a practicing lawyer,
maybe I didn't pay enough attention to, sir.
Chairman Leahy. Well, even as a practicing lawyer, did you
have cases where somebody had to stand up for what would be
considered the less powerful against the more powerful?
Judge Vanaskie. I did, Senator. I accepted court
appointments. I represented an inmate who was challenging the
legality of long-term administrative segregation. I was
appointed by the Court of Appeals to argue that matter before
the Court of Appeals and brief that. I represented individuals
in employment discrimination cases, both in terms of gender
discrimination--a woman who had applied to become a police
officer and had scored the highest on the civil service exam
but was not selected, and we were successful in that endeavor.
I represented individuals in age discrimination cases,
including my father in an age discrimination case.
Chairman Leahy. Well, Judge, you also--I've noticed in
recent decades we've had a very activist Supreme Court,
especially in the last 10 or 15 years. They've struck down an
unprecedented number of Federal statutes, most notably several
designed to protect the civil rights of Americans beyond
Congress' power under Section 5 of the Fourteenth Amendment, as
far as Flores v. City of Boerne.
Senator Specter, I, and several others have talked about
the Supreme Court basically legislating. During the argument on
the Voting Rights Act, it looked like some were about to strike
down a key provision on the Voting Rights Act. There was a very
significant outcry across the country and they limited, from
what appeared from their questions, what they were going to do.
But they, in recent decades, struck down statutes as being
outside the authority granted Congress by the Commerce Clause,
such as U.S. v. Lopez, U.S. v. Morrison, and then in 2005 we
have Gonzalez v. Raish. What's your understanding of the scope
of Congressional power under Article 1 of the Constitution,
particularly the Commerce Clause. I fully understand that as a
Court of Appeals judge, you are bound by decisions of the
Supreme Court. But what is your understanding of Congressional
power?
Judge Vanaskie. Well, Senator, in reference to the Commerce
Clause, my understanding of Congressional power is that it is
extremely broad and that deference must be given to
Congressional judgments based upon Commerce Clause powers,
supported by findings of fact, so that in my judgment, the
power is extremely broad.
Chairman Leahy. We have heard nominees, especially for the
Supreme Court, speak of reliance on stare decisis,
understanding of course the Supreme Court can overrule even
their past decisions. But would you please give me your
philosophy on stare decisis?
Judge Vanaskie. Yes, Senator. With respect to stare
decisis, I believe that the stability of the law depends upon
lower courts following the pronouncements of higher courts, and
that stare decisis is an important, important principle in our
system of justice. Litigants and the public need to know that
they can rely upon courts following precedents that are
controlling or governing in a particular situation, and so it's
a bedrock principle, as far as I'm concerned, of our system of
justice, and that is that stare decisis is to be--is to be
respected. I think that any approach to the decision of a case
has to--has to take that into account, has to recognize that.
Chairman Leahy. Thank you. You know, I'm always looking at
the question of checks and balances. We have the Congressional
check, we have Congressional oversight, but we also have the
courts as checks against abuse of executive or Congressional
powers. You'll be in a stronger position in the Court of
Appeals. I assume, based on everything I've heard about you,
everything I've read about you, that's a responsibility you're
willing to take on and exercise. Is that correct?
Judge Vanaskie. It is a responsibility that I am willing to
take on and exercise, Senator, but it's also one that I
recognize, the authority has to be exercised very carefully and
only under very extreme circumstances.
Chairman Leahy. Thank you very much, Judge.
Senator Sessions.
Senator Sessions. Judge, congratulations on your
nomination. To follow up on Senator Leahy's questioning, you
recognize, do you not, that the Constitution is the supreme law
of the land and you're bound by that?
Judge Vanaskie. Absolutely, sir. I took an oath to defend,
obey, and show true faith and allegiance to it.
Senator Sessions. And as a Court of Appeals judge, you're
bound by the plain holdings of the U.S. Supreme Court with
regard to the Constitution.
Judge Vanaskie. Yes, sir.
Senator Sessions. Judge, in 2007, you spoke before an adult
education class regarding the current sentencing regime and the
disparity between crack and powder cocaine. I agree with you
that that disparity is too great and have offered legislation
for almost 10 years now to fix it, and maybe this year we will
be able to do that.
In your remarks, though, you suggested that the
International Convention on the Elimination of All Forms of
Racial Discrimination, which prohibits signatories from having
laws that have ``an invidious discriminatory impact regardless
of intent'' could be used to challenge that Congressionally
passed law.
You then cited Supreme Court cases of Lawrence v. Texas and
Roper v. Simmons as a precedent for that. And with respect to
Lawrence you said, talking about the Supreme Court in Lawrence,
``The court utilized international law to strike down an unjust
domestic statute.'' And with respect to Roper you said,
``Because of the overwhelming international consensus
prohibiting this practice, the court found that it violated the
Eighth Amendment'', Roper being the death penalty for minors,
is that correct?
Judge Vanaskie. That's correct, sir.
Senator Sessions. Well, these were established laws of the
United States. As the crack/powder--I feel like we need to fix
it, but we haven't been able to get it done. But do you think
that if you feel like a statute is unjust, that you can look
around the globe and see if you can find a global opinion and
that that would justify you striking it down?
Judge Vanaskie. Senator, thank you for that question. No, I
don't think that if I feel a law is unjust I could look around
to see how that particular matter has been handled by other
foreign nations. In the context of that particular talk I gave
at a class, my reference to the International Covenant on
Elimination of All Forms of Racial Discrimination was from an
academic perspective and was just suggesting a type of argument
that may be made, recognizing that in the intervening years the
Supreme Court has made decisions in the crack cocaine area that
have changed how judges may approach that particular disparity
in terms of the 101:1 ratio.
So, no, sir, Senator. I do not believe that you can,
because you feel a law is unjust, look to international
sources.
Senator Sessions. Well, you know, when they talk about
``overwhelming international consensus'', first, I don't know
there is one on this subject. And usually when people say that,
they usually mean somewhere in the world they can find some
people who agree with them. No surveys are done on this. We
also make reference to the world community. I'm not sure they
call a roll and have the world community vote. People just say
``the world community thinks this and that.''
I just would--I'm glad--I think your answer is respectful
of the Constitution. I hope--I believe--it is on what you just
said. But I do think we have to understand that judges, do you
not agree, regardless if there is a world opinion contrary,
your obligation, your oath is to render your verdict under the
Constitution of the United States.
Judge Vanaskie. I understand that, sir.
Senator Sessions. You also said in a speech, ``I also
propose that the rule of law is best preserved by a model of
judicial restraint, and that the executive and legislative
branches are in the best position to make policy judgments.''
Do you still stand by that?
Judge Vanaskie. I still stand by that. Yes, sir.
Senator Sessions. Good. And you stated that judicial
restraint is intended ``to assure that decisions are not based
upon personal values or preferences but are instead made
according to law,'' and I think those are good statements.
Thank you, Mr. Chairman. My time is up.
Chairman Leahy. Thank you, Senator Sessions.
Senator Kohl.
Senator Kohl. Judge Vanaskie, although you're bound by the
precedent of your circuit and the precedent of the U.S. Supreme
Court, as a Federal judge you will be called upon to decide
cases where there is no precedent or where the precedent does
not clearly determine the outcome. How do you intend to
approach these kinds of cases?
Judge Vanaskie. I intend to approach those kinds of cases,
Senator Kohl, in the way that I would approach any particular
issue: first, with utmost impartiality; second, with careful
attention to the language that has been chosen at the
instrument that is under consideration, the document, whether
it be the Constitution, or a statute, or a contract; the
apparent purposes of the instrument in question; the parallel
provisions that may exist in that particular instrument to try
to understand what may be intended by the language that has
been used in that particular instance that's under
consideration; the precedent that may be analogous to it, or
precedent from other jurisdictions that may help to form a
better understanding--when I say ``other jurisdictions,'' other
courts of appeal is what I'm referring to--and all of those
factors, as well as traditional understandings, traditional
sources of laws.
Senator Kohl. All right.
How would you describe your judicial philosophy?
Judge Vanaskie. I would describe, Senator Kohl, my judicial
philosophy along those lines, that is, one where, first, it is
important that the jurist approach every matter, both with
impartiality and the appearance, the utmost appearance of
impartiality, fairness, and even-handedness and openness,
receptiveness to considering the arguments of each party that
is presented to you for purposes of understanding the argument
and making sure that each litigant understands they've received
a fair hearing, and left with the understanding that,
regardless of the outcome, they've been treated with the
respect and fairness to which they're entitled.
Senator Kohl. Judge Vanaskie, you've been a trial court
judge for 15 years now. If you're confirmed as an appellate
court judge, you'll be sitting on panels of three judges, and
in order to form a majority opinion, will need to convince at
least one other judge to agree with you. How will you approach
this difference in decisionmaking? How will you seek to reach
consensus with your colleagues?
Judge Vanaskie. Thank you, Senator Kohl, for that question.
I've thought a lot about that. I've had the occasion now to
sit, by designation on the U.S. Court of Appeals for the Third
Circuit, three times in the last 3 or 4 years, so I've been in
that position where I have engaged in the discussions where an
attempt is made to reach common ground on particular issues. I
would try to use the power of persuasion.
My analysis of the facts and my understanding if the law,
in order to try to reach a majority, or preferably unanimous
conclusion with respect to the matter. Failing that, if I'm
unable to convince another person, then I hope to have the
courage to write an appropriate opinion that expresses my point
of view.
Senator Kohl. Very good.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Specter.
Senator Specter. Judge Vanaskie, again, congratulations on
your nomination, and congratulations on your outstanding
career. It's nice to have so many of your friends and family
with you today to share in this honor. It's a very nice day for
you, your family, and for Pennsylvania.
When you talk about the judicial role to interpret rather
than to make law, those concepts have been amplified on a
longstanding debate between original intent as to what the
founding fathers meant and what the drafters of the amendments
meant, contrasted, as Palko would say, with the changing values
of a society.
It comes into sharp conflict, say, with original intent on
the Fourteenth Amendment, adopted in 1868 on equal protection,
at a time when the Senate galleries were segregated and the
Senate voted for equal protection. But no doubt they didn't
have integration in mind on the segregation.
Now, you may not be called upon to decide cases exactly in
that framework, but if you were, how would you balance those
considerations of evolving societal values contrasted with
original intent?
Judge Vanaskie. Senator Specter, that is an extremely
interesting question and one that certainly there is tremendous
amount of debate in academia. From a judge's perspective, I
start with an understanding that the Constitution is to be an
enduring document. It is one that is to be interpreted, first
with an effort to understand its terms, the apparent purposes
behind particular provisions.
Senator Specter. Would that enduring document include the
intent of the founding fathers over societally evolving values?
Judge Vanaskie. I think, Senator, to answer your question,
it would be an attempt to understand how the founding fathers
would have intended the constitutional provision to be applied
in the current setting.
Senator Specter. Judge Vanaskie, have you come across the
Doctrine of Proportionality and Congruency in an evaluation of
the adequacy of a congressional record? It used to be
sufficient to have a rational basis, but more recently the
Supreme Court has said the standard is ``proportionate and
congruent''. I've been trying to figure out what that means.
Could you help me?
Judge Vanaskie. I'm afraid I cannot, Senator, as I am not
familiar with that.
Senator Specter. Well, Judge Vanaskie, as bright as you are
and as excellent as your record is, if you are familiar with
it, I don't know your answer would be any different.
[Laughter.]
Senator Specter. Have you confronted the situation where
there have been circuit splits? The Third Circuit has not
ruled--and I ask this question in the context of the Supreme
Court having turned down circuit splits. I pressed for a long
time to require the Supreme Court to be televised, and I'm
about to modify that approach with a sense of the Senate
resolution to urge the Supreme Court to accept television, to
have some transparency and accountability.
You have lifetime appointments and you have virtual lack of
knowledge anywhere on the intricacies of the Supreme Court,
unless you're really good at reading footnotes. There are many
circuit splits where the court doesn't decide it, citizens were
treated differently depending on where they live, and in other
circuits which have not decided the district judge would be
battling, should I follow the Fourth Circuit or the Eleventh
Circuit. Have you faced that problem?
Judge Vanaskie. Senator Specter, I certainly have faced
that problem.
Senator Specter. Do you like it?
Judge Vanaskie. I do not like it, sir, because now I'm
trying to determine what the result would be of our Court of
Appeals when it finally gets there.
Senator Specter. Well, now I've set you up for the real
question of this sequence, Judge Vanaskie, and that is your
sense of television. I've been questioning many--television in
the court.
[Laughter.]
Senator Specter. Senator Leahy and I have discussed the
subject for decades, eons, and twice the Committee has voted
out legislation, once during my tenure as Chairman, once during
Senator Leahy's tenure as Chairman, and it's been introduced
again. I've decided to take a little different approach because
Judge Souter has left the bench, and he said cameras would roll
in over his dead body. There's a great reluctance in the court
to go against somebody's view.
Judge Sotomayor, Justice Sotomayor, testified about a good
experience she had had. Do you think that television in the
Supreme Court would inhibit or materially affect the conduct of
the lawyers or the justices, balanced against the insight that
it would give to the public as to this great institution which
has the last word on so many tremendous decisions without any
transparency, and lifetime appointments? A pretty good
insulator. What do you think?
Judge Vanaskie. Well, Senator Specter, it certainly is not
my call to make. If you are asking for my personal opinion, I
happen to favor more transparency in court proceedings in
general. I know what the Judicial Conference policy is, and I
served as a member of the Judicial Conference. I know the
policy is to prohibit televised court proceedings. But I think
we go a long way to opening up and promoting understanding of
the workings of the courts if we were more open-minded with
respect to that particular matter.
Senator Specter. It's hard to do, Judge Vanaskie, but
you've just won my more enthusiastic support.
Chairman Leahy. I think, Senator Specter, we had already
marked him down here as tentatively leaning your way.
[Laughter.]
Senator Specter. The Chairman understates things.
[Laughter.]
Senator Specter. I have one final question, Mr. Vanaskie,
which I don't think will be determinative of your nomination.
But I note in your resume you were inducted into the Shimoken,
Pennsylvania chapter of the Pennsylvania Hall of Fame,
recognized as the First Academic All-American in football. Two
questions. What does that mean?
[Laughter.]
Senator Specter. And second, how has it helped you in your
career?
[Laughter.]
Judge Vanaskie. The coal country has a proud tradition of
its athletics, and it was a great honor for me to be named to
be part of the Shamoken chapter of the Pennsylvania Sports Hall
of Fame for my career in football.
Senator Specter. Were you quarterback?
Judge Vanaskie. I was a defensive back. I was a safety, and
I returned punts and kick-offs.
Senator Specter. You played two ways?
Judge Vanaskie. In high school two ways, but in college
just one way.
Senator Specter. Thank you very much, Judge Vanaskie.
Chairman Leahy. I would note, Judge Vanaskie, in 35 years
on this committee, that's the first time I've heard that
question asked as to what you played, football.
[Laughter.]
Chairman Leahy. I would also note that while we tell you to
always be fair, and careful, and everything else, even on this
Committee I can make a mistake. I had not seen Senator Coburn
come in, and he should have gone, followed Senator Kohl. I've
already apologized to him, but I would note that for the
record. I'm rather scrupulous trying to protect everybody's
rights on this Committee.
So, Senator Coburn.
Senator Coburn. Well, welcome.
Judge Vanaskie. Thank you, Senator.
Senator Coburn. I have a few questions for you.
The first one I would ask, you just agreed that the power
under the Commerce Clause is very broad. Can you give me your
opinion as to what limitations the Constitution places on this
power to regulate interstate commerce?
Judge Vanaskie. Senator Coburn, that, again, is a very
interesting question and one that certainly divides the courts,
not only academic community. I'm not sure I can give you a
definition. I think part of the problem is trying to determine
where the line should be drawn.
Senator Coburn. How about the limitations that you would
see?
Judge Vanaskie. I suppose, Senator, in the abstract, there
must be--since it is the power to regulate commerce, there has
to be a determination as to when commerce is impacted by the
particular congressional enactment, if that is the found of the
authority for the congressional enactment. And I know there
have been Supreme Court decisions--they were mentioned, Lopez
and Morrison--which drew lines and determined that they were
beyond the authority of Congress under the Commerce Clause. I'm
not prepared, sir, to say that those were appropriately drawn.
Senator Coburn. That's fair.
The reason that question is important to me is, we're
debating health care bills that are going to mandate a fine, a
tax on individuals in this country if in fact they don't
purchase something that we think they should be forced to
purchase. So it may be something that's very much in front of
you in the next year or so, as I'm sure somebody's going to
challenge that if it gets through this institution.
I want to go to a couple of things that I go to with every
Circuit Court nominee, and it has to deal with the utilization
of foreign law. Can you state for me anywhere you find in our
founding documents, the Constitution, or even the Federalist
Papers, any authorization for a Federal judge to use a
consideration of what other countries think in their legal
system in terms of interpreting our codes, our Constitution,
and our treaties?
Judge Vanaskie. Senator, I couldn't cite to you anything in
the Constitution or in the Federalist Papers, but I don't
pretend to be an expert on the Federalist Papers, other than
perhaps 78 and 79 that deal specifically with the judiciary,
and I cannot think of anything that would be in there.
I do think, however, that when it comes to treaty
obligations, a common source of interpretation of treaty
obligations can be how other member nations have applied
certain provisions that may be an issue or that may not be
clear. I will say to you, Senator, that in one case I had I did
cite to decisions from other states--that was the Kazam case--
because at issue in that case was the Convention Against
Torture, whether, for example, in our case, whether diplomatic
assurance could be deemed reliable so as to enable a state to
return an alien, I looked to foreign--to authority of foreign
jurisdictions for purposes of deciding how other states have
handled diplomatic assurances. In that case, I found other
states recognized the authority of diplomatic assurances and
therefore we could recognize diplomatic assurances.
I looked at it from another perspective as well, and that
is what other states have done in terms of addressing the
argument that there could be no impartial review of the
reliability of a diplomatic assurance, and looked at, when the
argument is made--when the argument in our case was made that
it would interfere with the executive's foreign relations
prerogative, and I did rely on authority not in terms of any
binding precedent but in terms of understanding--certainly it
would never be binding, but in terms of understanding how other
jurisdictions, how other states had considered that particular
issue.
Senator Coburn. Fair enough.
Do you believe that there is a--believe the right to self-
defense is a fundamental right? I'll put it in doctors' terms.
Do you believe I, as an individual, have a fundamental right to
defend myself, my body, my person?
Judge Vanaskie. I think, in terms of a right of self-
defense, it depends upon the context and circumstances and I'm
not prepared to answer that particular question in terms of the
hypothetical you gave in terms of an infant. I haven't--I know
it is a very important issue and one that may come before the
court.
Senator Coburn. I'm not sure I mentioned infant. I'm just
talking about me personally. Do I have a personal, fundamental
right to self-defense?
Judge Vanaskie. I think if you're----
Senator Coburn. Sitting here right now.
Judge Vanaskie. I think if somebody attacked you, you would
have a fundamental right of self-defense.
Senator Coburn. All right. Thank you.
Do you believe the right to bear arms is a fundamental
right?
Judge Vanaskie. I--I think it is a right that has been
recognized by the U.S. Supreme Court. I think how that right is
applied in particular instances with respect to particular
types of weapons is an issue that still needs to be addressed
and still needs to be resolved, and I think certainly there's
legislative authority in that area.
Senator Coburn. Okay. Thank you.
What principles of constitutional interpretation would you
look to in analyzing whether a particular statute--and you can
think of any one that you've got--infringes on some individual
right guaranteed in the Constitution? Just kind of walk me
through your thought process or the principles that you would
use to lay that out and discover that for yourself and apply
the law.
Judge Vanaskie. With respect to a law that implicates a
particular right, I would look to the Constitution to see what
purpose was intended to be served by that particular right, how
it was valued, how the legislative enactment impacts on the
exercise of that right, does it substantially burden the
exercise of that right or is it an insubstantial burden? Is
there a way to interpret the statute in such a way that a
constitutional decision need not be made, if it can be
interpreted that way, to reconcile the legislative provision
with the constitutional right at question.
Ultimately, however, if under the existing--and I certainly
would start with existing precedent and what existing precedent
tells us to do in terms of our analytical framework and analyze
it in that way, ultimately if I were to conclude that the
fundamental right is infringed by the particular provision,
then I think my oath to be faithful to the Constitution would
require that result.
Senator Coburn. Thank you.
Mr. Chairman, if I might, just one more. I've got to leave.
Well, I was supposed to leave at 3:00 p.m. But one of the
problems--and you may have a lot of experience in that--is when
you look at some of the statutes that we pass, is trying to
determine congressional intent. I'm just wondering, how often
do you read the statements, the majority opinions, the report
language for a lot of these statutes that we pass? Do you
frequently look at that to see what the majority/minority
opinions were on that in terms of the intent of what we're
trying to accomplish rather than what the statute actually
says?
Judge Vanaskie. Senator, I try to start and hopefully
confine myself to the language of the statute itself. If the
language of the statute is clear, there's no need to go beyond
it. It should be applied as written.
Senator Coburn. But if it's not clear?
Judge Vanaskie. If it's not clear, then I would go to other
sources of legislative interpretation, considering the overall
purpose of the statute, considering the structure, other
parallel provisions. I drafted an opinion in an environmental
case back when I sat on the Third Circuit in the 1990s that did
just that, looked at traditional understanding. As a last--I
think, Senator, as a last resort you can consider, and should
consider, legislative history, but it should not be the
starting point of the analysis.
Senator Coburn. All right. Thank you very much.
Thank you for the indulgence.
Chairman Leahy. No, thank you, Senator Coburn. I appreciate
you being here.
Unless there are further questions, Judge Vanaskie, thank
you very much for being here. I know you--it's going to empty
the room a little bit when you leave here, but we will stand in
recess for about 3 minutes while you have a chance, and your
friends and family, to leave, or stay if you'd like, but you
probably have other things to do, to leave, and we'll re-set
the table for the next panel.
Judge Vanaskie. Thank you very much, Senators. Thank you.
[Whereupon, at 3:07 p.m. the hearing was recessed.]
AFTER RECESS [3:12 p.m.]
Chairman Leahy. If we could reconvene. Judges Reiss,
Butler, Kallon, Espinel, if everybody can just take the seats
that have your names in front of them. Please sit down.
For the introduction of Mr. Kallon, I would yield to my
friend from Alabama, Senator Sessions.
PRESENTATION OF ABDUL KALLON, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ALABAMA BY HON. JEFF SESSIONS, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I am pleased to
introduce Mr. Abdul Kallon, who's been nominated to the U.S.
District Court for the Northern District of Alabama.
He's had a distinguished law career. He received his
undergraduate degree from Dartmouth in 1990, grew up in this
area of the country. He got his law degree from University of
Pennsylvania in 1993. Following law school, Mr. Kallon clerked
for Judge U.W. Clemon, Chief Judge of the Northern District of
Alabama, who I see here with him in support, I know, of Mr.
Kallon. So, that's the same court for which he's being
considered today. I'm sure Judge Clemon is pleased to have
someone of his caliber replacing him on the bench.
Following his clerkship, Mr. Kallon joined the law firm of
Bradley, Arent, Bolt, Cummings in Birmingham, which I suppose
they would say was a premier law firm in the State, certainly
it was the biggest law firm in the State for many years, and I
guess that it still is. He became an associate in 1994 and
became a partner, and continues to practice with Bradley Arent
today.
Mr. Kallon's practice has focused primarily on labor and
employment law. He received some impressive accolades for his
work. In both 2007 and 2008, he was listed in the Best Lawyers
in America for Labor and Employment Law, and in each of the
last 3 years was listed in Chamber's U.S.A. America's Leading
Lawyers for Labor and Employment Law.
In addition to his impressive legal credentials, he's been
active and dedicated to the community. For the past 9 years
he's worked closely with Big Brothers and Big Sisters. He's
also been a member of the board of directors of Children's
Village since 2004, and the board of directors of Girls, Inc.
of Central Alabama since 2007.
Mr. Chairman, I talked to a number of lawyers in the
Birmingham area who know Mr. Kallon and they all speak
universally very highly of his integrity and judgment and legal
ability.
Chairman Leahy. Well, thank you very much, Senator
Sessions.
I would note that Representative Artur Davis has also given
me a statement that, by consent, we'll put in the record,
praising Mr. Kallon. I should also say, as you have, praises
Judge Clemon. To make sure that the Congressman knows that the
judge is here, and make sure also we get a copy of the
statement both to Mr. Kallon and to Judge Clemon, that will be
part of the record.
[The prepared statement of Representative Davis appears as
a submission for the record.]
Chairman Leahy. I'm going to ask the four of you to stand.
I'll swear you in and we'll do introductions of family.
[Whereupon, the witnesses were duly sworn.]
Chairman Leahy. The record will show that each one said ``I
do''.
Beginning with you, Judge Reiss, I know that you have
family members and friends here. As this will go someday in the
Reiss family archives, would you please tell us who is here,
and ask them if they would stand?
Judge Reiss. Thank you, Chairman. I brought with me today
my husband, Kevin Hastings, my daughter Lilly and my daughter
Tess. My oldest daughter, Mia, is taking mid-terms at McGill
University at this point in time. I also have with me my oldest
sister, Joan Wry, and my youngest sister, Katherine Brunelle,
my brother, James Reiss, and his daughter, Kendell Reiss, who
is my godchild. I am very happy to have Judge William Sessions,
III, present with me. If confirmed, he will be my colleague. He
has been encouraging, supportive, and helpful every step of the
way.
Chairman Leahy. Thank you very much. Thank you all for
being here. I might note parenthetically that Judge Sessions
has said very nice things to me about you.
Mr. Butler, please, would you tell us who is here from your
family?
Justice Butler. Thank you, Mr. Chairman. I have here with
me today my wife, wonderful wife of 28 years, Irene, our oldest
daughter, new attorney, Jessica Butler. I have with us her
daughter, our granddaughter, Aliana, who is a first grader in
Milwaukee. We have with us my mother, very proud mother,
Gwendolyn Prescott Johnson. We have with us her sister, my
aunt, Dr. Jane Prescott Brown. I also have here two friends,
one from the University of Wisconsin Law School where I teach.
Professor Alta Charo is with us today, and we have from the
Department of Justice, the Office of Tribal Justice, Deputy
Director Kathy Zebell as well.
My brothers could not be here, Anthony and Eric. Anthony is
a recovering patient at this point in time, the same with my
stepdad, Roy, and the same with our daughter, youngest daughter
and our stepson Harry and Erica. I am convinced that they are
watching by webcast, and we appreciate that you are
broadcasting these proceedings here today. In spirit, we also
have looking down from above, my father Louis and my sister
Judith.
Chairman Leahy. Well, thank you very, very much. Thank you
all for being here. I would note something that, even as good a
lawyer as you are, you may not have noticed. In the
Constitution there is hidden a requirement that grandparents
are supposed to spoil grandchildren.
[Laughter.]
Justice Butler. And we try very hard, Senator.
[Laughter.]
Chairman Leahy. Mr. Kallon.
Mr. Kallon. Good afternoon, sir.
Chairman Leahy. And do you have family members here that
you would like to introduce?
Mr. Kallon. I do. I also have a lot of friends here as
well, since I grew up in this area. With your indulgence, let
me first introduce my mom, Mrs. Hawah Bah, who started this
journey in 1978 when she emigrated to the United States. My
sister, N'Dorah Tarawally, is here as well. My aunt, Odette
Davis is here. My uncle, Alimama Bangura is here. I've got a
list of friends here. A particular individual, Senator
Sessions, who came all the way from Alabama on very short
notice, and at this point I would like to ask all of my friends
who are here today to please stand as well for me to say thank
you to them personally for coming here on very, very short
notice.
Chairman Leahy. Wow!
[Laughter.]
Mr. Kallon. Thank you.
Chairman Leahy. We're going to need bigger rooms.
[Laughter.]
Chairman Leahy. Thank you. After, if we can have a list of
the names, we can add the names to the record.
Mr. Kallon. Thank you.
Chairman Leahy. Thank you.
Ms. Espinel, I know you have friends here, some very close
to this Committee. Would you like to tell who's here from your
family?
Ms. Espinel. Thank you very much, Senator. I have here with
me today my mother, Rosalie Cornelius, my mother, Jean Lord
Espinel, my father, Dr. Carlos Espinel, my wonderful husband,
John Stubbs, my 2-year-old son, Joachim Stubbs, who I believe
is entertaining himself in the hallway at this moment. I also
have here my very dear friend Mario Corea and my friend Lindsay
Levin. My brother, Dr. Francisco Espinel, was not able to be
here, but I know he is watching. And somewhere, I believe,
fairly close by is my dear sister, Selena Espinel.
Chairman Leahy. Thank you. Thank you all very much.
Beginning with you, Judge Reiss. You served as a Vermont
State court judge for the past 5 years, trial judge for the
past 5 years. You've previously worked in private practice 14
years. The obvious difference is, you as an experienced lawyer
know, between the State courts and the Federal courts, but
there are other things that you would bring with it. What do
you think would be one of the most important things you would
bring from your experiences as a State court judge that you
would be able to transfer to experience as a Federal court
judge?
Judge Reiss. When I became a State court judge I was amazed
at the awesome responsibility that I had undertaken. I really
thought a lot about it, am I the right person to do this? I was
surprised at the magnitude of the decisions I was making and I
really committed myself to being the best judge I could be. I
think the transition to Federal court will carry with it that
transition and I will understand the awesome responsibility
that I'm undertaking and the importance of careful attention to
the litigants in front of me, careful preparation. So I think I
understand that this is a very important position, it's very
powerful, and it's so important to take it seriously.
Chairman Leahy. You also, in private practice, represented
plaintiffs under our Right to Know law in Vermont to get the
information from Governor Dean--former Governor Dean's daily
schedule during the time he was running for President. You used
the Vermont Access Public Records Act. The Vermont Supreme
Court ruled in your favor. Now, as one who has written
significant parts of the Freedom of Information Act, one of the
strong supporters of it, I ask this question.
You're going to be called as a Federal judge, possibly, to
rule on requests under the Freedom of Information Act. Will you
be able to take each case on its own and do the balance between
the--oftentimes the balancing factor between the public's right
and interest to know with the competing interest possibly of
withholding information to either protect one's privacy or
national security. Do you feel you can do that?
Judge Reiss. I do. I understand that it is a balance. I
think we start with the presumption that freedom of information
is important in a democratic society, that we have open
courtrooms and open records, and that we look carefully at the
balancing test, narrowly apply it, and make sure that
information that is kept from public scrutiny is information
that should be kept from public scrutiny because of a
compelling competing interest.
Chairman Leahy. As a trial judge, you've had occasion to
issue rulings involving Miranda warnings. You have any problem
facing the fact you may still be issuing such rulings in the
Federal court?
Judge Reiss. I don't. I would say that, even in a State
court, if you were in a district court rotating, Miranda issues
come up all the time, that it is a significant area of
litigation in criminal defense. I anticipate that would
continue in Federal court.
Chairman Leahy. I know your answer to this question has
been discussed. Would it make any difference to you who comes
into your courtroom, plaintiff or defendant, what their
political background, economic background, or even the nature
of their case might be?
Judge Reiss. No, it would not.
Chairman Leahy. I believe you.
Justice Butler, when you were on the Wisconsin Supreme
Court, you issued opinions. You had the constraints of
Wisconsin law, of course, the Wisconsin constitution, the U.S.
Constitution, prior decisions. And if you are confirmed here,
do you have any problem with the fact that your circuit, the
Seventh Circuit, the decisions of the Seventh Circuit and the
U.S. Supreme Court would be binding on you?
Justice Butler. Not at all, Senator. My understanding is
that, if confirmed by the Senate and appointed by the
President, my job as a District Court judge would be to
interpret and apply the law based on the precedent set forth
first by the U.S. Constitution, and then by the superior
circuit, in this instance, the Seventh Circuit Court of
Appeals.
Chairman Leahy. Mr. Kallon, you've had an extensive and
very admirable background. But also, because of all the
different cases you've handled and others, there may well be
instances where you have to recuse yourself on the Federal
bench. How do you interpret the Federal recusal statute? Can
you give me some specific examples of the type of cases you
would feel, certainly in the early part of your career in the
District Court, that you would have to recuse yourself from?
Mr. Kallon. Certainly, sir. With respect to cases, I think
the easiest ones will be, any that I'm working on now,
obviously, I cannot hear, as a judge. But other than that, I
don't foresee any particular subject being areas where I would
need to recuse myself. With respect to recusal, obviously if
I've got a financial interest in a particular company and it's
it front of the court, I'll recuse myself. And if the lawyers
believe that because of my relationships with a particular
company or because of a particular set of lawyers, then we will
deal with that under the rules set forth by the courts.
Chairman Leahy. And Ms. Espinel, I know you have a
statement for the record which will be made part of the record.
[The prepared statement of Ms. Espinel appears as a
submission for the record.]
Chairman Leahy. I have just one question, and I neglected
to ask each of the members of the panel if they had an opening
statement they would wish to give.
But if you are confirmed as Intellectual Property
Enforcement Coordinator, or IPEC, would you be willing to
appear before this Committee and testify?
Ms. Espinel. Yes, I would. As you know so well, this role
was created and defined by legislation and this position is
fully accountable to Congress. Among the duties I would have,
if I were confirmed, would be to submit an annual report to
Congress that would report on the activities of the interagency
Committee that I would chair. If I am confirmed, I look forward
to working closely with this Committee and ensuring that you
receive information that is both timely and useful.
Chairman Leahy. Good.
Judge Reiss, did you have a statement that you wished to
make?
STATEMENT OF CHRISTINA REISS, TO BE U.S. DISTRICT JUDGE FOR THE
DISTRICT OF VERMONT
Judge Reiss. I would like to thank President Obama,
Chairman Leahy and the members of the Senate Judiciary
Committee. I'm very honored to be here.
Chairman Leahy. Thank you. That statement won't hurt you a
bit.
[Laughter.]
Chairman Leahy. Justice Butler.
STATEMENT OF LOUIS B. BUTLER, JR., TO BE U.S. DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF WISCONSIN
Justice Butler. Thank you, Senator. I would also like to
thank the President for his confidence in nominating me as a
District Judge for the Western District of Wisconsin. I would
like to thank my State Senators for their wonderful
introduction here this afternoon. I would like to thank this
Committee, the Chair, and the Ranking Member and other members
of the Committee who are here who are considering this
important nomination. That's pretty much it. Thank you.
Chairman Leahy. You're represented by two wonderful
Senators.
Mr. Kallon.
STATEMENT OF ABDUL K. KALLON, TO BE U.S. DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF ALABAMA
Mr. Kallon. Likewise, Chairman. I'd like to thank the
President for the nomination, this Committee for these
hearings, and Senator Sessions for the great introduction.
Thank you all.
Chairman Leahy. Senator Sessions, I know, has rearranged
his schedule just so he could be here, and I appreciate both
him being here and his introduction of you.
Ms. Espinel, as I said, your full statement will be placed
in the record, but is there anything you wish to add to it?
STATEMENT OF VICTORIA ANGELICA ESPINEL, TO BE INTELLECTUAL
PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE OFFICE OF THE
PRESIDENT
Ms. Espinel. I would say that I would like to thank the
President, I would like very much to thank you, Chairman Leahy
and the members of the Committee. I am greatly humbled to be
here, and I want to thank you for your leadership in creating
this position, and then supporting the intellectual property
that supports our country.
Chairman Leahy. Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
I appreciate all of you that have been nominated. This is,
I guess, the one opportunity we have to ask some questions.
Members will be allowed to file written questions, and you'll
receive those. I may submit some myself; I suspect that I will.
You are, at least with regard to the judges, being considered
for a lifetime appointment.
I hope you know, and I think you do, that once you assume
that role your own personal sense of discipline, responsibility
and integrity is what constrains you from abusing the office,
because you can't be voted out of it and wrong decisions don't
get you impeached. So we look for that and expect that out of
each one of you.
You take an oath, judicial nominees, that you will do equal
justice to the poor and the rich, that you will conduct your
office impartially, and that you will serve under the
Constitution and laws of the United States. So I guess I would
ask, first, each one of you, do you understand the import of
that oath? Do you commit yourself to it, and will you be able
to take it faithfully, if you're given that opportunity? Ms.
Reiss.
Judge Reiss. I would fully comply with the oath. It would
be an honor to do so. It is my opinion that a judge needs to be
a role model, both inside and outside the courtroom, and that
people look to judges as an example of the judiciary. It may be
their only experience in the courtroom. We uphold the
Constitution and we treat people respectfully. I take that very
seriously. Thank you.
Senator Sessions. Justice Butler.
Justice Butler. Yes, Senator. I agree with Judge Reiss,
this is a very important position and I think we are dedicated
to applying the Constitution and applying the laws equally and
fairly amongst any individuals that would appear before us,
rich or poor, or in any setting. It's our obligation to listen
carefully. After all, we're involved in dispute resolution when
people come into court. Listen carefully to the issues that the
parties present and make our determinations based upon the
facts and based upon the law.
Senator Sessions. Mr. Kallon.
Mr. Kallon. Senator, I concur with my colleagues. I
certainly will carry the oath faithfully, and I hope I have the
opportunity to do so.
Senator Sessions. Well, you know, we had a little stir over
the President's empathy standard in which he talked about the
heart and feelings as being part of the role of a judge. But
empathy is not a legal standard. Now, I don't know what kind of
standard it is, but it's not a legal standard. I recall, I
think I had here Judge Sotomayor's reference to it. She said it
was facts, not feelings, that decide cases, I think is
essentially what she said. So I just think those are important
concepts to keep in mind.
Mr. Kallon, you've practiced before these very judges that
you will now be colleagues with, if you're confirmed. Do you
have any thoughts about how you would conduct yourself,
remembering that you've been a lowly lawyer, for a number of
years practicing before the bench? Do you have any thoughts
about how you might conduct yourself in a way that brings a
good image to justice and to the court?
Mr. Kallon. Absolutely. I think I intend, essentially, to
carry on in the same manner. By that, I mean I've always
treated the courts and the litigants with the utmost respect,
even those individuals that I disagree with wholeheartedly.
I've always pointed out that you can win your case without
having to be disrespectful to the other side, and certainly as
a judge I think you can rule even with litigants who perhaps
may not have been as respectful as they need to be without
embarrassing someone in front of the other lawyers, and
certainly not in front of their clients, unless of course that
individual has, despite repeated warnings, refused to follow
the rules and the regulations of the court.
Senator Sessions. Well, I think we shouldn't forget the
difficulties lawyers have, too, in their days and the
legitimate interests that their clients have, and fairness.
Mr. Butler, in a campaign event entitled Young and Powerful
for Obama, you stated the following: ``While all judges have a
desire to interpret and apply the law, the cases that get to
the Supreme Court are the ones that have no easy answers. Thus,
the background, personal beliefs, and policy decisions of the
justices selected will influence how they vote on difficult
cases before them.''
Well, it seems to me that the ideal of American justice is
impartiality, as used in the oath, to achieve a degree of
objectivity so that your personal feelings don't cause you to
favor one litigant over another, but give fair justice down the
line, down the middle. How would you explain that statement
that you made?
Justice Butler. Well, Senator, I believe what I intended by
that statement is a recognition that, particularly in a court
of last resort, when you do have difficult cases that have to
be decided, perhaps where there is no precedent, where there is
no guiding principle, which is why the court took the case in
the first instance, it helps to have as many different
backgrounds and as many different perspectives in the room as
possible. For example, if you've got people that have criminal
background, people who have civil background in their practice
experience, people from different environments, different
upbringings.
I think just having every idea at the table and sitting
down and making a difficult decision when deciding how the law
should be applied, particularly in the absence of any
controlling or guiding principles, I think it would weigh in to
the thought processes--not necessarily the decision processes,
but the thought processes--that the judges will go through when
trying to decide how to apply the law and how to apply the
Constitution to various statutes.
Senator Sessions. With regard to the President's statement
on empathy, Justice Sotomayor, when asked about his standard,
replied, ``We apply law to facts, we don't apply feelings to
facts.'' I thought that was what a judge does.
Justice Butler. I agree with that, Senator.
Senator Sessions. But in your speech I just quoted from
earlier about allowing personal beliefs and policy decisions to
influence how judges vote, you say that's the main reason I
support President Obama. How do you explain the difference
there?
Justice Butler. Senator, when a judge makes a
determination, the first thing you look at, in my experience,
is the language of a statute, the language of a law that
applies. You look at whether or not there are any
constitutional implications that have to be decided. You look
at any prior precedent, the controlling precedent from higher
courts.
You look at--if there is no controlling precedent, you look
at various influential or persuasive precedents from other
jurisdictions, particularly if you're dealing in different
circuits, which we don't have in our State because everything
is precedential in Wisconsin, and then you have to make a
decision that will resolve the dispute in a fair and impartial
manner.
So the backgrounds, the different experiences that one can
bring to the table, whether it's practice experience or other
types, I think helps to expand the discussion in a conference
room, particularly when you're dealing with a collegial
decisionmaking body.
Senator Sessions. Well, these are difficult issues. I don't
think they're insignificant. In other words, I think you do
have to decide whether or not you have a commitment to a
certain group. In your speech, you said, referring to President
Obama, ``his commitment to the working people, the poor, and to
the country as a whole has been shown throughout his life''.
Well, but does that mean that you think a judge, instead of
doing ``equal justice to the poor and the rich'', has--since
you would have a commitment--more commitment to one or the
other?
Justice Butler. No, Senator. I think it's important for any
judge in any position to treat everyone equally, and
impartially, and fairly. For me, the importance of a courtroom
setting is a process question. One way that you can ensure that
everyone is treated fairly is to make sure that everyone is
treated with the same process--with the same process.
Senator Sessions. Well, everyone--I think we can--I do
believe that the legal standard and requirement of judges is
that we do equal justice to all parties, based on the facts and
not on personal feelings or beliefs.
I'm past my time. I might like to ask a few questions
later, but on a second round, Mr. Chairman.
Senator Kohl. Thank you so much.
Justice Butler, are you comfortable with the answers you've
given at this point?
Justice Butler. Yes, I am, Senator. Thank you very much.
Senator Kohl. Justice Butler, some have criticized your
``judicial activism''. On the Wisconsin Supreme Court, they
claimed that you thwarted the will of the State legislature for
the court majority's own policy views. Would you like to
respond to this criticism and explain your views about the role
of the court in interpreting the laws written and passed by the
elected legislative bodies?
Justice Butler. Thank you for the question, Senator. As a
member of the court, it's important to make decisions that
resolve the disputes of the parties that come before the court.
And any time parties come to court, you're dealing in a
litigation setting, at least 100 percent of the time 50 percent
of the people are going to leave the courtroom unhappy,
sometimes more. Not everyone is going to be satisfied with a
given decision, and many people have differing views and
differing descriptions of what judicial activism might be and
how it might be applied, who it might apply to.
For me it's always been taking the facts of a case and
applying the applicable law. I try to make decisions based on
the case that's before the court. I've done that in the 16
years I've served as a judge, 12 years as a trial court judge,
4 years on the Wisconsin Supreme Court. I understand and
recognize and accept that there will always be critiques of any
opinion from various parties that goes along with making
decisions, making tough decisions, but I've tried to make my
decisions based upon facts and based upon the law.
Senator Kohl. Thank you.
For the three judges who are up for promotion here today,
in the past many years there's been a growth in the use of so-
called protective orders in product liability cases. We saw
this, for example, in the settlements arising from the
Bridgestone-Firestone lawsuits. Critics of this argue that
those protective orders oftentimes prevent the public from
learning about the health and safety hazards in the products
that they use. In fact, a U.S. District Court for the District
of South Carolina passed a local rule banning the use of sealed
settlements altogether.
Do you believe that a judge should be required to balance
the public's right to know against a litigant's right to
privacy when the information sought to be sealed could keep in
secret a public health and safety hazard, and what would be
your views regarding that local rule in the District of South
Carolina on this issue, which bans the use of sealed
settlements altogether? We'll start with you, Judge Reiss.
Judge Reiss. Thank you. As a lawyer, I represented a number
of media entities: radio, television, newspapers. I start with
the presumption that the public has a right to know, that the
courtrooms are public and that full access to the courtroom is
important to ensure that they are just and impartial
institutions. I think any exception to that needs to be
extremely narrowly construed and it must be supported by a
compelling interest. So I do not see a role for broad-based
protective orders shielding large portions of cases from the
public scrutiny.
That being said, I am certain that there are certain
instances in which there is no relevance to the information or
it doesn't impact the public's right to know. It may be a trade
secret. I would look at that exception with the idea that the
presumption would be public access and that any exception to
that would be narrowly construed.
Senator Kohl. OK.
Judge Butler.
Justice Butler. Senator Kohl, I, like Judge Reiss, also
agree that you start with a presumption that a courtroom is a
public proceeding. There is a balancing that has to take place
in looking at, when a protective order is requested, whether it
should be applied in a particular instance. But like Judge
Reiss, it should be narrowly construed to determine whether
there's a compelling public interest that would override the
public right to know.
Senator Kohl. Judge Kallon.
Mr. Kallon. Senator Kohl, likewise. I will take a very,
very limited approach. Certainly there are privacy concerns at
play. That's one good route to perhaps grant a protective
order. If there are trade secrets that need to be protected,
that's another ground. But aside of those two arenas, I
definitely will hear the arguments that are made, but the
arguments will need to be extremely compelling for me to
foreclose the public's right to know about aspects of society
that they need to know about.
Senator Kohl. Thank you so much.
Chairman Leahy. Thank you.
Senator Feingold.
Senator Feingold. Mr. Butler, I just want to follow up with
something Senator Sessions was questioning you about. As U.S.
District Court judge, will you allow your personal belief or
policy preferences to override the law as set forth in Federal
statutes, or controlling precedents, or the Seventh Circuit, or
the Supreme Court?
Justice Butler. No, Senator, I would not. I don't believe I
did that as a member of the Wisconsin Supreme Court or as a
member of the Circuit Court or Municipal Court either. That is
not how I view a role of a judge.
Senator Feingold. Your most significant judicial experience
has been as an appellate judge on the Supreme Court of
Wisconsin, though you did have some experience as a trial judge
as well. How has your experience on the Wisconsin Supreme Court
made you better prepared to be a trial court judge at the
Federal level?
Justice Butler. Senator Feingold, my experience has been
varied, both in practice as well as on the bench. I've been
both a trial lawyer and an appellate lawyer and I've been a
trial judge and an appellate judge. From those various
experiences, I've had an opportunity to see litigation in a
variety of settings. I've had an opportunity to see different
difficult issues come into the court, either in a trial court
setting or an appellate court setting.
By sitting as an appellate court judge and having the
opportunity to overview the entire criminal justice and--
justice system as a whole, I've had an opportunity to gain
perspectives on how the system operates--operated within the
State of Wisconsin. I think the experience, both as an
appellate and trial judge, greatly benefited my background,
experience, and knowledge, and hopefully prepared me for the
awesome experience, should this Committee vote to submit my
name to the full Senate and should I be confirmed.
Senator Feingold. Justice, you've been a public defender,
but not a prosecutor. That puts you in a minority among
nominees to the Federal bench. Can you talk about the
importance of having good defense attorneys to our adversarial
system of justice, and how will that experience assist your
work as a Federal judge?
Justice Butler. Yes, Senator. As I have indicated, I
believe it's important to have all different types of
experiences, serving at various levels of the judiciary, for a
number of reasons. I mean, judges talk to each other, they go
to lunch together, they discuss issues together, and I think it
helps to know from an experiential basis how the various
decisions that are being made actually impact the people that
the decisions are being made for.
So I think it helps to have prosecutors, I think it helps
to have defense lawyers, I think it helps to have civil
plaintiffs' lawyers, civil defense lawyers serving at various
aspects of the judiciary. I think that's a beneficial thing for
all. As each of you have indicated, these decisions are
supposed to be made impartially and fairly and neutrally, but
it helps to have the various backgrounds at the table when
these decisions are being made.
Senator Feingold. Thanks, Justice.
Ms. Espinel, your prepared testimony certainly is a strong
statement about the importance of enforcing intellectual
property rights, and no one could really argue with that. You
speak convincingly about the coordination among the various
agencies that's needed to ensure that enforcement and
protection are done efficiently.
Can you give me an idea of what steps you'll take to make
sure that these enforcement activities do not undermine public
access to information that is so crucial for innovation and
other priorities of the United States, and specifically, do you
see it as part of your portfolio to coordinate with science and
information library agencies on this issue?
Ms. Espinel. Thank you, Senator. I think it's part of this
position to coordinate and find a consensus among all of the
different agencies and offices inside the U.S. Government that
are charged with protecting and enforcing intellectual property
and place importance on intellectual property. I think
intellectual property is a long-term strategy in many ways, and
so there will always be issues, as with all policy areas, where
there will have to be balances that will be found.
One of the things that I think this position is poised to
do is to try to work with, in a very open and transparent way,
all of the agencies and all of the stakeholders and the general
public of the United States to try to develop a strategy that
will protect intellectual property efficiently and effectively,
but will do that taking account of the variety of views and
opinions that exist.
Senator Feingold. So do you agree that over-zealous
enforcement of intellectual property rights could reduce our
citizens' legitimate access to information, and will you ensure
transparency in policy development so that all of the
ramifications of these enforcement activities can be assessed
with the maximum public involvement?
Ms. Espinel. This administration is very committed to
transparency. If I am confirmed by the Senate, I will uphold
that policy of transparency and take it very seriously, and I
will look for the appropriate forum to do so within the office
that I will head.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Congratulations
to all of you for your nominations.
Ms. Espinel--and this is--I want all of you to think about
this in constitutional terms a little bit, too. The FCC
recently put out a proposal for a more free and open Internet,
net neutrality rules. I think what they're doing is critically
important. When Justice Sotomayor was in her hearings, I raised
this issue as a constitutional issue of making sure that the--
that information flows freely on the Internet.
Ms. Espinel, I also want to prevent piracy. You talked
about balance. So speaking of balancing, how should regulations
balance the need to stop piracy with the need to protect the
free flow of information on the Internet?
Ms. Espinel. Thank you, Senator. I think that's an
excellent and very important question these days. Clearly,
Internet piracy is a very serious problem our country is facing
and has serious ramifications for our economy. At the same
time, openness on the Internet is one of the reasons that the
Internet has been so successful and helpful to so many over the
past few decades.
Openness, however, doesn't apply to unlawful content and I
believe there is a way to ensure that the Internet is open and
we're not restricting access to legitimate information to
people, while trying to contain the very serious problem of
Internet piracy that we face. As you mentioned, the FCC is
looking at this at this moment. If I were confirmed, I would
certainly be working with the FCC, as well as the other
relevant agencies, to try to develop a strategy that would
efficiently protect and try to stop Internet piracy, but one
that is consistent with this administration's policy of
transparency and trying to ensure that we promote the Internet.
Senator Franken. OK. But what do you see as some of the
main tensions there? I'd just like to get your thoughts on that
because, you know, there's all kinds of issues of, you know,
maintaining your network and people trying to download enormous
files versus the free flow and no restrictions. What do you see
as the tensions in net neutrality and this whole issue of
intellectual property?
Ms. Espinel. I guess I don't--I don't know that there
necessarily have to be those tensions. I know that they exist.
It seems to me that there has to be a way we can find to move
forward where we can ensure that the Internet is open, ensure
that there is reasonable management of networks, and at the
same time try to ensure that the Internet is not being used as
a means of distribution for all types of illegal content,
including pirated content.
So, you know, I think--and if I was confirmed, I think one
of the first--one of the issues that I would be grappling with,
in coordination with the other agencies, is how we go forward
in devising a strategy that accomplishes both of those goals.
Senator Franken. OK. Thank you.
Do any of you three have any thoughts on constitutional
issues regarding net neutrality?
Judge Reiss. Clearly, this is Ms. Espinel's area of
expertise, but I was thinking about, what would the
restrictions look like? Would they be content-based, which
would be concerning to me from a constitutional perspective? I
would want to make sure that the focus was on the process as
opposed to impeding the free flow of information by focusing on
content-based restrictions.
Senator Franken. OK. I'm not sure that anyone's really
talking about that so much. More of what I see are the
conflicts between managing networks and the free flow of
information. Anybody else have any thoughts?
[No response].
Senator Franken. Well, thank you all. Again,
congratulations.
Chairman Leahy. Thank you very much.
Mr. Kallon, I mentioned earlier that I was placing in the
record a statement from Congressman Davis, very complimentary
of you.
Mr. Kallon. Thank you.
Chairman Leahy. And also retiring Judge Clemon. But I would
note that the Congress--just for the record, the Congressman is
here in the room and has joined us. Senator Sessions has
further questions. I know we're about to--we're going to have a
roll call before too long on the floor, and I will yield to
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
It's good to see Congressman Davis. He was an Assistant
U.S. Attorney and knows something about Federal courts himself,
a Harvard Law graduate. So, I know you strongly support Mr.
Kallon, and that's been very important to me, Congressman
Davis. I value your opinion. We've talked about these
appointments over the years.
Mr. Butler, your decision in Thomas v. Mallet has been
widely criticized. There you held that lead paint manufacturers
could be held liable for an injury from a product that, as a
dissent in the case said, ``they may or may not have produced,
which may or may not have caused a plaintiff's injuries, based
on conduct that may have occurred over 100 years ago when some
of the defendants were not even part of the relevant market''.
That was the dissent.
With your decision, Wisconsin became the only State in the
country to adopt a far-reaching theory of liability in such
cases. In other words, whether a company actually produced the
lead paint that harmed the claimant is irrelevant to his guilt
or innocence. Former dean of the University of Maryland Law
School, Donald Gifford, said that Thomas was ``the single most
radical departure from the principles of tort law in recent
decades. It is a decision that puts Wisconsin dramatically out
of line with the law of any other State in the country''. How
would you respond to that criticism and to the dissent's
comments?
Justice Butler. Senator, with respect to the dissent's
comments, I know that the majority in the opinion did respond,
I believe, on a number of occasions. Within the opinion itself,
I don't agree with the dissent's characterizations of the
majority opinion. Let me just begin by saying, in case my
recollection is at all faulty, I stand on the words of the
opinion. That's why we draft opinions. That's why we write
them.
But my understanding of the case that was decided by a
majority of the Wisconsin Supreme Court was that we were
applying prior precedent, prior Wisconsin precedent, the case
of Collins v. Eli Lilly, and we were applying that to a
Wisconsin constitutional provision, Article I, Section 9 of the
Wisconsin constitution.
So we were relying on precedent. We were relying on the
Wisconsin constitution. It was a difficult case. We applied a
limited risk liability theory with respect to negligence as
strict liability claims. We rejected other claims that were
brought by the plaintiff in that matter. The case ultimately,
when decided at the lower courts, did not result in the type of
criticism that we heard, the type that was called out by the
dissent in the case. In fact, the plaintiff in the action lost
the case at the trial court level. This was a summary judgment
action and involved an access to the courts. It was an access
to the courts issue.
Senator Sessions. I appreciate that and will look at that
record. But in fact the defendant could be liable for an injury
they didn't cause, under the logic of your opinion. Isn't that
correct?
Justice Butler. The opinion basically looked at whether or
not a particular manufacturer produced and marketed a product
and marketed it as safe when in fact it was dangerous without
warning consumers that it was in fact dangerous. This was--
according to the information that is contained right within the
body of the opinion, this was with knowledge that dated back to
internal memos to 1904, and this was still being done. And the
question under Wisconsin----
Senator Sessions. That action was the cause of this
plaintiff's injury, correct?
Justice Butler [continuing]. The issue in the case was,
once a particular manufacturer marketed, produced, sold it in a
particular area--one of the things that the plaintiff would
have to establish is that it was done and sold in that area
during the time period in question. Then the burden would shift
to the manufacturer to show that it was, indeed, not their
product.
Senator Sessions. It would seem to me that would create
uncertainty about who might be liable for what, and you
acknowledged that in a way in your opinion, stating the goal of
certainty is not necessarily achievable and that is not
necessarily a bad thing. How would you suggest that uncertainty
could be a good thing?
Justice Butler. I believe the decision, Senator, was one
that dealt with issues of accountability and who--the actions
taken by the manufacturers in this particular case. What the
decision did was said that if a company knowingly marketed as
safe a product and put it out there as safe when it in fact it
knew to the contrary, that we would not limit the access to the
courts of the plaintiff to bring in and challenge the actions
of the manufacturer.
Now, they would still have to meet the burden of proof in
the actual case in question, and in fact to the best of my
knowledge in every case that's come up subsequent to that in
Wisconsin the plaintiffs have not succeeded. But this was a
summary judgment action, it was access to the court, and the
question was whether or not the plaintiff should have a trial.
Senator Sessions. In Ferden v. Wisconsin Patients
Compensation Fund, you joined the majority of the court in
striking down the punitive damages cap of $350,000 that had
been enacted by the State legislature. In other words, they
limited the amount of liability, which I think California and
Texas do, and Alabama, and others have passed laws to that
effect. You found that it violated the State Equal Protection
Clause because it lacked a rationale basis. Do you agree that
under the court's version of the rational basis test, virtually
any statute would be subject to being struck down? It seems
like to me that the legislature could have a rational interest
in containing aberrational verdicts or high insurance rates and
that kind of thing.
Justice Butler. As to the question of whether any statute,
the answer is no, Senator. With respect to this particular
statute, this did fall within the rational basis test, as
defined by the majority. I also joined the concurring opinion
written by Justice Crooks that recognized that constitutional
caps could be created by the legislature. Just this particular
cap was not constitutional.
Senator Sessions. Well, the legislature did it. They wanted
to make malpractice insurance ``available and affordable'' in
Wisconsin. Other States have done that and it's been upheld.
And they turned out--those caps turned out to be successful. In
2004, the American Medical Association judged Wisconsin to be
one of only six States not in a medical malpractice crisis, and
yet the court engaged in an aggressive, I would say,
reassessment of the legislature's policy decisions that they
made. How is it that caps are not rationally related to
malpractice insurance available in the State?
Justice Butler. Senator, a lot of that is explained in the
chief justice's opinion. In large part, we have a medical
malpractice fund that protects the insurance rates within the
State of Wisconsin, and as the opinion explains, the price and
the cost of insurance has very little to do with the caps issue
within our State as a result of the medical malpractice fund
that exists within Wisconsin.
Senator Sessions. Well, thank you.
Let me ask you this. It's something that all of us in
politics know, the authority of the people to make decisions.
But you ran for the Supreme Court and were not successful. You
were then appointed when a vacancy occurred, and then you had
to stand for election and your record was examined and
criticized and you were defeated by a 2:1 margin, as I
understand it. How would you explain the circumstances of that?
Justice Butler. Actually, Senator, the margin was 51
percent to 49.
Senator Sessions. OK. That's different than what I've been
told.
Justice Butler. And there may be a number of explanations.
Senator Sessions. That's pretty close.
Justice Butler. That was a close election, Senator. And
there may be a number of explanations. Perhaps the best that I
can give to you, Senator, is that after 16 years on the bench I
think I may be a better judge than politician. Having said
that, I do note for the record that I was elected by a pretty
large majority in the community in which I served in Milwaukee
County and I was elected in the Western District of Wisconsin,
where I would be serving if confirmed by the Senate. I had the
majority of citizens in that portion of the State. So the
people that know me best did support me.
I also acknowledge the fact that, as far as elected
politics are concerned, I think the election that is supposed
to matter is the one for President and who to select as a
judge, not the one in an elective judicial race.
Senator Sessions. Well, that's somewhat true. But we get to
vote in this body.
Justice Butler. That's true, Senator.
Senator Sessions. Congratulations on the nomination. Thank
you for those answers. I'm glad you clarified that error in my
understanding. I think you were entitled to have a chance to
explain that.
Justice Butler. Thank you, Senator.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Leahy. I would note in that election, I've read
that, one, it was a 51:49, and those who contend your defeat
came about after special interest groups poured millions of
dollars into a sleazy and dishonest attack campaign that
``played on racial stereotypes'' and was condemned by Democrats
and Republicans, liberals and conservatives. I understand that
there has also been the Wisconsin judicial ethics--commission
on ethics complaint in that case. Not against you, but
opponents under the rules that they--when a candidate lies
about their opponents in these judicial matters. So I would
note that you faced some rather unprecedented opposition for
it.
But Senator Kohl, did you wish to say something?
Senator Kohl. No.
Chairman Leahy. Senator Feingold, did you wish to? Senator
Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Let me just follow on what you were just commenting on, the
April 2008 election where Justice Butler unfortunately lost his
seat on the Supreme Court of Wisconsin. We do have popularly
elected judges in Wisconsin. In recent years, however, these
elections have become regrettable political battlegrounds. It
is one of the most troubling things that is going on in our
State at this point, and there are not only bipartisan, but
nonpartisan groups that are desperately trying to figure out
some solution to the problem that we have in these Supreme
Court races.
In this selection, as the Chairman indicated, special
interest groups spent nearly $2 million in advertising. One
particular ad run by Justice Butler's opponent, in fact,
resulted in a judicial ethics complaint that remains unresolved
to this day. Losing 51:49 is not exactly a mark of shame or
rejection. The Justice is right, he won the Western District of
Wisconsin, in which he would serve as a Federal judge.
But that's not really the point. We have Federal judges for
life who do not face a popular election for a reason. The
founders of the country did not say, if you've lost a previous
popular election you're disqualified to be a Federal judge.
That's the actual opposite of the judgment that is made in the
Constitution of this country. People in the State of Wisconsin
made a different judgment, that we want to elect judges, and I
agree with that.
But the notion that somehow a completely different standard
would disqualify somebody who went through a process where not
only the President of the United States who is duly elected,
but the Senators who are duly elected, and who appointed an
independent commission that looked at all these nominees and
concluded that this man is the most qualified person. That's
the actual record of what happened here. So the idea that
somehow the Supreme Court popular election would in any way
undermine this appointment, I would have to reject out of hand.
Thank you, Mr. Chairman.
Justice Butler. Thank you, Senator.
Chairman Leahy. Thank you very much.
If there are no further questions, then we will keep the
record open for 1 week for any other questions. Normally we
would have a mark-up next Thursday, but the Senate will not be
in session next Thursday so it'll be the week after. I would
hope that everybody will get any questions in because I would
hope we could move--especially as the year is drawing to a
close, we could move these nominees quickly to the floor--he
said with hope springing eternal.
We stand in recess.
[Whereupon, at 4:10 p.m. the Committee was recessed.]
[The biographical information follows.]
[Questions and answers and submissions follow.]
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NOMINATIONS OF DENNY CHIN, NOMINEE TO BE UNITED STATES CIRCUIT JUDGE
FOR THE SECOND CIRCUIT; ROSANNA MALOUF PETERSON, NOMINEE TO BE UNITED
STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON; WILLIAM
M. CONLEY, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF WISCONSIN; SUSAN B. CARBON, NOMINEE TO BE DIRECTOR OF THE
VIOLENCE AGAINST WOMEN OFFICE, DEPARTMENT OF JUSTICE; AND, JOHN H.
LAUB, NOMINEE TO BE DIRECTOR OF THE NATIONAL INSTITUTE OF JUSTICE
----------
WEDNESDAY, NOVEMBER 18, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, Pursuant to notice, at 2:30 p.m., Room
226, Dirksen Senate Office Building, Hon. Charles E. Schumer,
Chairman of the Committee, presiding.
Present: Senators Schumer, Kohl, Feingold, Klobuchar,
Franken, and Sessions.
Senator Schumer.
The hearing will come to order. I apologize to everyone for
being late. Since I was late, I will do my opening statement
last.
So I will first call on my colleague and friend on the
Judiciary Committee, Senator Kohl, for the introduction of Mr.
William Conley for the Western District of Wisconsin. I believe
Senator Feingold is going to come at some point later to do the
same.
Senator.
PRESENTATION OF WILLIAM M. CONLEY, NOMINEE TO BE U.S. DISTRICT
COURT JUDGE FOR THE WESTERN DISTRICT OF WISCONSIN BY HON. HERB
KOHL, A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Kohl. Thank you very much, Mr. Chairman. It is my
pleasure today to introduce William ``Bill'' Conley to the
Judiciary Committee. We also welcome Mr. Conley's many family
members who have traveled here to be with us.
Bill Conley was born and raised in Rice Lake, a town in
northwest Wisconsin. He received a BA with distinction from the
University of Wisconsin at Madison and graduated cum laude and
Order of the Coif from the law school at that place.
Following law school, he clerked for Judge Fairchild in the
Seventh Circuit Court of Appeals. Bill Conley has practiced law
for 25 years at Foley & Lardner and has earned a reputation as
a well regarded and topnotch litigator.
He has represented an array of national and international
companies before state and Federal courts and has served as a
mediator and arbitrator to resolve disputes for parties outside
of court.
During his many years in private practice, Bill Conley has
also used his legal talent to give back to the community. He
has devoted hundreds of hours to pro bono legal work,
representing refugees, indigent defendants and others who would
otherwise not be able to afford legal representation.
He has also been active at the Remington Center for
Criminal Justice at the University of Wisconsin and the
Wisconsin Equal Justice Fund. Bill Conley possesses all of the
best qualities that we look for in a judge--legal acumen,
diligence, humility and integrity.
Having spent much of his career representing clients before
the court to which he has been nominated, he has a key
understanding of the fairness and impartiality that the
administration of justice demands.
Bill Conley is a fine man. We can all be proud of him and I
am confident that he will serve the people of Madison and all
of Wisconsin well.
Bill Conley's nomination proves once again that the process
that we use in Wisconsin to choose Federal judges and U.S.
attorneys ensures excellence.
The Wisconsin Federal Nominating Commission has been used
to select Federal judges and U.S. attorneys in Wisconsin for 30
years, through Republican and Democratic administrations and a
tenure of Senators from both parties.
Through a great deal of cooperation and careful
consideration and by keeping politics to a minimum, we always
seem to find highly qualified candidates.
Again, we are pleased to have you with us today and we look
forward to your testimony.
Thank you, Mr. Chairman.
Senator Schumer. Senator Franken, do you wish to give any
statement?
Senator Franken. I am fine.
Senator Schumer. So I will delay mine for Judge Chin from
New York so we can call on our colleagues, who I know have busy
schedules. So we, first, are joined by both Senators from the
State of Washington in support of Professor Peterson for the
Eastern District of Washington, Senator Murray and then Senator
Cantwell.
PRESENTATION OF ROSANNA MALOUF PETERSON, NOMINEE TO BE U.S.
DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON BY
HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Mr. Chairman, thank you very much, and to
all of our members who are here today.
Along with my colleague, Senator Cantwell, it is my
pleasure to introduce Rosanna Malouf Peterson. Rosanna is a
distinguished law professor and attorney who has been nominated
to serve as the next Federal Judge for the Eastern District of
Washington.
I want to welcome Professor Peterson and her husband, Fred,
who is here, as well as her daughter, who has joined us,
Miranda, and Professor Peterson's brother-in-law and sister-in-
law, Don and Sherry Shipley, who are all joining us here today.
Mr. Chairman, I think it kind of speaks to the type of
nominee she is that so many of Professor Peterson's friends and
current and former students are also here to support her.
Mr. Chairman, I am honored to recommend that the Senate
confirm Rosanna Malouf Peterson as the District Court Judge for
the Eastern District of my home state. She has strong
bipartisan support, and with good reason. She has devoted her
career to serving the interests of justice and to instilling
those values in a future generation of leaders.
Professor Peterson is a graduate of the University of North
Dakota, where she earned her bachelor's, master's and law
degrees. After law school, she started her legal career in the
chambers of Judge Fred Van Sickle in Spokane, the very same
seat that she has now been nominated to fill.
During her distinguished career, Professor Peterson has
worked as an attorney in Spokane area law firms, for corporate
and individual clients; she has worked in private practice,
often representing teachers; and, she has worked as a court-
appointed representative for criminal defendants in state and
Federal court.
Since 1999, Professor Peterson has been a law professor at
the Gonzaga Law School in Spokane, where she is an assistant
professor oF law and director of the law school's externship
program. At the same time, Professor Peterson has maintained
her private practice, where she has continued to work with
Federal defendants on a pro bono or reduced fee basis.
Professor Peterson has also played a leadership role in the
Washington legal community, including president of the Federal
Bar Association of Eastern Washington, president of the
Washington Women Lawyers Bar Association, and on the Judicial
Selection Committee that helped recommend a magistrate judge in
2003.
In recognition of her service, in 2006, she was awarded the
Smithmoore Myers Professionalism Award, the Spokane County Bar
Association's highest honor. Professor Peterson's
accomplishments stand for themselves, but I have also received
numerous letters and emails testifying to Professor Peterson's
toughness, work ethic, understanding of the law, and advocacy
on behalf of her clients. I've also received many letters from
her former students and people she has mentored, taught and
befriended over the years, letters that all say she has made a
difference in the lives of so many in my state.
She clearly meets the standards of fairness,
evenhandedness, and adherence to the law that we expect of our
Federal judges. Outside of her many professional credentials, I
have been able to speak with her and I have been impressed by
her professionalism and decency.
I know I speak on behalf of a large number in the
Washington State legal community in supporting the nomination
of Rosanna Peterson to be the next district judge for the
Eastern District of Washington.
Mr. Chairman, I think it is also important to note for the
Committee that Professor Peterson's nomination was the product
of a bipartisan selection commission that we use in my home
state.
This commission was formed and did much of its work under
the previous administration and has proven that it works even
as we move from one administration to the next.
I am very proud to have created that selection commission
and believe it is something that has really served our state
and our Federal judiciary well.
Therefore, it is my pleasure today to introduce a great
lawyer, a teacher and a mentor, who I believe will make an
exceptional Federal judge and I urge this Committee to approve
her nomination. I hope we can confirm Professor Peterson before
the full Senate quickly.
Senator Schumer. Who knows, maybe 1 day President Peterson.
Senator Murray. Who knows? Thank you, Mr. Chairman.
Senator Schumer. Thank you. I know that the commission that
you and Senator Cantwell have worked on is well known for
creating excellent nominations in a bipartisan way and I think
it is a good model for everybody else.
Senator Cantwell.
PRESENTATION OF ROSANNA MALOUF PETERSON, NOMINEE TO BE U.S.
DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON BY
HON. MARIA CANTWELL, A U.S. SENATOR FROM THE STATE OF
WASHINGTON
Senator Cantwell. Thank you, Chairman Schumer and
distinguished members of the Committee. It is great to be here
with my colleague, Senator Murray, and, also, with our
colleague, Senator Shaheen. We thank the Committee for this
opportunity to introduce a Washingtonian to the Committee for
this United States District Judge for the Eastern District of
Washington.
I think if this is a commitment of voting this nominee out
of the Committee and onto the floor and into this position, it
will be the first time this position has been filled by a
woman. So we are very excited about that.
Let me say to all the nominees that are before the
Committee, I congratulate them on their nominations and look
forward to working with them in the future. But we are
especially proud to introduce Rosanna Peterson to support her
nomination for this position.
I have no doubt that she will be an outstanding
representative for our country and I am, too, glad to have her
family here and congratulate them in their support of Rosanna.
She, as my colleague, Senator Murray, said, serves as the
assistant professor of law at Gonzaga University, and I know
that there are many Bulldogs watching via the Internet today
and are very proud of their professor.
Before making her way to Washington State, she received her
JD from the University of North Dakota School of Law, where she
was the editor-in-chief of the North Dakota Law Review,
something we are going to point out to our colleagues from
North Dakota, and a member of the Order of Barristers and voted
outstanding graduate by her law school faculty.
Following her graduation, she moved to Spokane, where she
clerked for Judge Fred Van Sickle, whose ascendency to senior
status created this very vacancy. So after 2 years with Judge
Van Sickle, she entered private practice, until her appointment
at the Gonzaga faculty.
Professor Peterson brings, I think, an impressive breadth
of experience to the bench, because in private practice, she
has represented more than 250 clients in both civil and
criminal matters at both the state and Federal levels and has
litigated numerous trials.
In her current position at Gonzaga University School of
Law, Professor Peterson teaches evidence, Federal jurisdiction
and trial advocacy, while directing the school's internship
program.
I have no doubt she will be an exceptional jurist for the
Eastern District of Washington. She has long been recognized by
her peers for her keen intellect, boundless passion for the
law, and dedication to equal justice.
So I offer this Committee my strongest recommendation to
act quickly and in a positive way to put this nomination before
the full Senate. I thank the Chairman and my colleagues for
their consideration. I thank all the nominees for their
willingness to serve and for the President's nomination of
Rosanna Peterson before this Committee.
Senator Schumer. Well, after these two introductions, maybe
we should nominate her for president.
We next have Senator Shaheen, who will introduce Professor
Laub for Director of the National Institute of Justice.
Sorry. Senator Mikulski will have a statement for the
record introducing John Laub for the Director of the National
Institute of Justice, and Senator Shaheen will be introducing
Susan Carbon for the Director of the Office of Violence Against
Women.
I am particularly interested in that, being the House
author of the Violence Against Women Act. So thank you for
being here, Senator Shaheen.
PRESENTATION OF SUSAN B. CARBON, NOMINEE TO BE DIRECTOR OF THE
VIOLENCE AGAINST WOMEN OFFICE, DEPARTMENT OF JUSTICE, BY HON.
JEANNE SHAHEEN, A U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Shaheen. Thank you, Mr. Chairman. I thought you
might be interested in this. Senator Kohl, Senator Franken, I
am pleased to be here this afternoon.
After what we've heard, I want to endorse all of the
nominees, but, of course, I'm here to introduce Susan Carbon,
who, as you point out, has been nominated to be the Director of
the Office of Violence Against Women in the Department of
Justice.
I have known Susan for over--well, for about 20 years and I
have been an admirer of her exemplary commitment to public
service. Susan was appointed as a part-time New Hampshire
District Court judge in 1991 by then Governor and now Senator
Judd Gregg. So I am sure she will have bipartisan support in
the Senate.
When I became Governor of New Hampshire, I recognized
Susan's impressive service on the bench and nominated her to
serve as a full-time district court judge. Because of her
commitment to domestic violence and other family issues, Judge
Carbon was named the supervisory judge on the Judicial Branch
Family Division in New Hampshire.
Throughout her career, Susan has been a leader in the New
Hampshire legal community, including serving as president of
the New Hampshire Bar Association from 1993 to 1994.
Now, Mr. Chairman, as you point out, you have been a leader
in the senate on strengthening the Violence Against Women Act
and care greatly about this issue. Well, I can assure you that
Susan Carbon is exceptionally qualified to serve as the
director of the Office of Violence Against Women.
Judge Carbon is the leading voice in New Hampshire on
domestic violence and family law and has been the driving force
behind many of New Hampshire's efforts to strengthen legal
protections for victims of domestic violence.
Judge Carbon has also become a national leader on domestic
violence. She frequently serves as faculty for the National
Judicial Institute on Domestic Violence and she chaired the
project which produced the multidisciplinary Effective Issuance
and Enforcement of Orders of Protection in Domestic Violence
Cases, which many people also know as the Burgundy Book.
The Burgundy Book guides professionals in their work around
civil protection orders not only throughout this country, but
the U.S. territories.
Mr. Chairman, I have no doubt that Judge Carbon will work
tirelessly to advance the goals of the Violence Against Women
Act and I urge the Committee to give her confirmation speedy
recommendation and I give her my strongest recommendation for
her confirmation.
Thank you very much. If there is anything more that I can
do to help Judge Carbon with this appointment, please let me
know.
Senator Schumer. Thank you, Senator Shaheen. Again, a great
introduction for somebody who looks to be a great nominee.
You're right about the bipartisan nature. Senator Gregg has
submitted a statement on behalf of Judge Carbon and, without
objection, I will enter that into the record.
[The prepared statement appears as a submission for the
record.]
Senator Schumer. We also have Senator Mikulski and I would
ask unanimous consent that her statement on behalf of John Laub
as Director for the National Institute of Justice be added to
the record.
[The prepared statement appears as a submission for the
record.]
PRESENTATION OF DENNY CHIN, NOMINEE TO THE U.S. COURT OF
APPEALS FOR THE SECOND CIRCUIT BY HON. CHARLES E. SCHUMER, A
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Now, I will read my statement introducing,
from my home State of New York, Judge Denny Chin, who is a
nominee for the Second Circuit Court of Appeals, what we would
like to think is one of the most important circuit court of
appeals in the country, along with the others. I do not want to
offend my colleagues.
[Laughter.]
Senator Schumer. Judge Chin is also, not incidentally, a
classic product of New York upbringing. I am so proud to
introduce him here.
His family brought their own culture from Hong Kong to
America and earned their own advantages through sweat and hard
work. Within one generation, his family raised a child who rose
to the top of his profession.
Judge Chin was born in Kowloon, Hong Kong, came to the
United States when he was 2 years old. His father worked as a
cook. His mother worked as a garment factory seamstress in
Chinatown.
Judge Chin grew up in a cramped tenement in Hell's Kitchen
with is four siblings, but his parents clearly did something
right. Denny Chin graduated from the renowned Stuyvesant High
School. We just had before the Judiciary Committee Judge
Holder, another graduate. I don't know if you graduated at the
same time.
My daughter went to Stuyvesant and my favorite thing about
them, they are very bright people, it is hard to get in, their
teams are not that good and they know it, because the mascot of
the team is the pegleg. They are called the Peglegs after Peter
Stuyvesant. Anyway, it is good to have a pegleg here with us.
Judge Chin went on to earn his BA magna cum laude on a full
scholarship from Princeton University and he received his law
degree from the Fordham University School of Law. After school,
he clerked on the District Court for the Southern District of
New York and went on to work as an associate at Davis Polk &
Wardwell.
He heeded the call of public service, became an assistant
U.S. attorney in the southern district for 4 years, then struck
out and founded his own firm.
Throughout my term in the Senate, I try to give advice and
consent to the President on judicial nominees by applying three
criteria--excellence, moderation and diversity.
Excellence, they should be legally excellent. If you look
at Judge Chin's record as a district court judge, he clearly is
excellent. The Almanac of the Federal Judiciary describes him
as a judge's judge, conscientious, extremely hardworking, very
bright and an excellent judge.
My second criteria is moderation. I do not like to choose
judges too far right, obviously, but, also, too far left,
because I think judges at the extremes try to make the law
rather than interpret the law. Again, Judge Chin is known as a
tough, but fair sentencing judge.
He is best known for sentencing the Ponzi scheme operator,
Bernard Madoff, in a case that could have been a complete
circus, because there were hundreds of victims who had lost
everything. Judge Chin ran the proceedings with dignity and
efficiency and when he sentenced Judge Madoff, he said, ``The
message must be sent that Mr. Madoff's crimes were
extraordinarily evil and that this kind of irresponsible
manipulation of the system is not merely a bloodless financial
crime that takes place on paper, but that it is one that takes
a staggering human toll.''
He is not afraid of unpopular views. He ruled that the New
York Black Panthers could not be denied the right to march
based on, quote, ``disapproval of anticipated content,'' and he
has the support of former Attorney General Michael Mukasey and
Republican-appointed U.S. Attorney John Martin, who hired him
30 years ago and has practiced before Jude Chin.
On the issue of diversity, I think I have given advice and
consent to the President on 10 or 11 judges. There is only one
white male, because I think we should have more women and
minorities on the bench. Judge Chin already has the distinction
of being the only Asian-American to serve on the Federal
District Court outside the Ninth Circuit and, with his
confirmation, he will be the only currently active Asian-
American appellate judge on the Federal bench.
He explained the importance of diversity in clear terms
when he wrote, ``If there were more minority judges and lawyers
in the profession, lawyers might not question a minority
judge's fairness because of his or her race; lawyers might not
presume that a minority judge is biased because of some sort of
absurd notion that the judge might feel beholden to someone of
the same racial or ethnic group who supposedly was in a
position of power.'' These are great words and they say it
better than I could.
So it is my honor to introduce Judge Chin for nomination to
the Second Circuit Court of Appeals.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
Senator Schumer. With that, let me ask all of the nominees
to come forward. We have Judge Chin, we have Professor
Peterson, we have Judge Carbon, we have John Laub, and Judge
Conley for the Western District of Wisconsin.
They tell me I am supposed to have Judge Chin come first;
not because he is from New York, but because you are on the
Second Circuit. So you come forward first.
So, please, raise your right hand.
[Whereupon, the witness was duly sworn.]
Senator Schumer. Please be seated. You may both introduce
your family and make an opening statement.
Judge Chin. Thank you, Senator. And thank you, Senator Kohl
and Senator Franken, for being here.
Let me start by introducing my family. With me is my wife,
Kathy Chin. We have been married 31 years. My oldest son, Paul,
is here. He teaches sixth grade math in Newark. He also was a
Pegleg. He was in your daughter's class and, indeed, he was on
the football team. And you are right, the teams weren't very
good.
Senator Schumer. When I played at Madison High School,
where Senator Coleman attended, Senator Franken's predecessor,
our team's motto at Madison was ``We may be small, but we're
slow.''
[Laughter.]
Senator Schumer. Which I would not say of the Milwaukee
Bucks, since Senator Kohl has some interest in them.
Judge Chin. Also here is our 15-year-old, Daniel, who will
be the star on his basketball team this year. With us also is
Paul's friend, Melinda, also from Princeton. And my brother,
Daley, is here with his daughter, Alisha.
My deputy clerk, David Tam, who has been my deputy at the
court for 15 years, is here, as well. And I've got a whole
bunch of law clerks and friends sitting in the back. I want to
thank----
Senator Schumer. Could all of those who were introduced
just please--it is always nice to see the families and friends.
So just stand for a second. We are not going to ask you to say
anything. Thank you all for being here.
Judge Chin. Senator Sessions, good afternoon.
I do not have an opening statement, other than to say I
thank the President for this honor and I would be pleased to
answer any questions.
Senator Schumer. Well, before we do that, since Senator
Sessions just came in--would you like to make any opening
statement, Senator Sessions.
Senator Sessions. No. I would just take a moment to say we
appreciate this process. It is an important step. Even though
members, most of our Committee, are not here today, they have
incredible demands upon them. Four of our Republican members
are on the Finance Committee and I hear we may have a health
care bill in a few hours. I know they are working on that.
But we take it seriously. We look forward to supporting
most of the President's nominees and I look forward to this
hearing. Thank you, Mr. Chairman.
Senator Schumer. Thank you. We will do some brief
questions. These are the same questions I asked to Judge Lynch
when he was elevated from the District Court to the Second
Circuit, and I know he is a colleague of yours.
Judge Chin. Yes.
Senator Schumer. Who was your model of an appellate judge?
In your 1994 questionnaire for this Committee, you said ``On
the proper role of judges, my view is that judges ought not to
legislate. That is not their function. Judges interpret and
apply the law, keeping in mind the purposes of the law.
District judges, in particular, should focus on ensuring that,
one, the parties have standing; two, there is an actual case or
controversy ripe for judicial review; three, that the law is
applied fairly; and, four, that precedents are followed.''
Is that still your definition of judicial restraint? Please
explain. So those are my two questions for you.
Judge Chin. As to the second question, yes. After 15 years
of judging, that is still very much my philosophy. I believe in
the rule of law and I believe in giving the parties a full and
fair opportunity to be heard.
As to the model of an appellate judge, I have great respect
for John Newman of our court. He is extremely smart. He's
thoughtful. He asks hard questions at oral argument and he's
always been a gentleman.
Senator Schumer. Thank you. I have no further questions.
Senator Sessions.
Senator Sessions. Judge Chin, in 2007, in the New York Law
Journal, you made a statement that I guess can be defended,
but, also, is a statement that raises some concern.
You said this, quote, ``If justice is blind, why does the
race of a judge matter? Well race does matter. A black
plaintiff or a white defendant or an Asian-American litigant
who appears before me should not believe that I will rule any
differently because of race or ethnicity or cultural
background. I won't. But what I will do is bring my diverse
background with me. A broader mix of judges at bench which more
fairly reflects the rich diversity of our society will improve
the overall quality of justice.''
So I think there is a little bit of a solid statement in
there and a little bit of a statement that makes me a bit
uneasy. Would you expound a bit on what you meant in those
words?
Judge Chin. Yes, Senator. In a perfect world, race would be
completely irrelevant and, hopefully, someday we will get
there. I don't think we're there yet and I think that the
quality of justice is not as good if the bench is dominated by
one group of the same background or persuasion.
I think with a more diverse group on the bench, the judges
will learn from each other. I do not suggest for a moment that
an Asian-American judge is more likely to reach a wise result
than a white judge, but I think the two together can learn from
each other and perhaps come up with a better answer.
Senator Sessions. Well, I think the ideal of American
justice, would you not agree, and it is the strength of our
system, that a judge puts on a robe and that when they do and
they take that oath to be impartial, do equal justice to all
the parties, that that suggests that they will not let their
personal feelings or biases or prejudices, politics or other
things interfere with being fair to each party before them;
would you agree?
Judge Chin. I agree, absolutely, with that. Everyone should
be treated equally and as I said in that speech, an Asian-
American litigant should not be expected to be treated less
harshly or more harshly in front of me. But I do think there is
something to be gained if the bench reflects the richness of
our society.
Senator Sessions. Well, I certainly believe that every
judgeship should be equally achievable by a person, no matter
what their background is, and that they should not be favored,
selected groups or races or ethnic groups or religious groups
that get favoritism.
You enjoined, on one occasion, Judge Chin, the enforcement
of provisions of New York's Megan's Law. In the first of the
decision, you held that the notification portion of the statute
violated the ex post facto clause of the U.S. Constitution and
enjoined it from being applied to inmates who were convicted
before the statute was enacted.
The Second Circuit unanimously reversed this decision. On
remand, you held that the statute violated the due process
clause in its procedures for assigning defendants into risk
categories.
Two years after the state and plaintiff reached a
settlement, the State of New York amended its Megan's Law. You,
again, enjoined the enforcement of the statute. A divided
Second Circuit, again, reversed your opinion.
Would you discuss how you approached that case and how you
came to be in disagreement with the court on which you would
seek to sit and what was it you, on several occasions,
overturned the duly passed law of the people of New York?
Judge Chin. Yes, Senator. There are three aspects to the
case and I will take each one at a time. The first was the ex
post facto clause. I was not opining on whether Megan's Law was
good or bad. I was not looking at the statute as a whole.
I was looking at the narrow question of whether it could be
applied retroactively, that is, to people who committed their
crimes long before the statute was passed.
It was a thorny issue. I took a good hard look at the
precedents and I held that it was punishment that was the
technical issue. The Second Circuit, indeed, reversed and Judge
Newman wrote the opinion and Judge Newman wrote that it was a
question that was not free from doubt, and the court went that
way. I accept the court's decision, of course.
The due process part, I did have due process concerns and,
in fact, the parties settled the case and the New York State
legislature amended the statute and incorporated measures to
address a lot of the concerns that I raised, and, in fact, that
was not appealed.
The third part was a narrow contractual position that had
to do with whether a new amendment in the law should be applied
to those people who were part of the class that was settled
originally. And I felt that a contract was a contract and the
state should be bound.
The Second Circuit reversed. It was a 2-1 decision. There
was a dissent by one of the judges. And the court held that the
legislature, in essence, was free to rewrite the contract
because it was the state legislature.
Senator Sessions. Thank you. Unlike some of the statements
some of our colleagues make, I do not think that the U.S.
Senate and, I suspect, the New York legislature have always
thoroughly studied the constitutionality of what they pass when
they pass it and I do not think it is activism that a judge
would find a statute that is unconstitutional unconstitutional
and if it is unconstitutional, it should not be enforced.
So I will look at your answers, appreciate your answers,
and evaluate that. But we have had instances in which judges,
for some reason, did not like a law and have gone outside, I
think, the normal bounds to see if they can undermine it.
Thank you.
Judge Chin. Thank you, Senator.
Senator Schumer. Thank you, Senator Sessions. Senator Kohl,
do you have any questions?
Senator Kohl. Judge Chin, you are moving from the trial
court to the appeals court. How do you see the difference
between those assignments?
Judge Chin. Well, first of all, I've loved my 15 years as a
trial judge. I love the drama of the courtroom, the hustle and
bustle of the day-to-day proceedings. I've been fortunate and
I've had a lot of exciting high profile cases.
So it's with some reservation that I would move on, if I am
confirmed. On the other hand, after 15 years, I think it is
time for a change. If I am confirmed, I look forward to being
able to write more, to decide issues a little bit more
deliberately, and perhaps to have a broader impact.
Senator Kohl. As you know, you sit on a three-judge panel
as differentiated from how you observed and ruled as a trial
court judge. In that situation, you need to be in accord with
at least one other judge on your panel in order to form an
opinion and it requires some degree of ability to convince at
least one of the others to support how you think. Is that a
challenge that you would embrace?
Judge Chin. It is a challenge that I would embrace, for
sure. In fact, I've sat by designation many times now. Roughly,
every 2 years, I've sat on the Second Circuit. In fact, I've
issued 10 majority opinions.
And so I understand it's a very different process, because
it is--you have to build some consensus. The back-and-forth in
terms of the opinions is something I am not used to, because of
the independence that we have as trial judges.
Senator Kohl. Thank you. Thank you, Mr. Chairman.
Senator Schumer. Now, Senator Feingold has an opening
statement first, I guess, and then he may ask questions of this
witness, whatever you prefer.
Senator Feingold. I will pass on the questions.
Senator Schumer. So Senator Feingold for Mr. William Conley
for the Western District of Wisconsin.
PRESENTATION OF WILLIAM M. CONLEY, NOMINEE TO BE U.S. DISTRICT
COURT JUDGE FOR THE WESTERN DISTRICT OF WISCONSIN BY HON.
RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Feingold. I apologize for being unable to be here
at the beginning of the hearing and thank you, Mr. Chairman,
for recognizing me now.
It is a great pleasure to introduce to the Committee
William M. Conley, who the President has nominated to serve as
U.S. District Court Judge in the Western District of Wisconsin.
Bill Conley attended the University of Wisconsin-Madison
for both his undergraduate and legal education, receiving
honors from both. He graduated cum laude from the law school,
where he was also a member of the Order of the Coif and served
as articles editor on the Wisconsin Law Review.
After graduation, Mr. Conley clerked for Judge Thomas E.
Fairchild, who was a legendary Wisconsin judge on the United
States Court of Appeals for the Seventh Circuit. He then began
work in 1984 at the law firm of Foley & Lardner, where he
continues to work today as a commercial litigation partner.
I suppose full disclosure would be appropriate here. I
first met Bill Conley in 1982 when he was a summer associate at
Foley & Lardner and I was a young associate at the firm, and I
think I gave him something to do that I did not want to do.
I left private practice to run for office, but Bill made it
his career and is now widely known as one of the top lawyers in
the state. He has written chapters for practice guides in the
appellate process, antitrust issues, product distribution and
Federal civil procedure. After his nomination, he received a
unanimous well qualified rating from the American Bar
Association.
Mr. Conley's litigation background has provided him with
diverse experience and great insight into the judicial process.
Over the last 20 years while he has been at private practice,
he has also participated in the justice system as a mediator,
an arbitrator, and an early neutral evaluator, which is a
volunteer position that helps litigants reach cost-effective
resolutions outside of the court.
Mr. Conley recognizes that as a successful lawyer, he has
an obligation to serve the disadvantaged. He has devoted a
significant amount of time throughout his career to
representing criminal and civil pro bono clients.
One of the things, frankly, that makes me most proud of
this nomination is Bill Conley's deep Wisconsin roots. He grew
up in the beautiful community of Rice Lake, a town of about
8,500 residents, in the northwestern part of the state. He has
lived virtually his entire life in the Western District.
He was educated in Wisconsin and now, with the Senate's
approval, he will serve the people of the Western District as a
Federal Judge. He has described the prospect of serving in this
position as, quote, ``a way to give back to the community that
shaped my life.''
He is a tremendous example for hardworking young people in
the small towns of our state and across the country, and I,
obviously, strongly support his nomination.
Thank you, Mr. Chairman.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Senator Schumer. Thank you, Senator Feingold, for that
excellent statement. Now, we will go to Senator Franken for
questions of Judge Chin.
Senator Franken. Thank you, Mr. Chairman.
Judge Chin, you are currently presiding over the
controversial Google Book search settlement, the possible
resolution of which might be one of the important copyright
issues or decisions to come before the court in years.
As someone who has presumably thought a lot about
intellectual property law and access to information, I would
like to ask you about net neutrality. What role do you think
courts should play in ensuring both an Internet free from
censorship and the prevention of piracy?
Judge Chin. Thank you, Senator. I would not want to opine
generally on what the role of the courts are in this respect.
Our role is to decide cases and if those cases are
presented and if those cases are presented to me, and I've had
some of them in the past, and if they are presented to me in
the future, then I would apply the law.
I would certainly consider the statutes carefully, the text
of the statutes, the cases that have interpreted them, the
legislative history, and make a decision based on the law.
Senator Franken. All right. Fair enough, then. I suppose
you are not going to tell us how you are going to decide in the
Google case.
[Laughter.]
Judge Chin. That is correct, Senator.
Senator Franken. Those are all the questions I have, Mr.
Chairman.
Senator Schumer. Well, thank you, Senator Franken. We look
forward to your further questions of other witnesses.
Well, thank you, Judge Chin. Congratulations.
Senator Sessions.
Senator Sessions. Just briefly. You have mentioned that it
is difficult sometimes to sentence. Congress has spoken on
sentences. The courts have maneuvered around the guidelines.
Even Justice Scalia can make a mistake, I think.
But how would you discuss your philosophy of following the
guidelines as a trial judge, where you have to apply them, and
what approach has there been--where do you see your role as an
appellate judge in that process?
Judge Chin. Well, in terms of what my role has been, I've
done a lot of sentences in 15 years and it is clearly one of
the most difficult things, if not the most difficult thing that
a trial judge does. And what I have been doing, certainly,
since Booker is to follow the law in that sense.
The guidelines are a starting point. They are an important
starting point. They should be given fair and respectful
consideration. And I've found it helpful to have the guidelines
as a framework.
It's comforting to know what the judges throughout the
country, in their collective wisdom, have decided is a
heartland range. But I've also felt it was appropriate to have
discretion to go above or below the guideline range in the
limited circumstances where that is warranted.
As an appellate judge, I will have to get used to not
making that initial decision. It will be a reviewing decision
and under Gall, the standard is abuse of discretion and that's
the standard that I would apply.
I would hope that--yes, sir.
Senator Sessions. That is a pretty low standard for a
judge. How would you evaluate your philosophy in actual
sentencings compared to your fellow judges being within the
guidelines as opposed to without them?
Judge Chin. Well, in part, it's the process. Did they
follow the right process? Did they do a guideline----
Senator Sessions. But in the District Court bench where you
practiced, do you consider yourself more likely to follow the
guidelines than your colleagues or less likely to follow them?
Judge Chin. I believe there were some statistics done and I
was right in the middle of--I was exactly at the average for
the court, precisely at the average.
Senator Sessions. I cannot complain about that.
Judge Chin. So a few tenths of a percentage point off. Our
court has been criticized as going below guidelines quite a
bit, but we have lots of cases with cooperation. And so it's
hard to draw any generalizations.
Senator Sessions. Well, the matter is a serious one.
Judge Chin. I agree.
Senator Sessions. And I do not think justice will be well
served if we abandon a rather strong presumption that
sentencing should be within the guidelines.
Thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator Sessions. Thank you,
Judge Chin. Now, we will call up the second panel.
Judge Chin. Thank you, Mr. Chairman.
Senator Schumer. We will need Mr. William Conley, Professor
Peterson, Judge Carbon and Mr. Laub to all come forward.
[Whereupon, the witnesses were duly sworn.]
Senator Schumer. I am going to call on, before I ask any
questions, since Senators Kohl and Feingold are here from
Wisconsin and so are you, Mr. Conley, I am going to let them
ask the first two questions, and then Senator Sessions and I--
the first two rounds of questions and then Senator Sessions and
I will resume.
Senator Kohl.
Senator Kohl. Thank you so much. Mr. Conley, Senator
Feingold and I will have the opportunity to question you first,
but before we do, we would like you to introduce to us those
who are with you today on this important moment in your life.
Mr. Conley. Thank you very much, Senator. With me--and
should I have them stand as I introduce them--is my lovely
wife, Suzie, who is now sitting here, and our above average
children, Patrick and Meredith--Meredith may have to jump up to
be seen--age 11 and 8, respectively.
Also with me are my brothers, Dan and John, who both
practice law in Milwaukee, Wisconsin. And my nieces, Kate,
Alana and Kara, and nephew, Will.
And if you'll indulge me, just to say representing dozens
and dozens of cousins around the world is my cousin, Mary
Frankenberry.
Also listening on Webcast back in Milwaukee is my own
sainted mother, Miriam Conley, and the best in-laws one could
ever hope to have, Bob and Sally Birmingham. And looking down
on these proceedings are my late father, Edward M. Conley, and
brother, Tim.
Senator Kohl. Great. Thank you all for being here. Mr.
Conley, although you are bound by the precedent of your circuit
and the precedent of the U.S. Supreme Court, as a Federal
Judge, you will be called upon to decide cases where there is
no precedent or where the precedent does not clearly determine
the outcome.
How do you intend to approach these kinds of cases?
Mr. Conley. Thank you, Senator. I think at the end of the
day, the best you can do is look at the law, to understand the
facts to the best of your ability, and to reflect that in your
decisionmaking to the parties so they appreciate that you have
understood both, and then to reach a decision that you think is
consistent with the best interpretation of the law and
precedent to that point.
Senator Kohl. Why are you seeking to be a Federal Judge,
Mr. Conley.
Mr. Conley. Well, Senator Feingold alluded to a very big
part of it and that is that I am at a point in my career where
I had always assumed I would be doing something in public
service and this was an exceptional opportunity.
The judge I clerked for, Judge Fairchild, said that
becoming a judge is something that happens to you along the
way, and it feels, and it felt, and I have seriously considered
in applying, that this was the time and the place for me to do
this work, and I'm honored to have the opportunity.
Senator Kohl. Mr. Conley, I think----
Mr. Conley. The Senate agreeing.
Senator Kohl. Of course. I and I think most of us believe
that life experiences do influence the decisions that people
make inevitably, but judges, more than anyone else, have a duty
to ensure that they do not cross a line, to allow their
background to inappropriately influence the outcome of cases.
So we ask you, where do we draw the line and at what point
does personal experience improperly impact judging? How have
you and how will you ensure that your personal experiences do
not improperly influence your judicial decisions?
Mr. Conley. I think it's the obligation of every judge to
try to leave their own prejudices at the doorstep and that
certainly will be my No. 1 goal to bring fairness to the
proceedings for the parties and for the larger community. And
beyond that, I think you can only do your best.
Senator Kohl. Thank you. Thank you very much, Mr. Chairman.
Senator Schumer. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. Mr. Conley, can
you tell us more about the Western District's neutral evaluator
program that you participated in and based on that experience,
as well as your experience as a litigator, what other programs
do you intend to institute as a judge to help parties reach
amicable resolutions?
Mr. Conley. Well, the early neutral evaluation program was
something that was instituted many years ago by the Western
District of Wisconsin and it's an effort, where both parties
have an interest in addressing the possibility of resolution at
an early stage, to bring in an experienced litigator to talk
through the issues, to take written submissions, and to try to
work through what might be a result, including giving an
indication to the parties where you think the result may come
out if they decide not to proceed.
It's been, I think, a generally successful program,
although not used as often as one might hope. But it's one I
very much enjoyed being a part of. And I certainly agree that
as the cost of litigation has skyrocketed, that those kinds of
alternative dispute resolutions are something the courts have
to look at carefully.
As a Federal Judge, if I were lucky enough to be confirmed,
the general practice in the Western District is not to have the
presiding judge participate in those things. I think it's a
very difficult thing for the presiding judge to do.
And I would certainly encourage parties to pursue those
avenues and there are some through the magistrate and the clerk
of the court to do that, but I would expect that as a sitting
judge, my role would be limited in terms of that, only because
of the ethics of being perceived to push parties toward a
resolution that they may not otherwise want to reach.
Senator Feingold. Thank you, Mr. Conley.
Justice Carbon, thanks to the Violence Against Women Act,
many improvements were made to the justice system in response
to violence against women. However, especially in these
economic times, the reality is that many women feel unable to
escape abusive situations; not because there are not laws to
protect them, but because they are financially dependent on
abusers.
The Transitional Housing Assistance Program grant is one
example of how the Office on Violence Against Women helps meet
the economic needs of victims. Are there any other ways you
would plan to address the grave economic difficulties that
these victims face?
Judge Carbon. Thank you, Senator. May I have your
permission in thanking the President before I respond to your
question?
Senator Feingold. Fine with me.
Judge Carbon. Thank you. I am deeply honored to be here
this afternoon and would like to take this opportunity to thank
Senator Schumer and others on the Committee for your taking the
time to conduct the hearing here this afternoon.
I am deeply honored to be nominated by President Obama for
the position of Director of the Office on Violence Against
Women and, if I am so lucky as to be confirmed, to have the
privilege of serving in this position.
I would also like to thank the Vice President and the
Attorney General for their confidence in supporting me in this
nomination. I know that the issue of violence against women is
extremely important to this administration, and so I am
particularly humbled to have the nomination and hope that I
will secure your confidence, as well.
And if I may have your indulgence, I would love to be able
to introduce my guests who are here this afternoon.
Senator Schumer. I was trying to change the order a little
bit----
Judge Carbon. I'm so sorry.
Senator Schumer [continuing]. To give our Wisconsin
colleagues a chance to ask questions for Wisconsin, but Senator
Feingold had asked you a question. So maybe we will have--if
this is all right with the panel--each of the witnesses make a
brief statement and introduce their families. So continue. I
think you are right to do that, Judge Carbon.
Judge Carbon. My apologies, Senator Feingold. I'm so sorry.
I would love to introduce my husband of nearly 32 years,
Larry Berkson, who is here. Also present with me this afternoon
is my brother-in-law from Madison, Wisconsin, Dr. Michael
Corradini.
I also have a colleague who I hope has been able to join
this afternoon, the chief judge from the D.C. Superior Court,
Lee Satterfield. Also, a colleague of mine from Portland,
Oregon, Hon. Dale Koch, who has joined this afternoon. The
Executive Director of the National Network to End Domestic
Violence, attorney Roberta Valente, is here.
The co-Executive Director of the Legal Resource Center on
Violence Against Women, attorney Darren Mitchell. And a very
dear friend of mine from the Office on Violence Against Women,
attorney Nadine Neufville, who has joined this afternoon. And
there are many others who are here for whom I'm very grateful.
So with that indulgence, I thank you very much, Senator.
Senator Schumer. Thank you very much, Judge Carbon.
Professor Peterson, would you like to make a brief opening
statement and introduce your family?
Ms. Peterson. Thank you. I very much would like to thank
the President, also, for the nomination. And to Senator Murray
and Senator Cantwell, I'm most grateful for those generous
introductions.
With me today is my husband, Frederick Peterson, my husband
of nearly 39 years; our daughter, Miranda Darby; and, her
daughter, Aurora, newborn, who is home with her husband, Tom
Darby, and they're watching via Webcast, as is my son, Alex,
who is watching in Hong Kong, where he's studying law.
With us also today is my sister-in-law, Sherry Shipley, and
her husband, Don Shipley; longtime friends, Karen Jones Walcott
and John Winthrop Walcott, Tom Krzyminski, Christine Nickerson,
and some former students who are becoming colleagues, April
Hare, L.D. Quintanilla, Brandon Roche, and a current student,
Shawna C. Murphy.
Thank you, Senator.
Senator Schumer. Thank you, Professor Peterson.
Since Senator Mikulski could not be here, as you know, she
is recovering from that little fall she had, I will do a brief
introduction of Professor Laub.
President Obama nominated Professor John Laub to be the
Director of the National Institute of Justice. He is currently
the distinguished university professor in the Department of
Criminology and Criminal Justice at the University of Maryland.
Professor Laub's academic career in the field of
criminology and criminal justice has spanned almost 30 years
and he has published two award-winning books, a wide variety of
articles about crime, juvenile justice, criminal victimization,
and the history of criminology.
He received his BA from the University of Illinois and
received one of the most outstanding MAs and PhDs that one can
receive in this field from the State University of New York's
Albany School of Criminal Justice.
Professor Laub, if you would like to make a brief opening
statement and introduce your family, that would be great.
Mr. Laub. Thank you very much, Senator Schumer. And thank
you to the other Senators.
First, I would like to thank the President and the Attorney
General for having the confidence in my abilities and for
nominating me for this position.
I also would like to take this opportunity to introduce my
family. My wife is here, Joanne DeSiato; my daughter, Calies
Menard-Katcher, and her husband, Paul Menard-Katcher. And I
want to particularly thank Calies and Paul, who are both
doctors in Philadelphia and were able to rearrange their
schedules to be here with me today, and I appreciate that.
I also know that there are numerous colleagues and students
from the University of Maryland and I'd like to thank them for
their support.
Again, thank you for having me here today and I look
forward to answering your questions.
Senator Schumer. Thank you, Professor Laub. Senator
Feingold, did you finish your questions?
Senator Feingold. I had asked a question.
Judge Carbon. Senator, you do not need to repeat it. I'm
happy at this time to answer the question. Thank you.
The issue of the tough economy on victims of domestic
violence is extremely important. We all know that a bad economy
does not cause domestic violence, but it can certainly
contribute to problems which victims face and, in particular,
it is difficult when potentially neither adult has a job. So
they are dealing with difficult financial circumstances and
especially the issue of transitional housing and the need to
potentially relocate if there is a protective order or another
safety measure which is taken so that the victim may be safe.
That's an issue about which we are all concerned and I am
especially pleased that the Senate has addressed this issue and
that you have been in support of transitional housing.
With regard to what else can be done, I am pleased that the
Violence Against Women Act is undergoing study for its
reauthorization and would hope that additional funds for
transitional housing will be considered, amongst other issues,
such as legal assistance for victims when they are in court,
whether it is with regard to a protective order hearing or some
other type of matter.
These are extremely important programs and, if I am so
lucky as to be confirmed, I would very much welcome the
opportunity to work with you on other ideas that we could do to
assist in assisting victims.
Senator Feingold. Thank you.
Senator Schumer. Senator Sessions. I am going a little out
of order here, but I am trying to alternate.
Senator Sessions. Well, I would be delighted, if some of
our colleagues want to go first and excuse themselves, because
I am going to be here to the end now.
Senator Schumer. Senator Franken.
Senator Franken. Great. Justice Carbon, you have written
that courts are a safety net for social ills. How do you feel
about mandatory arbitration in employment contracts which could
deny workers access to courts, even in circumstances of sexual
assault or harassment?
Judge Carbon. Thank you, Senator Franken. As a judge, I
believe that any victim ought to have a full panoply of legal
remedies available to him or her. And so I would have some
concern if we were to bar a victim from the opportunity to have
his or her day in court.
So I would have concern about that and would want to study
the issue further to determine whether that would be a viable
remedy. But I think that it is a grave concern if we foreclose
the opportunity for a victim to have their day in court to be
fully heard.
Thank you.
Senator Franken. Thank you. Mr. Conley, you have served as
a mediator and arbitrator in a variety of cases, including
cases involving Title VII sexual discrimination claims and
Americans with Disabilities Act claims.
How do you feel about employment contracts that require
mandatory binding arbitration of Title VII or other civil
rights claims?
Mr. Conley. Senator, I can't say, although I've had some
experience with labor law and that I've looked at those issues
or have litigated them, with a few limited exceptions. I
understand that the Federal courts are moving towards greater
recognition of the right of arbitration and, obviously, the
Senate and Congress as a whole will have something to say about
whether or not those rights will be imposed.
But I haven't looked at the issue enough to give you an
answer beyond that.
Senator Franken. I am talking about mandatory binding
arbitration.
Mr. Conley. I understand, Senator, and I'm not, at this
moment, aware of whether mandatory binding contractual
obligations, whether through a collective bargaining agreement
or through some other contractual means, are overridden by
those acts. I suspect, as I think about, that they are and I
don't know what the current state of the law is.
So I really can't answer beyond the fact that I would look
closely at what the law said, were I lucky enough to be
confirmed.
Senator Franken. I am going to return to a question I asked
the attorney general this morning. Professor Laub, last week,
the National Institute of Justice, the institute you hope to
run, released a remarkable report.
That report found that there is forensic evidence from tens
of thousands of unsolved murders and rapes that have never been
sent to crime laboratories and that is sitting untested in
police departments around the country. Forty percent of those
pieces of evidence actually had DNA in them.
As Director of the National Institute of Justice, what
would you do to ensure that the NIJ continues to produce such
hard-hitting reports and that the Department of Justice pays
such reports the attention that they deserve, and,
specifically, this one?
Mr. Laub. Thank you, Senator Franken, for that question.
This is an important issue and, clearly, it's an important
issue with respect to the National Institute of Justice study
and what Attorney General Holder said earlier today in a
hearing.
And it seems to me that what one needs to do is to begin to
investigate what is the reason for the backlog; is it a
management issue; how does that vary by types of crime; what do
we know about the size of the police agencies with respect to
where that evidence is backlogged.
Assuming I'm, hopefully, lucky enough to be confirmed for
this position, it's something that's quite important to the
National Institute of Justice, because the backlog means that
there's a delay in justice for victims of crime and it's a
delay in holding offenders accountable from the crimes that
they may have committed.
Senator Franken. Thank you. Thank you, Mr. Chairman.
Senator Schumer. Senator Sessions.
Senator Sessions. Thank you. Ms. Carbon, it is good to have
you with us. I know my friend cares about the arbitration
question, but make no mistake, all of us believe that if
somebody sexually assaults a person, that is not subject to
arbitration.
We did have a dispute over whether, if the individual sued
the company that hired the man, whether or not that matter
should be arbitrated or actually go to litigation, and the
court held, with Mr. Franken's view, eventually, that they
would have that right, at least in the instance that was
involved there.
I will just briefly ask a few questions. Let me just say to
each of you and to the people that are here how the system
works. Each one of these nominees has undergone a background
check. ABA has reviewed your qualifications. Lawyers in the
state and others have opined as to your fitness for office. And
out of all that, the President, after probably having the
Department of Justice and others review the situation, has seen
fit to nominate you.
Once all that occurs, you have this hearing, in which
questions can be asked openly and then it would be set for a
markup, we call it, at Chairman Leahy's discretion and then any
Senator can ask that that be held over one week without making
any aspersions on anybody's character.
Usually, I believe 1 week is probably healthy, because
maybe there is somebody somewhere that just read about you and
has got a complaint that they would like to float and it gives
a chance to deal with that.
Then the second week, it comes up for a vote in the
Committee and then it goes to the floor and then the majority
leader will call you up for a vote when he sees fit and he can
do that by a request of unanimous consent, and most judges move
forward on that unanimous consent, probably 75-80-plus percent.
Some that have problems that individual Senators object to
or have other concerns about could find it more difficult. That
is kind of where we are. I hear good things about most of you--
all of you as nominees, and will ask a few questions.
Professor Peterson, you talked about one of your more
significant cases is dealing with an illegal alien case who had
been deported on a prior drug conviction and then reentered the
country and you said the defendant faced an 8-year minimum
sentence and another deportation, had come in and with no
likely opportunity to return lawfully to the United States.
The reason this case was significant to me was I gained a
new level of understanding of the issues that illegal aliens
face trying to return to the United States after deportation.
Would you, as a judge, be willing to enforce the law that
says that if you are convicted of a drug offense and are
deported, you are not entitled to come back in the country?
Ms. Peterson. Absolutely, Senator.
Senator Sessions. I do not think there is anything unfair
about that. We cannot have everybody in the world come to
America and if, while they are in an illegal status, they are
convicted of a serious crime, they ought not to be able to
expect to stay in the country, I think.
Mr. Conley, you had an interesting case when you
represented the bar about utilizing lawyers' mandatory fees and
political contributions. You were a good lawyer for the Bar
Association.
And then later, I guess--I do not know how that case came
out in Wisconsin, but you filed a brief in support of, I
believe, California.
Mr. Conley. Yes.
Senator Sessions. Keller v. State Bar of California,
raising that same issue. I guess the complainants were saying
``It is not right to take my money that I have to pay to be a
lawyer and then turn around and give it to some skunk
politician that I do not agree with.''
The Supreme Court agreed with that view; did they not? Is
that what they held? I just see my notes here.
Mr. Conley. I don't recall the Supreme Court using the term
``skunk.'' But I understand, in Keller v. State Bar of
California, that there was a ruling in terms of narrowing those
areas in which a mandatory bar could engage in what was
referred to as speech or political speech activities.
I don't think there was ever any question of a mandatory
bar making contributions to individual politicians, skunk or
not.
Senator Sessions. What kind of contributions were they
talking about?
Mr. Conley. Yes. But, rather, the activities, the speech
activities of a mandatory bar, which may be as innocuous as
arguing for a procedural change in how one brings a particular
law or enforces a law to what are sometimes considered more
controversial issues among members of the bar themselves.
The question is whether or not, in a mandatory bar setting,
they can take those positions and use funds of mandatory nature
to take those positions, and, ultimately, the determination in
Keller was that there would have to be segregated fees, unless
the political activity was directly related to the important
functions of the bar, which were the administration of justice.
And I believe there was one other, which I have to go back
and look at the decision. Administration of justice was the
primary one that would justify use of even mandatory fees.
Otherwise, you would have to segregate and be refunded.
I should say, too, that this was a position that I took on
behalf of the state bar as part of our firm's accepting of a
pro bono representation. So where that should come out----
Senator Sessions. Well, it is an interesting question. I
have no complaint about you taking that view as, I guess, a
retained attorney.
Mr. Conley. As a pro bono. We didn't get paid for it, but I
was certainly an advocate.
Senator Sessions. Well, I usually do not volunteer to take
positions I do not agree with.
Mr. Conley. Senator, in fairness, it was our firm who made
the decision, not I.
Senator Sessions. All right. Very good. Mr. Laub, you wrote
an article, Let the Water be Wet, Let the Rocks be Hard,
Anarchism as a Sociology of Quality of Life, and you stated
that ``Freedom is an active participation in a society in which
all the relations of its members are based not on power, but on
the principle of mutual aid.'' You define mutual aid as, quote,
``leaving behind the world of power, resisting institutions and
relationships that govern.''
Well, one thing I would say to you, it shows we read what
you do and the fact that you may not get many other questions
indicates maybe we did not--people did not find anything you
have said wrong. So that is something you should take some
pleasure in.
But what did you mean by that, Mr. Laub.
Mr. Laub. Well, Senator, I thank you for that question. It
was an article that I wrote when I was a doctoral student in
1978. And knowing that you or your staff would find that
article, I thought it would be best to bring it forward.
And I reread the article 30 years out and, frankly, didn't
understand much of it. But I think that, in all honesty, one of
the issues that I've been quite concerned about is quality of
life.
In fact, one of the first articles I wrote was fear of
crime as an issue respecting quality of life. And I think what
that article emphasized was the importance of thinking about
how people are not only personally responsible, but socially
responsible with respect to mutual aid.
I have to say that if you look at my academic career since
that article was written, most of what's in that article has
been repudiated. So I think the evidence is clear where my
feelings are today.
Senator Schumer. I think I let Senator Sessions go on for
sort of two rounds, trying to be informal here. I am going to
call Senator Klobuchar and then Senator Feingold for 5 minutes
each.
Senator Klobuchar. Thank you very much. Thank you, Chairman
Schumer. Thank you to all of you. Congratulations.
I am going to focus my questions with Judge Carbon, because
of the fact that I was a prosecutor for 8 years and, actually,
Hennepin County in Minnesota, Minneapolis, is very well known
for the work that we have done with domestic violence, in
particular, the Domestic Violence Service Center, which was one
of the first one-stop shops for victims of domestic violence,
where there is a place for their kids to play. Shelters are
represented there, as well prosecutors and police.
We have found it to be incredibly helpful for those people
who just cannot quite handle running through the government
center, which I think is hard for any lawyer to figure out
their way through the red tape, much less a victim of domestic
violence.
I wanted to talk with you, first of all, about how your
judicial expertise could help you in this job in a different
way maybe than other people who have held the job before, from
what you have seen with domestic violence cases.
Judge Carbon. Thank you very much, Senator. In my work as a
judge, and I have been a judge now for about 18 or 19 years,
much of that time has been focused on issues of domestic
violence. I have done work within the state and, also, across
the country, national leadership work with the National Council
on Juvenile and Family Court Judges, training my colleagues,
and, as well, across the world in working with judges and
others on issues of domestic violence.
I think the background that I would bring to this position
relates to the importance of the judicial community within the
Violence Against Women Act. One of the first responsibilities
is that the director be the link to the judicial community.
There has not been a judge in this position before and I
think that my experience as a judge, working with many
different multidisciplinary groups on many different issues,
all within the umbrella of domestic violence, would enable me
to work well, I would hope, if I am so lucky to be confirmed,
with the many different groups on expanding that role and
engaging my colleagues across the country in these issues.
Senator Klobuchar. In fact, do you think there could be
more work done on a cross-jurisdictional basis? I know they
stopped funding for services, training officers and
prosecutors. There is a current relationship there of cross-
jurisdictional work.
Do you think we could do more? Let me just give you an
example. In our county, we actually started something like they
would do in a hospital when something goes wrong with the
surgery, where the people come together and review domestic
violence cases, if there has been a long history of domestic
violence that sadly ended in a murder, to see what went wrong
in the system. It was a very good way to come out with some
policy recommendations.
Could you give some ideas there with the multi-
jurisdictional work?
Judge Carbon. Absolutely. And first, let me commend the
State of Minnesota, the work that has been done in Minnesota is
extraordinary. And you continue to be a national leader in work
that has just recently been released on safety audits and
managing the overall breadth of walking through the system as a
victim and the many different intersection points for victims,
so that we can help improve the process.
One project that I've done that relates to the issue you're
raising here is to chair New Hampshire's Domestic Violence
Fatality Review Committee. And as you may or may not know, that
is a quintessential way, under the Violence Against Women Act,
to bring communities together to address domestic violence.
In its worst, a domestic homicide is as bad as it gets. And
so when we bring all of the professions together to study
domestic violence homicides, we can try to understand where
breakdowns in the system occurred so that, ideally, we can
prevent future homicides from happening.
We don't limit our work to domestic homicides. We also look
at how the entire system works together, how judges work with
law enforcement and prosecutors and advocates and so forth, so
that we can make the overall system of domestic violence
improved for safety and accountability.
Senator Klobuchar. The other thing we have done in our
state is there is actually an outside group, a nonprofit group,
called Watch, and they have these red clipboards and they go in
and watch all of the domestic violence cases, evaluate the
judges, put out a newsletter. I thought that was helpful.
But my last focus just would be on when kids are present
when there is domestic violence. We used to have a poster in
our office that said--with a picture of a mother with a band-
aid on her nose, holding a baby, and it said ``Beat your wife
and it's your kid who will go to jail,'' to show the cycle of
violence that occurs when children are in the home where there
is domestic violence.
Do you want to talk about any ideas you would have there
with child protection or things you think need to be done in
coordination on children's issues when there is domestic
violence?
Judge Carbon. Absolutely. One of my own priorities, if I'm
lucky enough to be confirmed for this position, is to focus the
energy to the Office on Prevention Work and particularly around
children who are exposed to violence.
There is a tremendous cycle of abuse and if we do not
institute enough prevention programs, we will see children
growing into the criminal justice system, both as potentially
other perpetrators or further victims.
I'd also like to see the energy of the office focused
around teen dating violence, because so often, people are in
very unhealthy relationships not knowing that there is a better
way.
So I think that the work that we do around custody in
domestic violence, around prevention programs for children who
are exposed to violence, and around teen dating violence will
be extremely important for the office.
Senator Klobuchar. Thank you very much. I also wanted to
point out that I had a very pleasant trip to your state this
summer, visiting Senator Shaheen. My other committee, I chair
the Tourism Subcommittee, and we did an event in front of--now,
let me say this right--Lake Winnipesaukee. Is that right?
Judge Carbon. You got it.
Senator Klobuchar. I was always mortified I was going to
embarrass Senator Shaheen and say it wrong. So that did not
happen.
Judge Carbon. We would welcome you back anytime.
Senator Klobuchar. Thank you very much. Thank you, Mr.
Chairman.
Senator Schumer. I thank all the nominees, and that
concludes the hearing.
[Recess.]
Senator Schumer. We are going to resume the hearing just
for a minute. I was out of the room on a call about health
care.
I just want to, in the resumed hearing, ask unanimous
consent to put Senator Leahy's statement in the record, to put
letters of support for Judge Chin into the record, and
acknowledge that the record will stay open for one week for
other statements.
And for the second time, the hearing is adjourned.
. I've been here longer--in the Senate longer than any
member of this Committee. We've had several long--ones but I've
never known a time, whether somebody was for or again, that
needed more than 3 weeks to get the answers to my questions.
We'll stand in recess. I congratulate you all, and I thank
you all for being willing to answer your Nation's call in this
way. Each one of you have answered the--call before and I
appreciate you doing it again.
[Whereupon, at 4 p.m., the hearing was adjourned.]
[The biographical information follows and then questions
and answers and prepared statement appears as a submission for
the record.]
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NOMINATION OF O. ROGERIEE THOMPSON, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE FIRST CIRCUIT
----------
TUESDAY, DECEMBER 1, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, Pursuant to notice, at 10:01 a.m., Room
226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse
presiding.
Present: Senator Franken.
PRESENTATION OF O. ROGERIEE THOMPSON, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE FIRST CIRCUIT BY HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The hearing will come to order.
Today we will consider President Obama's nomination of O.
Rogeriee Thompson to the United States Court of Appeals for the
First Circuit. I am very grateful to the Chairman of the Senate
Judiciary Committee, Chairman Leahy, for the opportunity to
chair this particular hearing, and I do so with great pleasure
since the nominee is a distinguished Rhode Island judge, and a
friend of many years' duration. I welcome Justice Thompson and
her family and friends to the Judiciary Committee and to the
U.S. Senate.
In particular, I want to welcome her husband Bill who is
here, and her daughters Reza and Sarah. Their son is away in
Spain but is here in spirit. And also, her brother-in-law, Ed
Clifton, who is another distinguished jurist, along with her
husband Bill. It's quite a judicial family in Rhode Island. Ed
Clifton. It's wonderful to have you here, Your Honor.
Clifford Monteiro is here, who is a distinguished leader in
the NAACP and had a very long and distinguished career in law
enforcement in Rhode Island. I also want to welcome and have
the record reflect the presence of Congresswoman Christensen,
who has come from the House of Representatives to be here for
her friend and this family today. I am very pleased,
Congresswoman, that you could be here.
I particularly welcome to the Committee the senior Senator
from Rhode Island, Jack Reed, who will introduce Justice
Thompson at the conclusion of my brief opening statement.
It has been a great honor to serve with Senator Reed in the
Senate, and it has been a pleasure. He showed great courtesy in
allowing me to assist him in identifying the best possible
nominee to serve on the First Circuit, which serves our home
State of Rhode Island. I was proud to join him in recommending
Justice Thompson to President Obama, and I thank the President
for recognizing her expertise and good judgment.
Justice Thompson comes before the Committee with an
exceptional record of achievement that speaks both to her
remarkable talents and her lifetime of hard work. Born in
segregated South Carolina, Justice Thompson pursued the
opportunity to finish high school in Scarsdale, New York, even
though it meant moving away from her family at an early age.
After excelling there, Justice Thompson went on to graduate
from Rhode Island's Brown University and to receive a law
degree from Boston University. With those academic credentials,
one might have expected Justice Thompson to pursue a lucrative
career in the corporate realm, but she instead chose to employ
her talents in under-served communities in Providence. I am
very glad that she did.
A successful career in legal practice led to Justice
Thompson's appointment as an Associate Judge on the Rhode
Island District Court, and subsequently as an Associate Justice
on the Rhode Island Superior Court. Justice Thompson now has 21
years of judicial experience and a record of respect from all
corners of Rhode Island's bench and bar. Her courtroom,
deservedly, has come to be known as a place in which every
party can expect a fair hearing.
Justice Thompson's extensive experience on the Rhode Island
bench prepares her well for the work of the First Circuit. Not
only has it allowed her to consider the customary range of
Federal issues that State courts regularly face, but it has
allowed Justice Thompson to demonstrate the proper role of a
judge: to respect the role of the legislature; to decide cases
based on the law and the facts; to not prejudge any case, but
listen to every party that comes before them; to respect
precedent; and to limit themselves to the issues that the court
must decide.
But Justice Thompson not only is an exceptionally qualified
nominee, she also is an historic nominee, as she would be the
first African-American, and only the second woman, ever to
serve on the First Circuit Court of Appeals. Indeed, Justice
Thompson has a habit of breaking barriers, as she was the first
African-American woman appointed to Rhode Island's District
Court and to Rhode Island's Superior Court. It is fitting that
she should be the one to make another piece of long-overdue
history. She is a worthy nominee for this historic occasion.
I look forward to working with Chairman Leahy and my
colleagues as this nomination proceeds through the Committee,
and ultimately to confirmation.
I see that Senator Franken has joined us. I would
customarily yield to the Ranking Member, but there is no
Ranking Member present. Should a member of the Minority party
come, I will be delighted to accept their opening statement. If
no one does, the record of this proceeding stays open for a
week so that statements and questions for the record might be
included.
But before we turn to Senator Reed, let me ask my
distinguished colleague from Minnesota if he wishes to make an
opening statement at this juncture.
Senator Franken.
Senator Franken. No, not at this juncture. But I'd love to
hear from the senior Senator from your State, and what he has
to say about our nominee.
Senator Whitehouse. And without further ado, Senator Reed,
the floor is yours.
PRESENTATION OF O. ROGERIEE THOMPSON, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE FIRST CIRCUIT BY HON. JACK REED, A U.S.
SENATOR FROM THE STATE OF RHODE ISLAND
Senator Reed. Thank you very much, Mr. Chairman. Thank you,
Senator Franken. Mr. Chairman, thank you for your kind words,
but also for your advice in this collaborative effort to
identify for the President worthy and suitable nominees for our
courts in Rhode Island. I am pleased and proud today to be here
to introduce Associate Justice Rogeriee Thompson, the nominee
for Rhode Island's traditional seat on the United States Court
of Appeals for the First Circuit.
We are joined, as you've indicated, Mr. Chairman, by a very
strong family contingent: Judge Thompson's husband Bill, their
daughters Reza and Sarah. As you indicated, their son Will is
in Madrid, studying. We're also honored to have Ed Clifton and
Audrey Clifton. This is a dynamic group of lawyers, attorneys,
and public services in the State of Rhode Island. It's a
remarkable family, and I'm so pleased they're here.
We're also joined by Chief Judge Eric Washington of the DC
Court of Appeals. Thank you, Judge, for coming.
I also want to recognize Cliff Monteiro, who has been an
advocate and someone whose advice and assistance we both
treasure immensely.
We are here today because we have identified a woman with
the integrity, the professionalism, and the experience
necessary to serve our country as an appellate judge with great
distinction. Serving as an appellate judge is a unique
opportunity, and this lifetime appointment should be for those
who have demonstrated they have the intellectual gifts, the
experience, the judgment, maturity, and temperament to take on
this special role. Judge Thompson has all of these attributes.
Senator Whitehouse and I did not reach our conclusion
without great thought and review; indeed, we encouraged all
interested and qualified attorneys in our State to apply. We
interviewed 30 candidates for our State's judicial vacancies.
We reviewed their education, analyzed their professional
experience. We examined what motivated their choices in life
and their views about the role of the law. We thought long and
hard about their involvement in our community and what we
personally knew of each applicant. After these deliberations,
we came to the conclusion that Judge Thompson was uniquely
qualified to serve on the First Circuit.
In an era when some judges have little experience in
courtrooms, Judge Thompson has over 20 years of service on the
bench. She has convicted criminals, mediated contractual
disputes, overseen complex commercial cases, and dealt fairly
and firmly with those in her courtroom--and I must emphasize
``fairly'', which is one of the hallmarks of a good judge.
Justice Thompson's reputation for impartiality and
character in our State is obvious and uncontroverted. She has
been nominated by two Republican Governors, first to serve on
the District Court in 1988, and then to serve on our Superior
Court in 1997. In both instances, those nominations were
overwhelmingly confirmed by our General Assembly.
Justice Thompson's background embodies the classic American
success story of intelligence and hard work and faith. Indeed,
Justice Thompson was born in South Carolina when segregation
still ruled. She went from those humble beginnings to attend
Brown University, and then to Boston University Law School,
where she excelled. She then chose public service as a staff
attorney for our legal aid system. Later, Justice Thompson was
an Assistant City Solicitor in Providence, was in private
practice, and developed an expertise in Native American law
that took her across the country.
Yet what really makes Justice Thompson unique is her
decency and deep involvement in our community. She has aided
numerous charities and supported countless nonprofit
organizations. She has supported higher education by serving as
a trustee of Brown University and Bryant University. She has
answered the call of a Federal/State jurist as Rhode Island's
courts grappled with the issue of non-English speaking
litigants. She was critical in helping to resolve that very
critical issue.
And I have come to know her and respect her through our
shared support and involvement in Dorcas' Place, an adult
literacy program, and also her involvement in our largest
environmental organization, Save the Bay, and her involvement
in Rhode Island's College Crusade, an initiative that
encourages talented young people to stay in school and graduate
from college, regardless of their circumstances. She has done
all of this with integrity and humility.
At the same time, she and her husband Bill, who is a
District judge in Rhode Island, have raised a wonderful family
in my hometown of Cranston. Indeed, their daughters, Reza and
Sarah, are here today, as indicated, and as I said previously,
Will is here in spirit, urging his mother on.
Justice Thompson's confirmation to the First Circuit is
important to me. She is someone I know and respect. She has
earned the trust of Rhode Island's legal community through her
demeanor, through her thoughtfulness, and through her respect
and regard not only for the law, but for those who come before
her court.
Last, she has the real-world experience in the State courts
which will aid in her deliberations on the First Circuit. I
urge you to ask her questions. She will respond with the
preparation and intellectual skills she has demonstrated
throughout her career. At the conclusion, I would respectfully
ask that you send her nomination to the full Senate for
confirmation.
Thank you, Mr. Chairman.
Senator Whitehouse. Thank you, Senator Reed. I am very
grateful that you took the trouble to be here today. As we know
in this body, the health care debate began in earnest yesterday
after years--some would say decades--of waiting. As a member of
the important Health, Education, Labor and Pensions Committee,
I know you have many important responsibilities, both in that
debate and in your busy office.
So I appreciate very much that you've taken the time to be
here, and I would now call forward the nominee to be sworn and
to take her seat.
[Whereupon, the nominee was duly sworn.]
Senator Whitehouse. Thank you. Please be seated.
Welcome. I understand that you do not have a prepared
opening statement?
STATEMENT OF O. ROGERIEE THOMPSON, NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE FIRST CIRCUIT
Justice Thompson. Senator, I do not have a prepared opening
statement, but I would like to take an opportunity to, first of
all, thank President Obama for nominating me, and to also thank
you and Senator Reed for forwarding my name to the President
for consideration.
I have been honored today to have a lot of my family
present to support me and to show me their love, and I would
just like to once again acknowledge them personally.
My sister is very enthusiastic about today, so I have lots
of relatives who are here who live in the DC area, and I really
appreciate them being here to support me. First, I would like
to thank my husband, William Clifton, who is an Associate Judge
of the Rhode Island District Court, for putting up with me all
of these years.
I would like to thank my daughter, Reza Clifton, for being
here, my daughter Sarah Clifton, who is sacrificing her own
swearing in today. She just recently passed the California bar
exam, and today was her swearing in date, but she's here to
support her mother and I'm most grateful for her presence.
Senator Whitehouse. Well, we congratulate her.
Justice Thompson. Son Will, who is watching it by the
webcast. So, hello, William. Have fun.
My sister, LaVonne Thompson, who is an Assistant U.S.
Attorney General in the Virgin Islands, and she's flown here
from the Virgin Islands to be with me. My brother-in-law,
Edward Clifton, who is my colleague on the Superior Court
bench, and his wonderful wife Audrey. My cousin, Eric
Washington, who is the Chief Judge of the DC Court of Appeals,
and his wife Cheryl. I think my niece has gotten here, Camille
Clifton, whose father is retired State Department. She is the
ambassador, because he is now living in Germany, and their
daughter, Sophey Howery.
My cousin, David Bedenbaugh and his son Daniel are also
here with me today. Daniel attends the Excel Academy in
Riverdale, Maryland. His class has made my nomination a class
project in Civics, so I hope they are getting a lot out of the
proceedings.
Also present here today: my cousin Jannine Henderson,
Janell Jordan, Daniel Womack, Jr., Judy Rogers, Kurt
Bedenbaugh, Renee Brown, Tony Graham, Valery Gladney, and I
want to thank my dear friend, Cliff Monteiro, for flying down
today to be here with me. Another old friend just tapped me on
the shoulder, Tom Baker, who is in the DC area. Attorney Baker
is a former U.S. Ambassador to Zimbabwe. So, thank all of you
for being here today.
Senator Whitehouse. Well, we are very grateful to have such
a distinguished and illustrious group of friends and family
whose service to the State and Federal bench, to the U.S.
Department of Justice, to the U.S. Department of State, and in
other places, I think, does great credit to the nominee.
The question that I would ask--and I think it will help
fill out the record--is: Justice Thompson, you have spent your
career in the State courts of Rhode Island. You are going to go
onto an appellate court in the Federal system. Can you explain
the circumstances in which, during the course of your career,
you have had to review questions of Federal law or U.S.
constitutional law in your role as a State court judge, and how
that has prepared a foundation for you to deal with the Federal
law and U.S. constitutional law questions that the First
Circuit will consider?
Justice Thompson. Well, Senator, as you are aware, the
Rhode Island State courts have concurrent jurisdiction over
Federal issues, and as such if Federal issues are presented to
our courts, we don't have the luxury of saying, no, I don't
want to hear that because I'm not a Federal court judge. Those
issues routinely come before the court, particularly in areas
of criminal proceedings where we are called upon to rule upon
criminal procedure issues and substantive criminal issues
involving search and seizure, confrontation, rights of
defendants, right to counsel, selection of jury issues, and
many other issues which routinely come up in criminal law
cases.
In addition to that, there are Federal issues that come
before the court on the civil side of the calendar. In addition
to that, Senator, as you know, when State law is unclear about
a particular area, we are directed to look to the Federal
courts for guidance when they have laws that are similar to our
State statutes. And so in the context of my 21-year career, I
have been called upon to review Federal issues and to make
decisions on those issues.
Senator Whitehouse. You are confident that Federal law
would not be unfamiliar territory to you as a judge of the
United States Court of Appeals for the First Circuit?
Justice Thompson. Federal law would not be foreign to me,
Senator. But in addition to that, let me just say generally it
is not unusual for new issues--new legal issues, new legal
State issues--to come before the courts, the State courts on a
daily basis. Once again, we don't have the luxury of saying,
``I never sat on a case like that before, so go away''. Indeed,
the proper methodology for attacking new cases and new areas of
law is to delve into the research to get a firm appreciation
and understanding of that new and different law and to study
the cases, study the precedent, and make a judgment as to how
to apply that new law to the facts.
Senator Whitehouse. Well, I thank you.
As I reflected on this question before the hearing, I
recalled my 6 years in the Rhode Island Department of Attorney
General as a staff attorney in the State Attorney General's
Office. My recollection is that when I was involved in civil
matters in the Superior Court, it was actually almost unusual
for there to be a State law claim that I was involved in
because the Federal law and the issues that I was addressing,
particularly in civil matters, tended to be the cause of action
that plaintiffs were pursuing against the State. So at least in
my experience, I can concur with you that, as a State official,
one is deeply, deeply imbued in the Federal law, and appreciate
your comments in that regard.
I will turn, now, to my distinguished colleague from
Minnesota, Senator Al Franken.
Senator Franken. Thank you, Mr. Chairman.
Welcome, Justice Thompson. Congratulations on your
nomination.
Justice Thompson. Thank you, Senator.
Senator Franken. I was interested to see that you were
tribal counsel to the Narragansett Indian tribe. I am on the
Indian Affairs Committee here in the Senate, and I was
interested that you described that position as ``the most
challenging and stimulating legal work'' you have done as a
practicing attorney. Can you tell us more about that work and
how it's shaped your work as a judge?
Justice Thompson. Senator, when I was asked by the
Narragansett Indian tribe to be their tribal counsel, I bravely
said yes, but said yes at a point when I had very little
information, knowledge, or background about tribal law. As a
result of saying yes, I spent a full 2 weeks delving into
Indian law, reading every single thing I could find, until I
had a firm grasp of the myriad of issues that tribal
governments deal with in our country.
I represented the Narragansetts on every aspect of their
sovereignty issues. I represented them in negotiations with
BIA, with negotiations with the State over land issues, with
negotiations with the State involving Indian artifacts. Issues
also arose involving the Indian Child Welfare Act. I was the
first person to give information to our family court that there
was such a thing as the Indian Child Welfare Act and gave them
instruction as to how that act impacted the proceedings of the
State family court. That is just a few of the areas in which I
represented them.
My experience with the tribe gave me a rich appreciation of
the history of the Native people of this country, and I have
continued to enjoy a friendship with the members of the tribe
and have a great deal of respect for the work that they try to
do on behalf of their people.
Senator Franken. Thank you.
Normally we do have members of the Minority party here, and
actually they're very good about showing up for these things,
especially the Ranking Member. Normally--I was given this in
sort of my briefing about this hearing, was that Justice
Thompson is likely to be questioned about comments she made on
the importance of diversity.
Since the Minority party isn't here, if they were, they
would ask you about that. That would be upsetting to them. Not
terribly, but they would be concerned that when you put on your
robes, that you will just be a judge. So I just want to give
you a chance to answer the question that they would have asked.
I think diversity on the court is a great idea. But would it be
fair to say that when you put on your robes, that you'll judge
based on the law?
Justice Thompson. Senator Franken, thank you for the
question. It would certainly be incumbent upon me as a Federal
judge, just as it is incumbent on me as a State court judge, to
view every single person who comes before the court with the
utmost respect and afford them the utmost dignity. My job is to
make sure that I don't have preconceived notions about persons
or to come to any kind of proceeding with any kind of bias or
prejudice toward any person. My job is to make sure that I
examine the facts of a particular case without bias or
prejudice, apply the law to those facts, and try to afford the
litigants the justice which they deserve.
Senator Franken. Well, I think it's a great answer to a
very good question, which I wanted to have represented here,
because it wasn't when it normally would be.
Thank you very much. Once again, congratulations to you and
your entire family.
Justice Thompson. Thank you.
Senator Whitehouse. Well, without further ado, I think we
can conclude these proceedings. I take it as a positive sign
that our colleagues are sufficiently satisfied with your
reputation and qualifications that they have not felt the need
to come here and explore any areas of concern that they might
have had. I hope that the smooth sailing and passage that
you've had through this hearing continues on the floor, and
that we are able to move expeditiously on your nomination on
the Senate floor.
I note that Chairman Leahy has taken a keen interest in
this particular nomination. He has a statement in support that
he has filed that, without objection, I will add to the record
of these proceedings.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Whitehouse. I am sure, at the first opportunity
that he finds, he will try to obtain either unanimous consent
for your nomination to proceed, or a vote on it if that turns
out to be necessary. It may seem a bit disappointing that there
is not more action here today.
Justice Thompson. No.
Senator Whitehouse. But trust me, it is a good thing.
Justice Thompson. I am not disappointed, Senator.
[Laughter.]
Senator Whitehouse. I will close the hearing by relating
that the record of the hearing will stay open for an additional
week for any statements or questions for the record that my
colleagues seek to add into the record, or frankly, any other
materials that they seek to add into the record.
Justice Thompson.
Justice Thompson. One other person I forgot--I didn't know
she was coming, but she is here--is my cousin, Whitney
Washington, who also just passed the California bar exam. So,
she's probably missing her swearing in also.
[Laughter.]
Senator Whitehouse. Well, as I said, it's a very impressive
group and I'm glad you made sure that everybody was mentioned.
I am proud of you.
Justice Thompson. Thank you, Senator.
Senator Whitehouse. I am delighted for you. Senator Reed
and I both look forward to working hard to make sure that your
nomination proceeds forward, and we are delighted at the way
things have turned out so far.
So without further ado, the hearing is adjourned.
[Whereupon, at 10:31 a.m. the Committee was adjourned.]
[The biographical information follows.]
[Submissions for the record follow.]
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NOMINATIONS OF JAMES A. WYNN, JR., NOMINEE TO BE UNITED STATES CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT; AND, ALBERT DIAZ, NOMINEE TO BE UNITED
STATES CIRCUIT COURT JUDGE FOR THE FOURTH CIRCUIT
----------
WEDNESDAY, DECEMBER 16, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3 p.m., Room 226,
Dirksen Senate Office Building, Hon. Benjamin A. Cardin
presiding.
Present: Senators Klobuchar, Specter, Franken, Sessions and
Hatch.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Cardin. The Committee will come to order. Let me
thank Chairman Leahy for allowing me to chair this hearing.
I first want to acknowledge two of my former colleagues
from the House of Representatives. I do that, Senator Burr,
because I served a lot longer in the House than I have been in
the Senate. So it was nice that we have a hearing of North
Carolina judges to bring Congressman Watt and Congressman
Butterfield to our Committee room. We welcome both of them to
the Committee room.
Judge Wynn, I want you to know one thing. I was on a plane
ride with Congressman Butterfield, for a long plane ride, and
for hours he was telling me about you. So you have a good
friend in Congressman Butterfield and he assured me that you
are going to make a great addition to the Fourth Circuit.
I take special interest in the court circuit. It is a
Fourth Circuit in which, of course, Maryland is a party to. We
currently have four vacancies. I guess it is about 20 to 25
percent of the workload. So it is critically important that we
move forward on the confirmation process in the Fourth Circuit.
I am pleased that we have been able to confirm recently two
additions to the Fourth Circuit, last year and this year, and
that we have another person who has been approved by our
Committee. But we have already confirmed Judge Agee from
Virginia and Judge Davis from Maryland, and we have had a
hearing on Justice Keenan from Virginia, who has received the
voice vote from our Committee and we are hoping that she can be
confirmed prior to the end of this session of Congress.
It is important that we move forward with these
nominations. As I evaluate judicial candidates, I use several
criteria. First, I believe judicial nominees must have an
appreciation for the Constitution and the protections it
provides to every American. Second, I believe each nominee must
embrace a judicial philosophy that reflects mainstream American
values, not narrow ideological interests.
Third, I believe a judicial nominee must respect the role
and responsibilities of each branch of government. Finally, I
look to a strong commitment and passion for the continued
progress for civil rights protection.
We are fortunate to have two nominees before us who have
devoted a good deal of their life to public service and we
thank them for their public service and we thank their
families, because we know this is a joint sacrifice.
Judge James Wynn comes to this Committee with a broad range
of both civilian and military judicial experience. Judge Wynn
currently sits on the North Carolina Court of Appeals, the
state's intermediate appellate court.
Prior to taking the bench in 1990, he served as an
appellate public defender and worked in private practice. Judge
Wynn is also a certified military trial judge and a captain in
the U.S. Navy Reserves.
He served on active duty in the U.S. Navy JAG Corps from
1979 to 1983. As a military lawyer, he tried over 100 court-
martial cases before sitting as a military judge.
He has been awarded the Meritorious Service Medal three
times, the Navy Commendation Medal twice, the Navy Reserve
Medal, the National Defense Service Medal, and the Global War
on Terrorism Medal.
Congratulations. That is quite an impressive array.
He is chair of the American Bar Association Judicial
Division, a former chair of the association's Appellate Judges
Conference, and a member of the standing Committee on
Minorities in the Judiciary.
He received his BA from the University of North Carolina-
Chapel Hill, his JD from Marquette University Law School, and a
master's of law from the University of Virginia School of Law.
Quite impressive.
He has received a unanimous well qualified recommendation
from the American Bar Association.
Judge Diaz also comes to this Committee with a broad range
of both judicial and legal experience in both civilian and
military court systems.
Judge Diaz currently serves as a special superior court
judge for the complex business cases, one of only three in the
State of North Carolina.
Judge Diaz began his legal career in the United States
Marine Corps, Legal Services Support Section, where he served
as a prosecutor, defense counsel, and, ultimately, chief review
officer. He then moved to the Navy's Office of Judge Advocate
General, where he served for 4 years as appellate government
counsel, handling criminal appeals.
In 1995, Judge Diaz left active duty in the Marine Corps
and worked as an associate at Hutton & Williams, with a primary
focus on commercial litigation. He remained in the Marine Corps
Reserves while in private practice, serving as Reserve
appellate defense counsel in the Navy JAG Corps, a Reserve
military judge in the U.S. Navy and Marine Corps judiciary, and
a Reserve appellate military judge in the U.S. Navy-Marine
Corps Court of Criminal Appeals.
He resigned as a military judge when he retired from the
Marine Corps in 2006. Once again, a very impressive record.
Judge Diaz was the first Latino appointed to the North
Carolina Superior Court, where he was named as a resident
superior court judge in 2001. In 2002, he was appointed as a
special superior court judge and he was designated a special
court judge for the complex business cases in 2005.
He earned his BS from the University of Pennsylvania's
Wharton School. He received his JD from NYU School of Law, and
he earned his master's degree in business administration from
Boston University.
Judge Diaz is nominated for the Fourth Circuit Court of
Appeals and received a rating of unanimously well qualified by
the American Bar Association.
So we thank both of you for your willingness to continue to
serve in the public. I want to compliment particularly your two
Senators, one a Democrat, one a Republican, working together to
bring us the very best for our consideration. It is a model for
other states to follow and I compliment both Senator Burr and
Senator Hagan.
We will start with the introductions by your two Senators.
Senator Burr.
Senator Burr, just for one second. I see that Senator
Sessions has arrived. If I could yield first to Senator
Sessions and then we will----
Senator Burr. Gladly.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you. Sorry to be running late. We
just had an Armed Services hearing I had to be a part of.
Mr. Chairman, it is good to be with you. We will have two
nominees today for hearing, which is unusual and not something
we do often, but it is something we were requested to do. And
the nominees sort of have come forward together for the same
circuit and the desire, I understand, is to keep them together.
So I think under those circumstances, I have agreed to go
forward with both nominees today and I look forward to a good
hearing.
Senator Cardin. Senator Burr.
PRESENTATION OF JAMES A. WYNN, JR., NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT AND ALBERT DIAZ, NOMINEE TO BE
U.S. CIRCUIT JUDGE FOR THE FOURTH CIRCUIT BY HON. RICHARD BURR,
A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Burr. Thank you, Mr. Chairman. I hope to solve 50
percent of the Fourth Circuit vacancies with a North Carolina
solution.
I thank you and Senator Sessions. I want to welcome not
just our nominees, but I want to welcome their family and their
friends who are here to celebrate in this day.
It is a great pleasure for me to introduce not just one,
but two nominees for the Fourth Circuit court.
Judge Wynn and Judge Diaz may be unique in the legal
community in which they both serve not only because of their
impressive credentials, but, also, their outstanding character
and commitment to public service.
Both of these men have served their country in the military
and I am particularly grateful to them for that service.
Judge Wynn grew up on a farm in Robertsonville, North
Carolina. He has six brothers and a sister, some of whom are
here today. He says he learned the values of hard work helping
out on the family farm, where his family still gathers for
regular reunions.
He joined the U.S. Navy Judge Advocate General Corps in
1979, upon graduation. He always had a desire to serve in the
military and thought that that might be his last opportunity to
do so.
Upon completing his commitment to active duty, Judge Wynn's
mentors in the JAG Corps convinced him to become a Reservist
and he continued that duty into much of his time as a judge. In
August 2009, he retired as a Navy captain with 30 years
service.
Throughout his career, he has shown a continued commitment
to learning. Although on the bench and more than 15 years into
his legal career, Judge Wynn decided to continue his legal
education by pursuing a master's degree in judicial process. He
even spent 8 years studying the human genome project.
Judge Wynn is a deacon of the Providence Missionary Baptist
Church in Robertsonville, North Carolina and every Sunday, he
drives 45 miles to pick up a fellow deacon, his father, James
Andrew Wynn, Sr., who is here with us today and 87 years old.
Welcome, Mr. Wynn.
Judge Wynn currently serves on the North Carolina Court of
Appeals. His wife, Jacqueline, and two of their three children,
Javius and Jaeander, are here today, as are many of his fellow
JAG officers. His middle son, Conlan, could not be here today
because of college exams. I am sure he would rather be here
with us.
Judge Diaz also started his legal career in the JAG Corps,
but as a United States Marine. He enlisted in the Marine Corps
at age 17 and broke his mother's heart. She had hoped that he
would go to college and be the first in his family to get a
college degree.
Judge Diaz felt strongly that the Marine Corps would be
best for him. He had a friend who had joined before him and he
could see that it had changed his way of life.
Judge Diaz said, and I quote, ``I just looked at him and
thought, `I need some of that,' '' unquote. Well, a young 17-
year-old convinced his mother to sign him to join, however, by
promising her that the Marine Corps would not keep him from
going to college.
Judge Diaz followed through on his commitment to his
mother. Two years into his service in the Corps, he joined the
ROTC program to go to college and then on to law school to
become a Marine Corps JAG. He continued to serve until October
of 2006, when he retired as a lieutenant colonel.
He, too, shows a commitment to his community, working as a
truancy court judge for elementary school kids, meeting
regularly with their parents to determine what kind of issues
may be interfering in their children's school attendance.
He recruits mentors from the legal profession for ``Lunch
with a Lawyer,'' a program for middle schoolers who are
interested in legal careers. The kids sit down and have lunch
with a lawyer once a month to learn about their careers. He
says eighth graders generally do not know what they want to do
with their lives, but that the program is a good way to mentor
kids who need role models to help them think more about the
future.
We will just have to give Judge Diaz the benefit of the
doubt that it is a positive thing to draw more kids into the
practice of law.
Judge Diaz currently serves as a superior court judge in
the North Carolina business court. He has been praised by those
who have practiced before his court as fair and impartial as a
judge, but, also, they refer to his dealing with some of the
most difficult cases. He says this is just a testament to the
work ethic he learned in the Marine Corps and that the greatest
experience anyone can have is to serve their country in some
way.
I quote Judge Diaz, ``Democracy isn't free. We have to
remember to work for it.''
He says he works hard, but remembers the limits of the
bench; that his responsibility is to faithfulness of the law.
Beyond that, he said he just treats people with dignity and
respect.
He is joined today by his wife, Hilda, and his daughter,
Christina. His youngest daughter, Gabriella, is also taking
exams today.
We have so many similarities between these two nominees.
Mr. Chairman, I am proud to present to the Committee two
distinguished nominees for the Fourth Circuit court and I
suggest that this Committee look for an expedited review and
referral to the full Senate so that that deficiency on the
Fourth Circuit can be filled.
I thank the Chair and I thank the Ranking Member.
[The prepared statement of Senator Burr appears as a
submission for the record.]
Senator Cardin. And we thank you very much for your
support.
Senator Hagan.
PRESENTATION OF JAMES A. WYNN, JR., NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT AND ALBERT DIAZ, NOMINEE TO BE
U.S. CIRCUIT JUDGE FOR THE FOURTH CIRCUIT BY HON. KAY HAGAN, A
U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Hagan. Thank you, Mr. Chairman. I, too, want to
welcome Judges James Wynn and Albert Diaz and thank both of
them for being here today and for the service that they have
both given our state and nation over the past several years.
I also want to thank President Obama for selecting such
exemplary nominees. And I sincerely want to extend my gratitude
to my esteemed colleague, Senator Richard Burr, for working so
hard with me to ensure that North Carolina has adequate and
highly capable representation on the Fourth Circuit.
These two judges are exactly what we need on the Fourth
Circuit Court of Appeals, for several reasons, and you have
just heard Senator Burr's excellent qualities and biographies
of these two esteemed gentlemen, and I will not go any further
into their biographies.
I also see Congressman Mel Watt here, who so ably
recognizes the citizens in North Carolina.
But when I first came to the U.S. Senate earlier this year,
I had high hopes for increasing the number----
Senator Cardin. Congressman Butterfield is also there.
Senator Hagan. I did not see Congressman Butterfield. And
Congressman Butterfield--I am so sorry--also, who so ably
represents his district in North Carolina.
But when I first came to the Senate earlier this year, I
had high hopes for increasing the number of North Carolinians
on this court. North Carolina is the fastest-growing and
largest state served by the Fourth Circuit; yet, only two of
the 15 seats were filled by the abundant talent from our state.
And over the past century, North Carolina has had fewer total
judges on this court than any other state.
Furthermore, there have been inexcusable vacancies on this
court throughout history and given that the United States
Supreme Court only reviews 1 percent of the cases it receives,
the Fourth Circuit is the last stop for almost all Federal
cases in the region, and we must bring this court back to its
full strength.
Since 1990, when this circuit was granted 15 seats, it has
never had 15 active judges. But specifically, there has been a
history of partisan bickering over the vacancies on the Fourth
Circuit.
But with these nominees and this process, we are changing
the course of history and I am very excited about confirming
these judges.
However, I know that members of this Committee will be less
interested in these historical issues than they will be in the
particular qualifications and experiences of these two
accomplished judges.
I am proud to note that both of them have received
unanimous ratings of well qualified from the American Bar
Association. They both bring a wealth of experience in the
courtroom, advising courts and judges and serving in the armed
services.
These judges show respect for the law and apply it as it is
written. In a recent dissenting opinion, Judge Wynn wrote,
``Judicial prudence requires us to leave these policy questions
to our Legislative and executive branches of government. Our
role is to apply the law, not to make it.''
Editorials in newspapers throughout North Carolina have
praised these nominations. The Charlotte Observer said,
``Judges Wynn and Diaz are widely regarded as intelligent,
ethical judges, who have won respect for their judicial and
military careers. They are the kind of judges the Federal bench
needs. Their quality is so unquestioned that only partisanship
could stall their nominations.''
The Raleigh News and Observer said, ``There appears to be
no good reason they shouldn't be moved through the confirmation
process with dispatch.''
And I am honored to have the opportunity to play some role
in this process and that we are now moving toward putting Judge
Diaz and Judge Wynn on the Fourth Circuit bench.
I want to express my sincere gratitude to this Committee
for holding this hearing today.
Thank you, Mr. Chairman and Mr. Ranking Member. Thank you
very much.
[The prepared statement of Senator Hagan appears as a
submission for the record.]
Senator Cardin. I want to thank both Senator Hagan and
Senator Burr not only for their testimony here today and their
introductions, but the manner in which these nominees have been
brought forward.
I particularly want to thank Senator Sessions for
accommodating the fact that we could take two appellate court
judges in one hearing, because that is unusual. We normally
want to have a separate hearing on each of our appellate
judges.
So I want to thank Senator Sessions. I think it reflects
the fact that the two Senators worked together in a nonpartisan
manner to bring us forward the nominees.
So congratulations to both of you.
We will now proceed to the hearing of the two judges, if
they would come forward please and remaining standing, if you
would, please.
We ask that you take an oath, which is traditional in the
Judiciary Committee.
[Nominees sworn.]
Senator Cardin. Please have a seat. Judge Wynn, we will
start with you. Glad to hear from you. And I think your family
has already been introduced, but if you care to do it again,
certainly, they deserve it.
STATEMENT OF JAMES A. WYNN, JR., NOMINEE TO BE UNITED STATES
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
Judge Wynn. [Off microphone] and allowing us this
opportunity to appear before this Committee. I am particularly
thankful, of course, to my God for this opportunity and I thank
my President Obama for this opportunity. And I thank the judges
of my court, the North Carolina Court of Appeals and the
Supreme Court of North Carolina, my colleagues who have helped
me through the years to be a better judge and a good judge, and
my former colleagues.
I am particularly pleased, of course, to have my father
here, who has already been mentioned. I am pleased to have my
wife, Jacqueline, and two of my three sons, Javius and
Jaeander. Of course, Conlan could not be here for the reason
stated, that he is taking an exam.
I am happy to have my sister, Angela, here and her husband,
Arthur. My sister, Anita, is also here and, unfortunately, my
sisters, Joan and Romaine (ph) and her husband, Benny, could
not be here, nor could my brothers, Reggie and Arnie, be here.
In addition, I believe my niece, April, is in the audience
here and I hope I am not forgetting someone behind me here.
But I do want to make special note of my Navy friends who
are here, because the Judge Advocate General of the Navy said
he would attempt to show up. He is having a meeting with the
Undersecretary at this time, but he would be coming.
I know that Rear Admiral Steve Talson is here, who is the
Deputy JAG in charge of Reserve Affairs; and, a very special
friend of mine, who is a line officer in the Navy, Captain Glen
Flanagan, who commanded two major ships, a nuclear cruiser and
a frigate during his time. We have been friends for over 30
years and I am particularly happy he was able to make it.
I believe Chief Judge Andy Effron of the Court of Appeals-
Armed Forces will also be here. And I saw a number of surprise
guests here, some of my former classmates. I know that Justice
Timmons-Goodson, who is on our Supreme Court, has joined us and
a number of my other friends are here.
I see in the back of the court--earlier--saw them in the
back of the court earlier, folks from the Troopers Association,
the North Carolina law enforcement group, have come, also, and
a number of other friends.
And I hope, if I missed anybody behind me, please charge
that not to my heart, just to the fact that perhaps the moment
is consuming me.
[The biographical information follows.]
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Senator Cardin. Thank you.
Judge Diaz.
STATEMENT OF ALBERT DIAZ, NOMINEE TO BE UNITED STATES CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT
Judge Diaz. Thank you, Mr. Chair and Mr. Ranking Member,
for holding this hearing this afternoon. I know how busy you
all are and we appreciate the opportunity to appear before you.
I don't have an opening statement. I simply want to thank
the President for his confidence in me. If confirmed, I hope to
do all I can to justify his confidence, as well as the
confidence of the American people.
I want to thank Senator Burr and Senator Hagan for their
kind introductions here this afternoon.
You did identify, Senator Cardin, some of my family
members. But if I might, I want to take a moment to identify
some others, as well as friends that are here.
My wife, Hilda, is here. She has put up with me for 25
years and it is clear that I would not be here without her. I
love her very much and I appreciate her support.
My daughter, Christina, is here, who graduated from Chapel
Hill last year. I am very proud of her and I am happy to have
her support, as well. As was mentioned, my daughter, Gabriella,
is very upset because she is not here, but she is doing God's
work by getting through her freshman year and hopefully
everything will be just fine with her.
I have my brother, Edwin Diaz, here, who is an assistant
deputy warden with the New York City Department of Corrections
in Riker's Island. Every time I think that I have a difficult
job, I just look to him and realize how fortunate I am and that
he is doing that kind of work. His wife, Stacey Haliburton, is
here, as well. She is also a corrections officer in New York
City.
My two nephews, Joel and Javier Diaz, are here, as well.
Stacey's daughter, Amanda Radcliffe, is here. I am pleased to
have them here. My college roommate Clark Brett, a former
Marine who served on active duty with me for a time, is here. I
am very pleased that he is here in support of me.
I have several other Marine colleagues who are here, two
retired colonels, Roger Harris and Michael Rayhouser are here
in support of me and I am so pleased that they are here, as
well. And two friends from Charlotte, North Carolina, Georgia
and Robert Lewis are here, as well, in support of me this
afternoon.
So thank you, Mr. Chairman, for the opportunity to
introduce them, and Mr. Ranking Member.
[The biographical information follows.]
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Senator Cardin. Thank you. Let me just inform the people
that are here that a vote has started on the floor of the U.S.
Senate. I am going to yield to Senator Sessions to allow him to
go first.
We anticipate that we will be able to keep the hearing
going during the vote. There is only one vote that is
scheduled. We may have to take a short recess, but we hope to
keep the hearing open.
Senator Sessions.
Senator Sessions. [Off microphone.] While both of the
nominees have impressive backgrounds, including extensive
service to their country, the Senate does have a constitutional
duty to review these nominees carefully. I would just say that,
of course, your backgrounds have been examined. FBI has done
their background work. The ABA has done theirs. The President
and Department of Justice have done theirs, and members of the
staffs of the Committee have also looked into that. You would
not be here if we were not making some progress through those
investigations. This is a lifetime appointment and it requires
that kind of review.
I am pleased to see that both nominees have the support of
your home state Senators. That means a lot to all of us. You
have got two Senators who have spent time at this and they have
strongly supported you and that is valuable to us.
Both Judge Diaz and Judge Wynn were nominated by the
President on November 4, 2009. So this is a quick turnaround
for any circuit court nominee. It is especially quick for a
nominee to the Fourth Circuit.
Steve Matthews, who President Bush nominated for the same
seat on the Fourth Circuit which Judge Diaz has now been
nominated waited 485 days for a hearing that never occurred.
Another of President Bush's nominees, Chief Judge Robert
Conrad, who was chosen by Attorney General Janet Reno to
conduct a sensitive investigation, out of all the United States
attorneys in the country, who was rated highly by the bar
association, was nominated for the seat for which Judge Wynn is
now nominated, he waited over 500 days for a hearing that never
came.
So there are other examples, I think, of unreasonable delay
and obstruction, but I am not going go talk about that today.
How about that? I just want to say that I am pleased that we
could move you forward at what is really a fairly rapid pace, I
have to say.
Both of your records have been examined and I will not go
into a lot of detail. I did note a concern, as a former
prosecutor, Judge Wynn, on a number of your cases involving
search and seizure issues that are troubling to me.
In McClendon, you argued in dissent that it violated the
Fourth Amendment to detain an individual who was stopped for
speeding, appeared nervous, gave inconsistent and vague answers
regarding his destination and could not produce a registration
card for the vehicle. An eventual search yielded 50 pounds of
marijuana. The Supreme Court of North Carolina affirmed the
majority opinion in that case and not your view.
In State v. Brooks, you held that approaching a parked car
and talking with the driver constituted an investigatory stop,
requiring reasonable suspicion for the purposes of the Fourth
Amendment.
In Brooks, a state bureau investigation agent was executing
a search warrant at a business, where a car was parked. When he
walked over to the car and engaged the driver in conversation,
he noticed an empty gun holster next to the driver. When he
asked where the gun was located, the defendant told the officer
he was sitting on it. After seizing the gun, the officer
obtained consent to search the car and located drugs.
The North Carolina Supreme Court unanimously reversed your
decision that the officer's actions amounted to an
investigatory stop that required a higher level of proof, which
was reasonable suspicion.
So I would just say that these are fact-intensive cases.
People can disagree or even make an error on occasion. Judges
are not perfect. But when you have a lifetime appointment,
unaccountable to the public, we do want your commitment that
you will follow the law faithfully, regardless of whether you
might agree with it or have a different view, and that would be
some of the matters that we would be questioning today.
What do you think, Mr. Chairman, about the time?
Senator Cardin. There is still some.
Senator Sessions. Judge Wynn, I mentioned those two cases.
Would you tell me how you felt about them and your view of it,
particularly after the court of appeals ruling?
Judge Wynn. Thank you, Senator. And I appreciate the
opportunity to respond to the concerns that you have on those
cases. I would note that during the tenure of my 19 years on
the court, I have written perhaps close to 1,500 opinions and
concurred in another 3,000 of them, and the vast majority of
them the Supreme Court has affirmed, particularly in the
criminal cases.
One of the unique things about the State of North Carolina,
I don't think another state has this system, is that in order
to get an appeal, as a matter of right, to the Supreme Court, a
dissenting opinion from the court of appeals would put it
there.
So quite often, as you indicated, where you have factual
situations, where the issues are close, the Supreme Court has
made it clear that a three-judge panel cannot certify that
appeal to the Supreme Court. The only way it can get there on
an appeal of right would be by a dissenting judge.
Understanding this process and the limited role that an
intermediate court plays in the State of North Carolina and the
opportunity for this to be reviewed by the Supreme Court, there
are instances in which there is a fuzziness in the law or
unclearness in the law. It perhaps is helpful to have a word
from the Supreme Court.
I will assure you that once the Supreme Court made its
pronouncement in these cases, I followed that law to the letter
thereafter and in every instance in which you have enumerated,
it has been helpful for the court to understand how to proceed
from that point on and there are no court cases after any of
those cases that would appear where I have deviated to any
degree from what the Supreme Court has mandated.
Senator Sessions. Well, thank you. That is a direct answer
and I appreciate it. What about, both of you, we have Federal
sentencing guidelines that are rather significant and reduce
the freedom that judges in state court may have had with regard
to sentencing.
Are you familiar with that, Judge Wynn, and are you
committed to--how do you view, since the Supreme Court has
reduced the binding nature of those guidelines, how do you feel
about the general principal that sentences should be within the
guideline range under normal circumstances?
Judge Wynn. Senator, again, thank you. And I recognize that
you have a great deal of knowledge in terms of the legal
system.
One of the things that you know and, of course, I know is
that over the years, there was complete discretion given to
judges at times to sentence defendants to virtually any
sentence, from probation to many years.
I have, for many years, thought it was quite wise, whenever
the legislative process was in place, to limit that discretion
to the extent that there would be some consistency in the types
of sentences that would be awarded.
To the extent that the Supreme Court is interactive, of
course, if I am selected, I will fully support the holdings of
the Supreme Court and the rulings of Congress that are held by
the Supreme Court to be constitutional.
Senator Sessions. Judge Diaz.
Judge Diaz. Thank you, Mr. Ranking Member. I appreciate the
question. Although I am not directly familiar with Federal
sentencing guidelines, because we operate under a state court
system, we do have a fairly analogous system in North Carolina
called structured sentencing, where a judge's discretion is
cabined by the severity of the offense and the prior record of
the offender, and that provides a grid box where the judge's
discretion is limited by an aggravated, a mitigated and a
presumptive range of sentences, and that system has worked very
well for North Carolina.
I agree that, as a general principle, it should not be to
the detriment of a defendant who it is that he or she appears
in front of in determining what type of sentence should be
awarded.
So I do agree that there is some benefit to relative
uniformity of sentences and we have had some good experiences
in North Carolina with that process, and I would commit to you
that I would follow the law with respect to Federal sentencing
guidelines, if I were confirmed.
Senator Sessions. Thank you. Both of you have dealt with
lawyers and clients. Would you describe briefly your view about
how an advocate ought to be treated in your courtroom and how
you will treat them, if you are confirmed?
Judge Wynn.
Judge Wynn. Senator, again, thank you. Perhaps just as a
matter of background, I grew up in a farm community in eastern
North Carolina and I learned to respect, from my father and
those around me, the individuals, no matter what path of life
they came from.
It has been my intent and my practice at every stage of
being in the judiciary to appreciate and to respect the lawyers
and the litigants that come to the court no matter what their
backgrounds, to allow and afford them a full hearing, to
provide for access to justice in every instance.
So I have attempted to and believe strongly in respecting
individuals that come to the court and yielding and being as
humbled as I can and recognizing the limited nature of my role
as a judge is not to be the person in a superior position, but
the person who is there to adjudicate with a fair and impartial
view.
Senator Sessions. Judge Diaz.
Judge Diaz. Thank you, Senator, for that question. I agree
with my colleague. I believe that respect is the coin of the
realm when it comes to our justice system. As important as it
is to administer justice, it's equally important that citizens
believe that justice is being fairly administered and part of
that is having dignity and respect both for the process and the
litigants.
Lawyers have a very difficult job, I know that, having been
a civilian practitioner, as well as a military practitioner. It
is a difficult task to balance client interests, as well as the
integrity of the process. And judges ought not to sit as
princesses or princes domineering the process.
It ought to be a respectful, two-way process, with dignity
for all participants. The judge has to be in control,
obviously, but he can do that while ensuring dignity and
respect for all concerned.
Senator Sessions. Thank you.
Senator Cardin. Thank you, Senator Sessions. We are going
to need to take a brief recess because of the vote that is on
the floor. I have been informed that we will not be able to
continue the hearing at this time. So it will be a brief recess
and we will be returning.
[Whereupon, at 3:34, the Committee was recessed, to
reconvene at 3:50.]
Senator Cardin. The Judiciary Committee will come back into
order, please. Again, we apologize for the recess. It was
unavoidable due to a vote on the floor.
We are joined by Senator Franken. We welcome him to the
Committee.
Let me ask, if I might start off with some questions and
just point out what Senator Sessions pointed out, which I think
is critically important. The confirmation hearing is part of
the process. Prior to your selection by the President, there
was a long questionnaire that you had to fill out. I am sure it
took you a long time. You probably had to recall things in your
background that you had long thought would never be relevant
again in your life.
So we have a lot of material. You have written a lot of
opinions. You have given many speeches. All that has been
reviewed by our staffs. We have summaries of that here.
So the confirmation hearing is one part of the confirmation
process. As Senator Sessions pointed out, this is the court of
appeals, where most of the court decisions are going to be
reached in the Judicial Branch of government, because the
Supreme Court takes very few cases. And this is a lifetime
appointment.
So we treat the confirmation hearings very seriously and
the confirmation process very seriously. I say that knowing
full well that your backgrounds are incredible and your records
are very strong.
But let me ask a question that was asked to you before, but
I want you to elaborate a little bit more, and that is on your
judicial philosophy, how you will go about reaching decisions
and how your background will impact the way in which you go
about evaluating the decisions of the cases that come before
you.
Since, Judge Wynn, we have been working with you first
usually on the questioning, because you were first to testify,
I am going to call on Judge Diaz first.
Mr. Diaz. Thank you, Senator.
Senator Cardin. You have to turn your mic on, please.
Mr. Diaz. Thank you, Senator, for the question. I have
tried in each and every case that has come before me, in terms
of deciding cases, particularly as a trial judge, where the
cases come frequently and often in a very busy docket, to rely
on the lawyers to give me as much information as possible
regarding the law and, obviously, the evidence that comes
before the court.
I think it is critically important that a judge listen
carefully to all points of view in a courtroom and recognize
that his or her decisions have consequences; that we are not
dealing simply with an academic exercise, but we are affecting,
people's lives. And I try to do that in each and every case.
I also recognize the limits of the judicial decision-making
process. We do not sit as a super legislature. We are not here
to change policy, in a broad sense. We are here to decide cases
and resolve disputes. And so I take that with me to the bench
each and every day and hope to decide cases narrowly, with much
restraint as possible, resolve the disputes that come before
the court, but give all parties a full and fair opportunity to
be heard, recognizing that I do not know everything there is to
know about the law and certainly do not know anything about the
facts before the parties come before me.
So it is an open process and I try to be as considerate as
possible. But in the end, I make a decision and then live with
it and decide later on or at least the appellate authorities
can decide later on whether or not I have made the correct
decision. I hope to do so in every case.
Senator Cardin. Judge Wynn.
Judge Wynn. Thank you, Senator. And I agree with Judge Diaz
and his comments that have been made. The role of a judge is to
follow the law, not make the law. And in my decisionmaking
process, I seek to apply the applicable statutes, the
constitutional law, relevant precedent based on precedents, and
reach a decision in the cases.
Senator Cardin. The Fourth Circuit is one of the most
diversified circuits in our country. Just looking at the
numbers, it consists, of course, as you know, of Maryland,
Virginia, West Virginia, North Carolina, South Carolina.
Twenty-two percent of the residents are African-American. In
North Carolina, it is even more diverse; 32 percent are
African-Americans.
So I want to talk a little bit about diversity and how
important it is to have diversity on our bench. And a related
issue, the oath that you take as a Federal judge requires you
to render your judgment without respect to the wealth or
poverty of the person, to give equal justice to all, which, I
would submit, is a goal that has not yet been reached in our
system.
So my question is, how important is diversity in our bench
and what does your background, your individual backgrounds,
what role does that play in dispensing of your decisionmaking
or your responsibilities on the bench?
Judge Wynn. Thank you, Senator. I think that the role of a
judge, of course, first and foremost, is to follow the law, not
make the law. In every instance, the judge should treat every
litigant with fairness and with impartiality.
It is my belief that--and I call upon a recent case by the
United States Supreme Court, in which Justice Scalia brought
forth the indication of the judicial speech case. He indicated
quite pointedly that judges come to the court quite often with
preconceived notions on relevant issues of law and he said, and
I quote, ``You would hardly expect anything differently. You
wouldn't want a judge to be any different.''
I take that to mean that the opportunity to have a wide
range of input on relevant legal issues is important, but in
every instance, the ultimate role of a judge, regardless of the
background of the judge, regardless of the experience, is to
follow the law, not make the law, to treat litigants fairly,
and provide open access to our courts.
Senator Cardin. Judge Diaz, does empathy have any role to
play here? President Obama said he was looking for empathy in
the nominees that he would submit to the courts.
Evidently, you all passed the test. Does empathy have any
role here?
Judge Diaz. Thank you for the question, Senator Cardin.
First of all, I certainly do not presume to speak for President
Obama and what he meant by that comment. I am honored that he
felt that I have satisfied his requirements for this nomination
and I am pleased to be a part of this process.
I do believe that empathy has a role to play in our
judicial process, but not as the ultimate--as part of the
ultimate decisionmaking process. Where I think empathy is
important is, as I indicated earlier, in recognizing that our
decisions have consequences and in recognizing that we, as
judges, do not know everything there is to know, whether about
the law or about the facts.
So it is critically important to listen carefully to
litigants and lawyers, to engender respect and dignity for the
process, because as important as it is to dispense justice, it
is equally important that our citizens have the notion that
there is the appearance of justice, and that is where empathy
comes in; that folks believe that they have gotten a fair
shake, that the judge has listened carefully to what it is that
they have to say, considered all viewpoints.
But in the end, as my colleague, Judge Wynn, indicated, we,
as judges, have to be fair and impartial arbiters. We do take
that oath, if we are honored to do so, to do justice to rich
and poor alike, and that is what I will do if I am honored by
your vote for confirmation.
Senator Cardin. I thank both of you for those answers. One
last point and then I will turn it over to Senator Franken. And
that is that is, the importance of pro bono legal services.
I have read your resumes and your backgrounds and your
answers to those questions that were compounded by the
Committee. As a judge, you cannot handle pro bono cases. But as
a leader in the Judicial Branch, you have a responsibility for
leadership in access to justice, regardless of wealth.
So how do you see the role you can play as an appellate
court judge in promoting programs to provide equal access to
justice? I am going to preface your answer by what was done by
the head of the Maryland courts, the chief judge, when he
required lawyers to report on their pro bono activities as part
of their professional responsibility. He helped expand access
in Maryland.
How do you see your role as an appellate court judge in
helping us achieve the goal of equal access to our courts?
Judge Diaz, we will start with you again.
Judge Diaz. Thank you for the question, Senator Cardin. And
I appreciate the importance of what it is that you are getting
at.
I do believe, and I tried, in my private practice, in
particular, to honor the commitment to pro bono work. We have a
privilege as lawyers to practice law. It is not a right and it
is something that we have an obligation to give back to
whenever we can, and I have tried to do that and did that when
I was in private practice. You have that information before
you.
As a judge, I think it is critically important that we
serve as role models in encouraging, not dictating--I do not
think that we can dictate those requirements, because I do not
know that required pro bono is necessarily effective pro bono
work, but certainly encouraging lawyers to come forward and
give of themselves and give of their time and service.
I have often chaffed against the notion that judges need to
live a monkish lifestyle. We serve as role models. We ought to
be public officials out amongst the public, understanding our
limitations. We have to be careful about what it is that we
say.
But because of our role as judges, we have an important
responsibility to ensure that lawyers are encouraged to give
back in every way that they can. And so I commit to you,
Senator, that I would do that.
Senator Cardin. Thank you.
Judge Wynn.
Judge Wynn. Thank you, Senator. And I, of course, agree
with Judge Diaz's comments. As a lawyer, I offered and provided
a number of pro bono hours. In fact, I received an award from
the North Carolina Bar Association one year for having provided
pro bono services during that year.
As a judge, it has been incumbent upon me to reach back
into the community, such as the one that I came from, out of
Martin County, North Carolina, where, unfortunately, sometimes
the economic times have made it very difficult in those times.
I have so many great friends and supporters there, and I
especially feel a need to go back quite often and reach back
into the community through the high schools and through
community activities to help to educate about the legal process
and to afford our citizens an opportunity to learn more about
the judiciary and to offer more back to our community.
Senator Cardin. Well, I thank both of you. I was very
impressed with your backgrounds and very impressed by your
appearance here today, and I wish you only the best.
I am going to turn the gavel over to Senator Franken. When
he is completed, he will adjourn the Committee.
Senator Franken. [Presiding] Thank you.
Senator Cardin. You are chairman.
Senator Franken. I guess, yes, I am chairman.
Senator Cardin. Seniority moves quick around here.
Senator Franken. Well, congratulations to both of you for
your nominations. I want to go back to diversity again, because
you are both military judges. Right?
Judge Wynn. That is correct, Senator.
Judge Diaz. Yes, Senator.
Senator Franken. Do you think that is a good idea to have
two military judges on the same appellate court? That is not
unusual, is it; or is it?
Judge Wynn. I am not sure in terms of how many individuals
on the appellate courts have been former military judges. But I
am certainly honored to be here with a fellow military judge
who happened to be a Marine. I, of course, am Navy and I am
quite honored that we are able to sit together in this
opportunity.
Judge Diaz. But only for an hour or so, Senator, no longer.
[Laughter.]
Senator Franken. But, say, if a Marine came before you,
that would not matter, you would give them equal justice, or
her.
Judge Diaz. Absolutely, Senator. Absolutely.
Senator Franken. How about if Army came in front of you?
Judge Wynn. Absolutely, sir. Absolutely.
Senator Franken. Seriously, how do you think your
experiences in the military inform your work as a judge not in
the military and especially on an appeals court?
Judge Wynn. Well, I think the level of discipline and the
level of respect that we have in the military--it is a very,
very tight community. Whenever we had individuals who would
come before the court, regardless of the crime, we ensured--we
had to understand that these individuals had volunteered to
serve in the military and that their rights were something that
needed to be protected; but at the same time, military
discipline is important.
And I think that in being able to serve as a military judge
at bases literally around the country and around the world--and
I might add that the Navy is composed both of the Marine and
the Navy. So I had cases on Marine Corps bases, as well as
Naval bases.
Senator Franken. Judge Diaz.
Judge Diaz. Senator, I agree with my colleague, Judge Wynn.
Part of what little success I have enjoyed as a civilian judge
I attribute directly to my experiences in the military.
I served as both a military trial judge and an appellate
judge. So I have had some appellate experience while serving in
the military. It has been my honor to serve my country.
I also think that, as a practical matter, having that
experience is going to be useful on the Fourth Circuit, because
we do deal or would, if we were confirmed, deal with cases
involving national security on occasion in the Fourth Circuit
that come up from the Eastern District of Virginia, and I
believe that our collective experiences as military officers
would hold us in good stead with respect to those cases.
Senator Franken. I was fascinated with Judge Wynn's answer
on experience and talking about Justice Scalia's idea that, of
course, you are going to come to the court with certain ideas
about the law and that is what you want.
So sometimes we have this argument in this Committee about
the role of diversity and it seems to me that when you talk
about experience, I think it was Oliver Wendell Holmes who said
experience is the law.
Help me, if you can, make this distinction where we have
lots of nominees come before us who have said something like
diversity is very important, experience is very important, and
then we get a little pushback from people saying, ``Ah, but you
have to be completely neutral as a judge.''
What is a good way to reconcile--how would you put
reconciling those two?
Judge Wynn. Well, it looks like the Marine is deferring to
the Navy guy here, so I will start out, Senator. Thank you,
Senator, for that question.
I think the important aspect that we have to understand is
that the judiciary depends a great deal on the public
confidence.
Alexander Hamilton I think was the one who said that--when
he was talking about separation of powers, he said the
legislature has the money, the executive power has the force,
and the judiciary has neither. And I think what you can glean
from that is that the power of the judiciary in terms of
enforcing the decisions lie in the fact that the public has
confidence and they trust the judiciary and they have
confidence in the integrity of the judicial decisions; in other
words, they respect them.
If they do not respect them, then enforcing them will be
difficult. And in order to respect and have public confidence,
quite often, it may be necessary at least that the judiciary
reflect at least an openness, at least some degree of diversity
in terms of the individuals who may be there or the
experiences.
The individuals who may come from rural communities or may
come from urban communities or individuals of wealth or
individuals of not so much wealth, to have a diversity of
experience, I think most people can agree that, generally, that
adds to the ultimate product, that is, yield, as a result of
the decisionmaking process.
But ultimately, in every instance, regardless of the
individuals who are there, the ultimate role of a judge is to
follow the law, not make the law, not make it based on their
past experiences, not make it based on things outside of that
that is before them, but to use their best efforts to reach the
results based upon the applicable law.
Senator Franken. So, Judge Diaz, that sort of assumes that
experience--people just intuitively understand that experience
is going to inform judgment. It just is.
In other words, if you trust the judiciary because there is
a diversity of experience there, if that creates that more
trust, that is because human beings understand that experience
informs judgment, and, yet, your job is to treat everyone
equally and to be neutral and judge on the law.
Is there a conflict there or is there not a conflict there?
Judge Diaz. I do not think there is, Senator. I think in
the end, as my colleague, Judge Wynn, said, one of the
principal benefits of having a diverse bench is to inspire
confidence in our larger institutions.
A few years ago, the Supreme Court decided a case involving
diversity in law school admissions processes and Justice Sandra
Day O'Connor emphasized the importance of diversity in bringing
together differing views in order to enrich the academic
experience.
And in part, she said one of the reasons why it was
important to have a diverse legal profession was the importance
of lawyers in the governance of our institutions and military
institutions and the executive branch and in the judiciary.
It is critically important that people have--our citizens
have an understanding that not only justice is being done, but
the appearance of justice is being satisfied, and I think that
is where having a diverse set of views comes into play and
encourages that conclusion.
Senator Franken. Well, I would like to thank both of you
and congratulate both of you. Like Senator Cardin, I am
incredibly impressed with your background and your experience.
We are going to keep the record open for 1 week for written
questions, and our hearing is adjourned. Thank you, gentlemen.
Judge Diaz. Thank you, Mr. Chairman.
Judge Wynn. Thank you, sir.
[Whereupon, at 4:09 p.m., the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
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