[Senate Hearing 112-72, Part 1] [From the U.S. Government Publishing Office] S. Hrg. 112-72, Pt.1 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION ---------- FEBRUARY 2, FEBRUARY 16, and MARCH 16, 2011 ---------- Serial No. J-112-4 ---------- PART 1 ---------- Printed for the use of the Committee on the Judiciary S. Hrg. 112-72, Pt.1 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION __________ FEBRUARY 2, FEBRUARY 16, and MARCH 16, 2011 __________ Serial No. J-112-4 __________ PART 1 __________ Printed for the use of the Committee on the JudiciaryU.S. GOVERNMENT PRINTING OFFICE 67-905 PDF WASHINGTON : 2011 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah CHUCK SCHUMER, New York JON KYL, Arizona DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma RICHARD BLUMENTHAL, Connecticut Bruce A. Cohen, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director C O N T E N T S ---------- FEBRUARY 2, 2011 STATEMENTS OF COMMITTEE MEMBERS Page Coons, Hon. Christopher, a U.S. Senator from the State of Delaware....................................................... 1 Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 3 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 367 PRESENTERS Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting Kathleen M. Williams, Nominee to be U.S. District Judge for the Southern District of Florida..................... 5 Rubio, Marco a U.S. Senator from the State of Florida presenting Kathleen M. Williams, Nominee to be U.S. District Judge for the Southern District of Florida................................... 6 Schumer, Hon. Charles E., a U.S. Senator from the State of New York presenting Maw D'Agostino, Nominee to be District Judge for the Northern District of New York; Timothy J. Feighery, Nominee to be Chairman of the Foreign Claims Settlement Commission, and Caitlin Joan Halligan, Nominee to be U.S. Circuit Judge for the District of Columbia Circuit............. 7 NOMINEES D'Agostino, Mae, Nominee to be U.S. District Judge for the Northern District of New York.................................. 108 Questionnaire.................................................... 109 Feighery, Timothy J., Nominee to be Chairman of the Foreign Claims Settlement Commission................................... 251 Questionnaire.................................................... 253 Halligan, Caitlin Joan, Nominee to be U.S. Circuit Judge for the District of Columbia Circuit................................... 11 Questionnaire.................................................... 25 Williams, Kathleen M., Nominee to be U.S. District Judge for the Southern District of Florida................................... 154 Questionnaire.................................................... 155 QUESTIONS AND ANSWERS Responses of Mae D'Agostino to questions submitted by Senator Grassley....................................................... 287 Responses of Timothy J. Feighery to questions submitted by Senator Grassley............................................... 290 Responses of Caitlin Joan Halligan to questions submitted by Senators Coburn, Graham, Grassley, Kyl, Lee and Sessions....... 291 Responses of Kathleen M. Williams to questions submitted by Senators Coburn, Grassley and Sessions......................... 354 SUBMISSIONS FOR THE RECORD Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New York, prepared statement....................................... 364 Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, November 15, 2010, letter...................................... 366 ---------- FEBRUARY 16, 2011 STATEMENTS OF COMMITTEE MEMBERS Page Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut.................................................... 371 Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland, prepared statement................................... 739 Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 373 prepared statement........................................... 751 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 755 Schumer, Charles E., a U.S. Senator from the State of New York, prepared statement............................................. 760 PRESENTERS Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland presenting Jimmie V. Reyna, Nominee to be U.S. Circuit Court for the Federal Circuit.................................. 376 Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Jimmie V. Reyna, Nominee to be U.S. Circuit Court for the Federal Circuit........................................ 375 Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting John A. Kronstadt, Nominee to be U.S. District Judge for the Central District of California.......... 373 Warner, Hon. Mark, a U.S. Senator from the State of Virginia presenting Arenda L. Wright-Allen, Nominee to be U.S. District Judge for the Eastern District of Virginia and Michael Francis Urbanski, Nominee to be U.S. District Judge for the Western District of Virginia........................................... 380 Webb, Hon. Jim, a U.S. Senator from the State of Virginia presenting Arenda L. Wright-Allen, Nominee to be U.S. District Judge for the Eastern District of Virginia and Michael Francis Urbanski, Nominee to be U.S. District Judge for the Western District of Virginia........................................... 378 STATEMENT OF THE NOMINEES Briccetti, Vincent L., Nominee to be U.S. District Judge for the Southern District of New York.................................. 524 Questionnaire................................................ 526 Kronstadt, John A., Nominee to be U.S. District Judge for the Central District of California................................. 454 Questionnaire................................................ 456 Reyna, Jimmie V., Nominee to be U.S. Circuit Court for the Federal Circuit................................................ 382 Questionnaire................................................ 389 Urbanski, Micheal Francis, Nominee to be U.S. Judge for the Western District of Virginia................................... 612 Questionnaire................................................ 614 Wright-Allen, Arenda L., Nominee to be U.S. District Judge for the Eastern District of Virginia............................... 574 Questionnaire................................................ 576 QUESTIONS AND ANSWERS Responses of Vincent Briccetti to questions submitted by Senators Grassley and Sessions.......................................... 706 Responses of John A. Kronstadt to questions submitted by Senator Grassley....................................................... 714 Responses of Jimmie V. Reyna to questions submitted by Senators Grassley and Sessions.......................................... 718 Responses of Michael F. Urbanski to questions submitted by Senator Grassley............................................... 728 Responses of Arenda Wright-Allen to questions submitted by Senator Grassley............................................... 700 SUBMISSIONS FOR THE RECORD AIDS United, Alliance for Justice, American Association of People with Disabilities, etc; February 15, 2011, letter.............. 733 American Bar Association, Section of International Law, James R. Silkenat, Don S. DeAmicis, A. Joshua Markus, Deborah Enix-Ross, Prof. Robert E. Lutz II, Aaron Schildhaus, Kenneth B. Reisenfeld, Michael H. Byowitz and Glenn P. Hendrix, New York, New York, November 1, 2010, letter............................. 736 Citba.org, Michael S. O'Rourke, President, New York, New York, November 30, 2010, letter...................................... 742 DiFiore, Janet, District Attorney, Westchester County, White Plains, New York, February 15, 2011, letter.................... 749 Donoghue, Elizabeth, Chairman, New York City Bar, New York, New York, February 10, 2010, letter................................ 750 Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland, prepared statement................................... 758 Robinson, Stephen C., Skadden, Arps, Slate, Meagher & Flom LLP, February 16, 2011, letter...................................... 762 Schwartz, Bart M., Counselor, New York, New York, Febrary 16, 2011, letter................................................... 764 Van Hollen, Hon. Chris, a Representatives in Congress from the State of Maryland, prepared statement.......................... 765 Warner, Hon. Mark R., a U.S. Senator from the State of Virginia, prepared statement............................................. 766 Webb, Hon. Jim, a U.S. Senator from the State of Virginia, prepared statement............................................. 768 ---------- MARCH 16, 2011 STATEMENTS OF COMMITTEE MEMBERS Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, prepared statement............................................. 1408 Leahy, Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 1411 Schumer, Hon. Charles E., a U.S. Senator from the State of New York........................................................... 771 PRESENTERS Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee presenting Bernice Bouie Donald, Nominee to be U.S. Circuit Judge for the Sixth Circuit.................................... 772 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa presenting J. Paul Oetken, Nominee to be U.S. District Judge for the Southern District of New York.......................... 772 Sablan, Hon. Gregorio, a Representative in Congress from the Northern Mariana Islands presenting Ramona Villagomez Manglona, Nominee to be Judge for the District Court for the Northern Mariana Islands................................................ 773 Schumer, Hon. Charles E., a U.S. Senator from the State of New York presenting J. Paul Oetken, Nominee to be U.S. District Judge for the Southern District of New York.................... 775 STATEMENTS OF THE NOMINEES Donald, Bernice Bouie, Nominee to be U.S. Circuit Judge for the Sixth Circuit.................................................. 777 Questionnaire................................................ 779 Engelmayer, Paul A., Nominee to be U.S. District Judge for the Southern District of New York.................................. 905 Questionnaire................................................ 906 Manglona, Ramona Villagomez, Nominee to be Judge for the District Court for the Northern Mariana Islands......................... 983 Questionnaire................................................ 985 Oetken, J. Paul, Nominee to be U.S. District Judge for the Southern District of New York.................................. 873 Questionnaire................................................ 875 QUESTIONS AND ANSWERS Responses of Bernice Bouie Donald to questions submitted by Senators Grassley, Coburn and Sessions......................... 1037 Responses of Paul A. Engelmayer to questions submitted by Senators Coburn, Grassley and Sessions......................... 1072 Responses of J. Paul Oetken to questions submitted by Senators Coburn, Grassley and Sessions.................................. 1386 Responses of Ramona Villagomez Manglona to questions submitted by Senator Grassley............................................... 1401 SUBMISSION FOR THE RECORD Bordallo, Hon. Madeleine Z., a Representative in Congress from Guam, prepared statement....................................... 1406 Donoghue, Elizabeth, Chair, New York City Bar, New York, New York, March 8, 2011, letter.................................... 1407 National Employment Lawyers Association (NELA), Patricia A. Barasch, President, Washington, DC, March 16, 2011, letter..... 1415 Pierce, Richard W., Attorney at Law, Richard W. Pierce, LLC, Saipan, MP, February 17, 2011, letter.......................... 1417 Sablan, Gregori Kilili Camacho, a Representative in Congress from Northern Mariana Islands, prepared statement................... 1419 White, Michael A., Esq., Attorney at Law, Law Offices of Michael A. White, LLC, Saipan, Mariana Islands, February 10, 2011, letter......................................................... 1421 ALPHABETICAL LIST OF NOMINEES Briccetti, Vincent L., Nominee to be U.S. District Judge for the Southern District of New York.................................. 524 D'Agostino, Mae, Nominee to be U.S. District Judge for the Northern District of New York.................................. 108 Donald, Bernice Bouie, Nominee to be U.S. Circuit Judge for the Sixth Circuit.................................................. 777 Engelmayer, Paul A., Nominee to be U.S. District Judge for the Southern District of New York.................................. 905 Feighery, Timothy J., Nominee to be Chairman of the Foreign Claims Settlement Commission................................... 251 Halligan, Caitlin Joan, Nominee to be U.S. Circuit Judge for the District of Columbia Circuit................................... 11 Kronstadt, John A., Nominee to be U.S. District Judge for the Central District of California................................. 454 Manglona, Ramona Villagomez, Nominee to be Judge for the District Court for the Northern Mariana Islands......................... 983 Oetken, J. Paul, Nominee to be U.S. District Judge for the Southern District of New York.................................. 873 Reyna, Jimmie V., Nominee to be U.S. Circuit Court for the Federal Circuit................................................ 382 Urbanski, Micheal Francis, Nominee to be U.S. Judge for the Western District of Virginia................................... 612 Williams, Kathleen M., Nominee to be U.S. District Judge for the Southern District of Florida................................... 154 Wright-Allen, Arenda L., Nominee to be U.S. District Judge for the Eastern District of Virginia............................... 574 NOMINATIONS OF CAITLIN JOAN HALLIGAN, NOMINEE TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT; KATHLEEN M. WILLIAMS, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; MAE D'AGOSTINO, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK; AND, TIMOTHY J. FEIGHERY, NOMINEE TO BE CHAIRMAN OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION ---------- WEDNESDAY, FEBRUARY 2, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:05 p.m., Room SD-226, Dirksen Senate Office Building, Hon. Christopher Coons, presiding. Present: Senators Schumer, Whitehouse, Klobuchar, Coons, Blumenthal, Grassley, Kyl, and Lee. OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR FROM THE STATE OF DELAWARE Senator Coons. Good afternoon, everyone. I am pleased to call this nominations hearing of the Senate Judiciary Committee to order. I want to specifically thank Chairman Leahy, who will be joining us momentarily, for this opportunity to chair my first Judiciary Committee hearing, which is an important one. As we are all aware, our Federal courts face a severe crisis today due to the high number of vacancies in the Federal bench. The caseloads facing them continue to grow, and, unfortunately, so do the number of judicial vacancies. Today, in what is close to an all-time high, more than 100 Federal judgeships sit empty. And these vacancies not only strain our overburdened district and circuit courts, but unfairly deny American citizens access to timely judicial process. Chief Justice Roberts himself has recently characterized these vacancies as a persistent national problem and has called upon us in the Senate to find a long-term solution. The number of vacancies, though, tells only part of the story. In the last Congress, the Senate's average consideration of a district court judge took 104 days, the average circuit nominee, 163. This delay, as I mentioned, exacts a cost on the administration of justice and exacts a steep cost on individual nominees, and this is not, in my view, a partisan issue. Our judiciary relies upon our ability to attract the brightest, most decent, and most qualified to serve, in particular, on the Federal bench, and we ask these qualified judicial candidates to accept detailed and lengthy public scrutiny, long delay, relatively meager pay relative to their professional qualifications and opportunities, in exchange for a career in public service. I think we owe them a prompt public review consideration and not needless delay. In the 112th Congress, I look forward to working together with Chairman Leahy, with Ranking Member Grassley, and with all my fellow members of the Senate Judiciary Committee to fulfill our duty to advise and consent and work through these nominees in a thorough, yet reasonably expeditious manner. With that in mind, I'd like to welcome today each of the nominees, their families and their friends to the U.S. Senate, and congratulate them on their nomination. I would also like to welcome those of my colleagues who are here today to introduce the nominees. Today, we will first welcome Ms. Caitlin Halligan, nominated to be a judge on the D.C. Circuit. Ms. Halligan currently serves as general counsel for the New York County District Attorney's Office and as an adjunct faculty member at Columbia Law School. She will be introduced by her home State Senator, Senator Charles Schumer. And we also have a statement for the record from Senator Kirsten Gillibrand. [The statement appears as a submission for the record.] Senator Coons. We would also like to welcome Mae D'Agostino, nominated to be a judge in the Northern District of New York. If confirmed, Ms. D'Agostino will be only the second female judge ever to serve the Northern District of the State of New York, and she will also be introduced by the senior Senator from New York, Senator Schumer. And we also have a statement from Senator Gillibrand in support. [The statement appears as a submission for the record.] Senator Coons. We further welcome today Mr. Timothy Feighery, who has been nominated to be the Chairman of the Foreign Claims Settlement Commission. Since 2004, Mr. Feighery has served as an attorney advisor in the Office of the Legal Advisor in the State Department. He will also be introduced by Senator Schumer, the senior Senator from the State of New York. Finally, we welcome Kathleen Williams, who has been nominated to be a judge in the Southern District of Florida. Since 1995, Ms. Williams has served the southern district as its Federal public defender. She will be introduced by her home State Senators, both Senator Bill Nelson and Senator Marco Rubio. And we are pleased to have both of you with us today to provide support. I now yield to the Ranking Member to make his comments. Senator Grassley. STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Obviously, as you have, I welcome our nominees and our colleagues who will introduce them, and, particularly, to families who are very proud of these nominees and could be here with us today. At last week's markup, I said I intended to work in a cooperative manner with the chairman. My approach will be to carefully review the qualifications and records of nominees referred to this committee. We can move forward with consensus nominees after that thorough review. I want to ensure that the men and women who are appointed to a lifetime position in our Federal judiciary are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence. Above all, I believe judicial nominees need to understand the proper role of a judge and our system of checks and balances. Judges are to decide cases and controversies, not establish public policy or make law. Therefore, I will not be favorably disposed to nominees who might bring a personal agenda or political ideology to the bench. The Foreign Claims Settlement Commission is a small, but very important entity within the Department of Justice, established in 1954. This is a quasi-judicial independent agency within that department. It adjudicates claims of U.S. nationals against foreign governments, and I'll just give you one government as an example, like Libya. The former chairman's term of office expired nearly 1 year ago. No decisions have been made since then. As the result, there is a significant backlog that needs to be taken care of, and so it is important that we get that nominee out quickly. The President' first nominated Mr. Feighery on November 15, 2010. I am pleased the President nominated an individual with familiarity of the office and with experience in claims administration. We will move expeditiously. Kathleen Williams has been nominated to a seat in the Southern District of Florida. That seat became vacant nearly 2 years ago and has been declared a judicial emergency. However, we did not see the nomination until last July. With regard to the second district judge nomination, the delay in filling the vacancy is a sad record. The vacancy for that seat was created in March 2006 when Judge Scullin took senior judge status. President Bush nominated Mary Donahue in June 2006. Her nomination languished in Committee for over 14 months and then the nomination was withdrawn. President Bush then nominated Thomas Marcelle. That nomination was blocked by the Democrats, as well, despite the vacancy being a judicial emergency. We are now asked to consider the nomination of Ms. D'Agostino just 4 months after her nomination. Any impartial observer would admit a double standard with this seat. Nevertheless, in the spirit of cooperation, I am working with the Chairman and we are moving forward. There certainly is no credible complaint about Republican delays regarding these seats. The same is true for circuit court nominations. Nominations to the D.C. circuit are and have been political. Many view this court as second in importance only to the Supreme Court. The Court of Appeals for the D.C. Circuit hears cases affecting all Americans, is frequently the last stop for cases involving Federal statutes and regulations, and, as we all know, judges who sit on this court are frequently considered for and have been elevated to the Supreme Court. So there is a lot at stake with nominations to this court. This seat became vacant with the elevation of John Roberts as Chief Justice of the U.S. Supreme Court in September 2005. Peter Keisler was first nominated for the seat in June of 2006. His nomination stalled in Committee in both the 109th and 110th Congresses. Mr. Keisler was imminently qualified to serve on that court. He had a distinguished academic and professional record. His public service included serving as acting attorney general. At the time of his hearing, Democrats objected to even holding a hearing for the nominee. One of my colleagues on this Committee summarized the threshold concerns this way. He stated, ``Here are the questions that just loom out there. One, why are we proceeding so fast here? Two, is there a genuine need to fill this seat? Three, has the workload of the D.C. circuit not gone down? Four, should taxpayers be burdened with the cost of filling that seat? Five, does it not make sense, given the passion with which arguments were made only a few years ago, to examine these issues before we proceed? '' I have not heard these concerns expressed by my colleagues on the other side with respect to nominations that are before us now. These issues have not gone away. I have great concern about the need to fill existing vacancies on the D.C. circuit. I hope that, at some point, we can spend time on carefully examining the workload of this court and the implications they may have. Not only do we need to examine the threshold issue, but we must carefully review the qualifications of nominees to this court. This Committee has multiple precedents establishing a heightened level of scrutiny given to nominees for the Court of Appeals of the D.C. Circuit. President Bush nominated Miguel Estrada, John Roberts, Tom Griffith, Brett Kavanaugh, Peter Keisler, and Janice Rogers Brown. All had a difficult and lengthy confirmation process. This included delays, filibusters, multiple hearings, and other forms of obstruction. I think the record shows President Clinton's nominees fared much better. I know that Justice Kagan was not confirmed for the D.C. circuit, but she was nominated late in President Clinton's second term, and things seemed to work out for her in the long run. Perhaps some of President Bush's failed D.C. circuit nominees will find a similar fortune in the future. We have much to look at with this nomination beyond the qualifications of the nominee. I hope that we will be given a fair opportunity to fully examine those issues as we move forward. The D.C. circuit vacancy is not a judicial emergency, so I trust there will be no need to rush the consideration of this potentially unnecessary seat. Thank you, Mr. Chairman, for your courtesies, and, again, I welcome the nominees. Senator Coons. Thank you very much, Senator Grassley. I would like to thank all of the Senators who have come to join us today to speak on behalf of their home state nominees. I know you are very busy, but your presence and personal support speaks volumes about their qualifications and the importance of filling these vacancies. We will first hear from the Senator from the State of New York to introduce Ms. Halligan, Ms. D'Agostino, and Mr. Feighery. Senator Schumer. Mr. Chairman, I know my colleagues have an important engagement. So if I might defer and we can hear from them and then go to me, that would be OK with me. Senator Coons. Senator Schumer, I would be happy to do so. Senator Schumer. Much as I would like to answer Senator Grassley's remarks, I will defer. Senator Coons. Before we proceed, perhaps we could allow the Senators representing the State of Florida to speak on behalf of Ms. Williams. First, Senator Nelson, if you would. PRESENTATION OF KATHLEEN M. WILLIAMS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Nelson. The usual gentlemanly Senator from New York, thank you for the courtesies extended to Senator Rubio and me, and I will be brief. The two of us sit here as representatives of a bipartisan effort to move on these vacancies. You have before the Committee Ms. Williams, that is the subject of the hearing today. You also have, in the middle district, Mr. Dalton, and we urge your speedy consideration. We have a number of other vacancies that are just coming to the fore in Florida. And the way we do it in Florida is a tradition that was set up long ago, as evidenced by how Senator Graham and Senator Mack worked it, with a judicial nominating commission that does all of the receiving of applications, the screening, the interviewing, and the suggesting of three names to the Senators who then interview the candidates, and then let the White House know if we have an objection or if we have any particular preference, and this has worked. It worked bipartisan with the Graham era. It worked bipartisan with Senator Martinez and me, and so, too, it is the same with Senator Rubio. So in other words, the candidates that we bring to you are candidates that are accepted in a bipartisan way, with broad support of the legal and nonlegal communities of Florida. So it is in that spirit that we come on behalf of Kathleen Williams, who presently is the Federal public defender in the southern district. She began her legal career as an associate specializing in litigation in one of our large and very prestigious law firms. She has been an assistant U.S. attorney. She worked on the operation Operation Greenback, which was a big, big money laundering case done through a task force. She has been in private practice. She has been in the public defender's office as chief assistant, until then she was made the public defender herself. And she supervises a large staff of 116 people throughout the southern district. So we have an extraordinary candidate here. She has been all over the State of Florida. She knows it well. But the Southern District of Florida is one that is absolutely key that we have the top quality judges, because so many of the cutting edge cases are coming in front of that district. I would just say, on a personal note, that Kathleen credits her father, William Williams, who raised her as a single parent after the death of her mother. She credits him with her success today, and I think that says a lot about the nominee in front of you, Mr. Chairman. Thank you so much for your courtesy. And thank you, Senator Schumer, for your courtesy. Senator Coons. Thank you Senator Nelson. Thank you both for your advocacy on behalf of the applicant, and your explanation of the bipartisan and effective judicial nomination process as it functions in Florida. Senator Rubio. PRESENTATION OF KATHLEEN M. WILLIAMS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA BY HON. MARCO RUBIO, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Rubio. Thank you, Senator. Thank you and the Committee and Senator Leahy for being so prompt in scheduling these hearings and for allowing us to testify here today. I am here, of course, to introduce, as Senator Nelson has said, Kathleen Williams, who has been nominated by the President to serve as a district court judge for the Southern District of Florida. Senator Nelson outlined many of her qualifications. Her educational background, I will focus on for a moment, because it does not fail to impress. She received her bachelor's degree from Duke University. But I think more impressive than that is her law degree from the University of Miami. Senator Coons. Which has other distinguished graduates in the room. Senator Rubio. A couple here or there, yes. But Senator Nelson also outlined her role that she has played in the private sector and working in two different law firms of great repute in South Florida and all of Florida. Then, of course, she joined the Federal public defender's office as a chief assistant public defender. She represented people accused of violating Federal criminal statutes who did not have the resources to retain private counsel. In 1995, she was elevated to the position of the Federal public defender, where she continues to serve. In carrying out her duties as a Federal public defender, she has attained the highest rating by her peers, an AV rating by the Martindale Hubbell Service. Throughout her career, she has received various awards and recognition for her hard work and commitment to justice. She was recognized by the Department of Justice and received a Superior Performance Award in 1987. In 2001, she received the Criminal Justice Award from the Dade County Bar Association; and, additionally, in 2009, Ms. Williams was awarded the Lawyers and Leadership Award by the University of Miami Center for Ethics in Public Service. I think these awards signify the respect she has earned from her peers in the south Florida legal community. Ms. Williams also has a familiarity working with the people in the United States District Court for the Southern District of Florida. She has chaired the Criminal Justice Act Panel Committee of the U.S. Southern District Court since 1995, and, moreover, she has volunteered for numerous local groups and has been very active in our community in South Florida. So I am honored to introduce her here today. She is here with her family and her former partners, and I am sure she will introduce them to the committee. Again, thank you, Mr. Chairman, for giving this nomination the full consideration it deserves. Thank you, members. Senator Coons. Thank you very much, Senator Rubio. Thank you very much, Senator Nelson. I know you both have pressing business of the Senate to attend to. Thank you for contributing those statements today in support of your home state nominee. We will now turn to the senior Senator from the State of New York, who will introduce for the panel today Ms. Halligan, Ms. D'Agostino, and Mr. Feighery. Senator Schumer. PRESENTATION OF MAE D'AGOSTINO, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK; TIMOTHY J. FEIGHERY, NOMINEE TO BE CHAIRMAN OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION; AND CAITLIN JOAN HALLIGAN, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Well, thank you, Chairman Coons. And I want to thank you, too, all of our nominees who are here today, along with their very proud families. I am honored to have three outstanding nominees to introduce today; one who was born, raised, educated and still lives in New York; one who came to New York as an adult from Ohio and has dedicated her career to public service in our state; and, one who was born and raised in New York and then, perhaps under duress, left. First, going alphabetically, I have the great honor of introducing to the Committee Mae D'Agostino. She is an outstanding lawyer from Albany, New York, whom I have had the privilege of getting to know throughout the last year before I recommended her for the bench in the Northern District of New York. Mae has the distinction of being one of the most well respected trial attorneys in the State of New York. She has served the bar with skill and good judgment during her almost 30 years of practice. She was born in Albany, New York; graduated summa cum laude from Siena College and then from Syracuse University School of Law. Right from the get-go, Mae established herself in private practice as a gifted and hardworking trial lawyer, taking cases ranging from medical malpractice to negligence to labor disputes. She also demonstrated her sincere commitment to her community by undertaking an impressive array of pro bono work, including representing individual clients in Social Security benefit cases and working hard in various capacities in the New York Bar. Mae formed her own firm, D'Agostino, Krackeler, Maguire and Cardona in 1997 and has remained at the pinnacle of the state's legal profession ever since. Along the way, she was inducted into the prestigious American College of Trial Lawyers. She has won awards that are too numerous to list in full for her service to her alma maters, the community, and for her position as a role model for other women in the profession. There are two aspects of her career that I would like to highlight very briefly for the Committee as important indicators of what kind of judge she will be. First, much of Mae's career has been spent making difficult topics, like medical diagnoses, understandable to the average person, something we need more of on the bench. Second, in 1992, Mae helped to organize an experimental program in which the Albany County court instructed parties in 420 cases to reach a settlement or prepare for trial. The program resulted in 50 negotiators settling over 150 pending cases. This is exactly the kind of dedication and creativity we need from our judges. One last note. If she is confirmed--when she is confirmed, I would like to believe--she will be the only female judge sitting in the northern district and only the second to ever sit on that court. I have always said that my three criteria in choosing people to recommend for judgeships are excellence, they should be legally excellent, not some political hack or something; moderation, I do not like judges too far right and I also do not like judges too far left, they tend to want to make law rather than interpret law; and, diversity. Obviously, once the other two criteria are met, to have a diverse bench is an important criteria. Well, Mae fits all three of these to a T. I am very pleased to have recommended her to the President and I am honored to introduce her today. And I just have to say wherever you go in the Capitol region, her name is renowned, respected, and almost revered. She is truly an outstanding figure in that community. And the whole community, when I--she was happy in her private practice when I asked her if she wanted to ascend to the bench, and she agreed, there was sort of revelry from one end of the Capitol district to the other among members of both parties. Second, I am happy to introduce today Timothy Feighery and his beautiful family, which I am sure he will get to introduce later, but I had the privilege of meeting a few minutes ago. He has been nominated to be the Chairman of the Foreign Claims Settlement Commission, a little known, but extremely important commission at the Department of Justice. The commission is currently charged with distributing money to victims of terrorism who are entitled to compensation from Libya, and many have been waiting for a long time to recover for their injuries of the death of loved ones. And I am very familiar with this because a large number of students from Syracuse University were killed in that horrible terrorist incident. Tim was born in the Bronx; earned his undergraduate and law degrees from Fordham University, one of our outstanding New York institutions. He went on to serve as an associate with the prestigious law firm, Kaye Scholer, then returned to public service; specifically, the work of compensating all different types of victims of mass disasters as fairly and quickly as resources will allow. He worked for the United Nations Compensation Commission and then worked for the 9/11 Victims Compensation Fund, an extremely important and difficult job and one that gave some relief to thousands of Americans whose loved ones were killed or themselves were injured in that horrible day of unparalleled horror. The Victims Compensation Fund has been scrutinized thoroughly by just about everybody, and has done a great job. Almost nobody complains. And when you are in such a difficult position, to have such an outstanding record speaks well of Tim and his abilities. Tim now serves the Department of State in the Office of Legal Advisor, where he supervised the department's work before the Iran-U.S. claims tribunal. His experience fits the bill for the Foreign Claims Settlement Commission. I know that there are hundreds, if not thousands of Americans, victims of terror, who are looking forward to his getting to work, and it is a great thing when someone like Tim, who has had such experience in this area and is the best our country offers, is willing to serve publicly. And we thank you and your lovely family for that. Finally, it is my great honor today to introduce President Obama's first nominee to the United States Court of Appeals for the District of Columbia, Caitlin Halligan. I would just add that the court now, if you are looking at those kind of things, Senator Grassley mentioned it, is not really in balance, only three Democratic nominees and eight Republican. And to say that we do not need more people on it, well, my colleagues on the other side of the aisle voted to fill the 10th and 11th seats repeatedly when they were empty. So to now all of a sudden say, well, we only need a few less is a little perplexing, because the workload of the court has not decreased. Anyway, we will not get into that today. I am sure there will be time. I would like to focus on the quality--quality--of this nominee. Caitlin Halligan was born in Ohio, I believe it was Xenia, Ohio. It is one of my favorite places, because there are very few that begin with an X. But I think we can call her New Yorker now for her extensive service to the state. And it is her years of extraordinary public service that I want to emphasize today. Without a doubt, Caitlin has sterling academic credentials. She graduated cum laude from Princeton University and received her law degree magma cum laude from Georgetown University Law Center, where she was Order of the Coif. I did not get it, so I do not know how to say it--Order of the Coif, and managing editor of the Georgetown Law Journal. After graduating, she clerked for Judge Patricia M. M. Wald of the D.C. circuit and then for Justice Stephen Breyer. She began her legal career in private practice, including at Howard, Smith & Levin in New York, and then joined the state attorney general's office. Her first job was protecting consumers against Internet-based abuses. She headed up the Internet bureau of the attorney general's office, where she litigated online trading fraud and a variety of consumer protections. She then became the first deputy solicitor general for the State of New York, and then solicitor general. In this capacity, she was the state's lawyer in chief in the appellate courts. She formulated legal arguments to advance the State of New York's interests in cases ranging from the interstate shipment of wine to the role of dual regulation between state and local governments. Caitlin has argued four cases in the U.S. Supreme Court, where she won two and lost two, another sign that she is very well balanced. She won the Best Brief Award. Chuck was not listening to that. I said she was well balanced, because she won two cases and lost two cases in the Supreme Court. Senator Grassley. A lot better than the ninth circuit, for sure. [Laughter.] Senator Schumer. Well, thank you, Chuck. She won the Best Brief Award from the National Association of Attorneys General for 5 consecutive years during her 8 years of service. Most recently, Caitlin was in private practice at Weil, Gotshal & Manges in New York City, where she headed up the firm's prestigious appellate practice. She is currently the general counsel to the New York County District Attorney Cyrus Vance. In this capacity, she recently authored a brief in the U.S. Supreme Court to support New York's use of traffic stops. The D.C. circuit has been called the second highest court in the land because of the number of cases it decides regarding the extent and limits of government power. I think that a remarkable thing about Caitlin is that she comes to a position on the D.C. circuit with a unique depth of knowledge about the practicalities of government. I always worry about judges who have not had practical experience and seek to impose from on high some decisions that just do not work in the real world. We are not going to find that with Ms. Halligan. As solicitor general for the State of New York, she has had a massive client--I have never heard New York State referred as massive, but maybe so--with an extensive policy agenda and many priorities completed with very limited resources. She defended the state, and, often successfully, up to the Supreme Court. A lawyer who is rigorous, but reasonable in representing her client is, I think, likely to be a rigorous and reasonable judge who similarly serves the rule of law. Caitlin fits this bill and I think her experience and intelligence should recommend her highly to this committee, whatever party or ideology you come from. I want to thank the nominees for their work and dedication. I thank the Chairman for giving me this time today to talk about three nominees who have close connections to my home State of New York. Senator Coons. Thank you very much, Senator Schumer, for those valuable and detailed introductory comments on the three nominees with some relationship with the State of New York. So thank you. And I know that you, too, have Senate business to which you may want to attend. We are going to proceed now, if we could, with the first panel, which will consist solely of---- Senator Whitehouse. Mr. Chairman, with your permission, could I just add a good word, also, on behalf of Caitlin Halligan, who comes very well recommended by the leadership that I am familiar with, the law enforcement community in New York. As the state's former solicitor general and as a real leader in the appellate practice, she is perfectly suited for this court, and has received just rave reviews from our colleagues in the New York law enforcement community, particularly the district attorney for Manhattan, District Attorney Vance. I wanted to pass on the very, very strong comments I have received in her favor as a tough prosecutor and a brilliant lawyer and a very capable individual. Senator Coons. Thank you, Senator Whitehouse. If I might, I would like to invite Ms. Halligan to step forward, if you would, at this time. Ms. Halligan, if you would, remain standing, raise your right hand, and repeat after me. [Nominee sworn.] Senator Coons. Thank you very much. Please be seated. Ms. Halligan, I would welcome you, at the outset, to acknowledge any family members or friends you may have with you today, and then proceed with your statement. STATEMENT OF CAITLIN JOAN HALLIGAN, NOMINEE TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT Ms. Halligan. Thank you, Senator. I would like to introduce my daughter, Anna Falcone; my husband, Marc Falcone; my father, Jack Halligan; my mother and father-in-law, Richard and Mimi Falcone. And I also have a number of other friends who are here to be supportive today. Thank you. Mr. Chairman, thank you and the members of the Committee for being here today. I also want to thank the President for the extraordinary privilege of nominating me to this position. And I want to thank Senator Schumer and Senator Whitehouse for their very generous comments. Other than that, I have no statement and would be happy to answer the committee's questions. Senator Coons. Thank you, Ms. Halligan. We will proceed then to questions, if we might. I am still expecting the Chairman to join us for an opening round of questions, but I will begin, if I might. Ms. Halligan, if you might start by just briefly describing your judicial philosophy, that might be helpful for all of us. Ms. Halligan. Senator, I believe that the role of a judge is a limited, but important one. I think that the job is to apply the law to the facts, to do so in the context of a specific case that is presented to a court. I believe that judges have to have a deep respect for precedent and, also, a full commitment to being fair and impartial with every case that comes before a judge. Senator Coons. That is helpful. Thank you. And you have spent the vast majority of your legal career as an advocate. If confirmed for the D.C. Circuit Court, in your view, based on that philosophy, how would your role as a judge be different from that of an advocate? Ms. Halligan. I think the role is very different, Senator, and thank you for the opportunity to address that issue. I believe that the role of an advocate is to make the very best arguments that you can that have a reasonable basis on behalf of your client, whether you agree or disagree with those positions. I think that by contrast, the role of a judge is to look at every case with an open mind, to look at what the text in front of you says and the precedent, and to make the best decision that you can in accordance with the law. Senator Coons. Thank you. In reviewing the background for this hearing today, I read, in particular, about a report that was issued by the Federal Courts Committee of the New York City Bar. It was entitled ``The Indefinite Detention of Enemy Combatants,'' and further titled, ``Balancing Due Process and National Security in the Context of the War on Terror.'' I was a little concerned about this report, in particular, to the extent that it seemed to conclude the United States lacks the authority to detain folks who are considered enemy combatants, and I know you served on that Committee at the time the report was issued. If you could tell me something about your role in writing this report, whether you affirmed it or agree with it, and then, if possible, something about your view of the impact of terrorism on our communities and the importance of appreciating and respecting that impact, as you have conducted yourself in your recent legal roles. Ms. Halligan. Thank you, Senator. I am really grateful to have the opportunity to address that report. I first became aware of the existence of that report this summer, when I went to the City Bar Association. In responding to this committee's questionnaire, I wanted to make sure that I had done full diligence, and I knew that I had been a member of the Committee that you referred to. And so I went through the bar association's files and I discovered this report. I was, frankly, taken aback by it, for a couple of reasons. First of all, the Supreme Court has clearly held that indefinite detention is authorized by the AUMF statute. And so the notion that the President lacks that authority, I think, is clearly incorrect. I also was a little bit taken aback by the tone of the report. I think that the issues of indefinite detention and any issues in the national security realm are very serious ones, and I think that approaching those issues as respectfully as possible is the most productive way to proceed. But the bottom line is that the report does not represent my work. It does not reflect my views. Senator Coons. And, Ms. Halligan, have you had any personal experiences that give you some exposure to the strains or challenges in law enforcement, in the legal process, or in our community that are a result of acts or incidents of terrorism? Ms. Halligan. In several regards, Senator. You know, at a personal level, I live and work in downtown Manhattan and I worked two blocks away from the World Trade Center on September 11. And so I have a very acute awareness of how serious these issues are and how important the task of protecting our citizens is. It is something that I think you cannot live and work in New York without thinking about on a frequent basis. And I have actually spent a fair amount of time during my time in private practice working on a pro bono basis to assist the organization that is tasked with rebuilding the 9/11 site. So I have worked very closely and, in the course of doing that, gotten an up-front understanding of just how devastating the consequences of that attack here, even 10 years down the road. I also now work in the district attorney's office and although the work of counterterrorism is primarily work that is done by the Federal Government, we also attempt to do our part to make sure that any issues that we identify are addressed as quickly and responsibly as possible. And so I think that my work on the law enforcement side has also made me very aware of how serious the challenges are that we face. Senator Coons. Thank you, Ms. Halligan. I will turn to Senator Grassley for his first round. Senator Grassley. Thank you very much. I want to ask you some questions that would try to find out whether you believe the Constitution is original intent or evolving. And since you were involved in some briefs dealing with the Eighth Amendment, do you personally believe that the meaning of the Eighth Amendment has changed over time? Ms. Halligan. Senator, I believe that the Constitution is an enduring document and I believe that the best way in which we can interpret it is to look to the text and the original intent of the framers. Senator Grassley. And, obviously, that original text, at least going back to the amendments of 1792, provide for the death penalty. Ms. Halligan. It does, Senator, and I have defended the death penalty in New York's courts under constitutional challenge. Senator Grassley. In one of your statements, you had said something about the meaning of the Constitution depends on whether there is an enduring legislative consensus, and you quoted in one brief that 18 states expressly disallowed the death penalty for juveniles and 12 states did not permit the death penalty under any circumstances. So it seems to me, under your reasoning, you might believe that if 30 states ban the death penalty entirely, then the punishment would be unconstitutional. In other words, the legislatures acting in one way or another kind of changes the Constitution. Ms. Halligan. Senator, that brief was filed on behalf of a client, the State of New York, and it doesn't represent my personal views. I believe the Supreme Court has been crystal clear that the death penalty is constitutional, and I would fully follow those precedents, if I were lucky enough to be confirmed to the D.C. circuit. Senator Grassley. OK. Then I am going to ask a question that comes from the same briefs and series of cases, but it does not deal with the issue of the death penalty or not, even though the cases deal with it. But it is kind of from the standpoint that you referred to the Atkins case, and you cited it when you filed on Roper, and you cited, ``The United States now stands alone in the world that has turned its face against juvenile death penalty.'' And the majority stated, ``Within the world community, the imposition of the death penalty for mentally retarded offenders is overwhelmingly disapproved.'' It is not whether or not people that are mentally retarded ought to have capital punishment or juveniles. It brings me to this point. Do you believe it is ever appropriate to rely on foreign law in deciding the meaning of the U.S. Constitution? Ms. Halligan. I do not, Senator. Senator Grassley. Well, that is pretty clear. So I will not have to follow-up with another question I had on that subject. On the Second Amendment, in 2003, you gave a speech expressing concern about Federal legislation to limit the liability of gun manufacturers. You said, ``Such an action would likely cutoff at the pass any attempt by states to find solutions through the legal system or their own legislatures that might reduce gun crime.'' Many who oppose the Second Amendment rights made similar arguments against after the Supreme Court decided Heller. Do you personally agree that the Second Amendment protects individual rights to keep and bear arms? Ms. Halligan. The Supreme Court has been clear about that. Yes, it does protect individual rights to bear arms, Senator. Senator Grassley. And would you say that making it a fundamental right under McDonald was something you agree with, as well? Ms. Halligan. That is clearly what the Supreme Court held and I would follow that precedent, Senator. Senator Grassley. Thank you. Do you believe it is proper for a judge, consistent with governing precedent, to strike down an act of Congress that is deemed unconstitutional and what might be those circumstances? Ms. Halligan. Senator, thank you for the opportunity to address that. I think that the job of a judge is to examine the constitutionality of a statute when a constitutional challenge is presented, but I think that that authority has to be exercised very sparingly and very carefully. I think particularly my experience defending a state government against a wide range of constitutional challenges on different issues has taught me just how serious an act it is for a judge to strike down a statute and, therefore, set aside the will of the people that are acting through their representatives. Senator Grassley. I think you are giving great deference in your response to legislatures deciding public policy as opposed to judges. Ms. Halligan. I believe that is absolutely the province of the elected branches, Senator, yes. Senator Grassley. Then let me ask you to comment on a speech in 2005 that Justice Scalia said this, ``Every time the Supreme Court defines another right in the Constitution, it reduces the scope of democratic debate.'' So do you think that Justice Scalia might be saying something you would agree with? Ms. Halligan. I think that courts should be very careful about striking down any statute that is enacted by a legislature. Senator Grassley. It sounds to me like you believe that the Federal Government is one of limited enumerated powers, but I would like to have that clearly stated. Ms. Halligan. Thank you, Senator. Yes. The Supreme Court has been clear about that point in Lopez and Morrison, and the Constitution indicates that, as well, I believe. Senator Grassley. Let me ask two short questions, please. Senator Coons. Certainly. Senator Grassley. My time is up, I see. Senator Coons. Certainly. Senator Grassley. Do you believe that all powers not specifically delegated in the Federal Government are reserved to the states, according to the Tenth Amendment? Ms. Halligan. Yes, Your Honor, that is what the text-- sorry--Senator, that is what the text says. Senator Grassley. Now, just as an opportunity to have you think about, if we are a government based on enumerated limited powers and the Federal Government is limited by the Tenth Amendment, could you give me an example of an activity that the Federal Government does not have the authority to regulate? Ms. Halligan. Well, I think the Supreme Court addressed that in Lopez, for example, when it said that Congress could not regulate, I believe--it has been a while since I read the decision, but I believe it was the possession of guns in school zones, and that was an example of where, in the court's opinion, Congress had transgressed its authority. Senator Grassley. And you know that is probably about the only commerce clause case where the courts have restricted the Federal Government under the commerce clause, as well. I hope there are more of them. But you at least see that as one of those. OK. Senator Coons. Thank you, Senator Grassley. We now turn to Senator Blumenthal. Senator? Senator Blumenthal. Thank you, Senator Coons. And welcome to you and your family. And I would like to say how impressed I am not only with your experience in public service and your experience in litigation, but, also, in the appellate practice, which is a somewhat specialized area; obviously, very germane and relevant to the position that you have been nominated to fill. Just to follow-up on some of Senator Grassley's very excellent questions. In your representation of the State of New York and now the district attorney's office, very often, you are in the position of either defending or advocating positions that are those of your client, and I assume that your views are separate and distinct from whatever positions have to be taken---- Ms. Halligan. Thank you. Senator Blumenthal. [continuing]. To advocate the positions of those clients. Ms. Halligan. Thank you for your kind remarks, Senator. Yes, that is correct. My work on behalf of the State Government of New York, as well as in the district attorney's office, as well as my work on behalf of clients in the private sector, represents the work of an advocate, to make the best arguments possible, and not my personal views at all. Senator Blumenthal. And I might actually note, on a personal level, that as attorney general, I was on the opposite side of a case that reached the court of appeals in New York challenging the constitutionality of the New York commuter tax, and your office, under your leadership, was very vigorous and excellent in its advocacy, fortunately, on the losing side of that case. [Laughter.] Senator Blumenthal. But I know that in that instance and others, your personal views may have differed from the State of New York, but you were very zealous and vigorous in advocating it. And I assume that now that you would be assuming a judicial position, your goal would be to follow the law, not necessarily your own personal beliefs. Ms. Halligan. That is correct, Senator. I have great respect for the rule of law and I think my experiences as an advocate have taught me that it is really important that every judge leave their personal views at the door when they come into the courtroom. So I would strive my best to do that. Senator Blumenthal. Thank you very much. Thank you, Mr. Chairman. Senator Coons. Thank you, Senator Blumenthal. We now turn to Senator Kyl. Senator? Senator Kyl. My colleague, Senator Lee, was here before I was, but you are going to by seniority rather than presence. Senator Coons. That is my understanding, yes. Senator Kyl. Then if my colleague does not mind, thank you. Thank you. Could I, first of all, ask you, when you talked about the New York City Bar report, you said, ``It does not reflect my views.'' Was that just with respect to the indefinite detention of enemy combatants issue or other aspects of that report? Ms. Halligan. Senator, the issues that that report touched on are not ones that I have studied closely. What was clear to me is that that point, in particular, was flatly contradicted by the Supreme Court. I must say I do not really have clear views about a range of the other issues raised in the report, but I certainly do not agree with them and it does not reflect my work or my views. Senator Kyl. But you were a signatory to the report; is that correct? Ms. Halligan. Senator, I was a member of the committee. I have no recollection of being apprised of the fact that the report was being drafted, and I clearly should have paid more attention to that and would not agree to serve on a Committee like that in the future unless I could be full apprised of the work that it was conducting. But I learned about it for the first time this summer. Senator Kyl. Well, is your signature affixed to it or your name listed as an approver of the report in any way? Ms. Halligan. When I identified the report this summer, the report indicates that it comes from the Federal Courts Committee. There is a list of names at the end and mine is one them, which reflects my membership on the committee. Senator Kyl. Do you remember participating in any of the deliberations of the committee? Ms. Halligan. Not with regard to this report. I did not even recall that it had been written. I was very surprised when I saw it. Senator Kyl. So it is accurate to summarize that you do not remember participating in any of the deliberations of that Committee relative to the report that we are talking about of 2004. Ms. Halligan. That is correct, Senator. Senator Kyl. And let me just ask you if, prior to this hearing, you took the opportunity to make that point or to criticize any aspect of the report. Ms. Halligan. No, Senator. Senator Kyl. Let me ask you about another matter that is covered by the report that has to do with the military commissions, because you have expressed opinions about military commissions. One is the report's conclusion that it is illegal or it should be illegal for the use of military commissions to try alien terrorists for violations of the laws of war. In fact, the report talks about--it says it seems self-evident that the constitutional protections afforded ordinary criminals should presumptively extend to these terrorists. Do you agree with that conclusion or is that part of the language you said that you wanted to distance yourself from? Ms. Halligan. Senator, my understanding--again, I am not well versed in this area, but my understanding is that the Supreme Court said in Hamdan simply that the military commission procedures that were set up by President Bush shortly after 9/11 were simply inconsistent with Federal statute, not that they were unconstitutional. I believe---- Senator Kyl. That is correct. So the question then is with regard to the report's conclusion that it would be unconstitutional to have military commissions, per se, trying these terrorists for violations of laws of war, my question is whether you disagree with that conclusion, as well. Ms. Halligan. Senator, my understanding is that the current law, enacted in 2009, provides for review of actions by military commissions by the D.C. circuit. So I think it would be inappropriate to comment on that precise question, but I would take my guidance from the Supreme Court's precedent in Hamdan and any other cases which it decided that were relevant to this point, if I were confirmed. Senator Kyl. When you were practicing, you coauthored an amicus brief in the al-Marri case, and it argued that the use of military force authorization that Congress passed did not authorize the seizure and indefinite military detention of a lawful permanent resident alien who was alleged to have conspired with al-Qaeda to execute terrorist attacks on the United States. Is that a personal view of yours? Ms. Halligan. No, Senator. That was a brief that--I was not the primary author of the brief, but it was filed on behalf of a client. It does not represent my personal views. Senator Kyl. All right. Do you have a personal view on that issue? Ms. Halligan. I do not, Senator. Senator Kyl. Understanding that some of the 9/11 hijackers came to the United States under legal visas, do you think that a credible argument can be made for the proposition that an authorization of the use of military force would not include the ability to seize and to hold such terrorists indefinitely? Ms. Halligan. As a citizen, Senator, that seems like that might be difficult. If I were a judge sitting on a court considering that question, I would have to put that personal sensibility to the side and look at the law. Senator Kyl. Since my time is up, let me just make a point. Obviously, we have 5 minutes, we are trying to get right to the point on something. But for those in the audience, there is a clear possibility that people who appear before the Committee express views that they believe the Committee want to hear rather than necessarily what their own attitudes toward judging would be. We have seen that happen in the past, and that is why we try to delve into questions that might reflect on your ability to decide cases before you objectively as opposed to from the position of preconceived notions. I am sure you can appreciate that is the reason for some of the questions that you see asked today, and that is the foundation for my questions. Ms. Halligan. Senator, thank you. I appreciate that, and I do believe that I have had the opportunity to consider a wide range of cases on different issues and I think that whatever my personal views are, I would need to leave those to the side, if I were confirmed. Senator Kyl. Incidentally, just as a matter of clarity, you are not required to argue an amicus brief position. That is something you voluntarily agree to do. Is that not correct? Ms. Halligan. That was a decision that was made by the attorney general and any work I did on those briefs was under his direction, Senator. Senator Kyl. I see. Thank you very much. Ms. Halligan. Thank you, Senator. Senator Kyl. Thank you, Mr. Chairman. Senator Coons. Thank you, Senator Kyl. Senator Lee. Senator Lee. Thank you. I wanted to open just by responding to something made by my colleague from New York a few minutes ago with respect to the caseload within the D.C. circuit. It is my understanding, based on data I have, that if anything, the caseload of the D.C. circuit has decreased rather than increased over the last few years since 2006. Nonetheless, we are here to discuss this nominee and will proceed right to that. Thank you very much for joining us. I wanted to open our discussion by just talking about the importance of dispositive motions. As an attorney, I have sometimes had a frustration or a few that there might be some tendency among judges to want to deny dispositive motions instinctively. I have wondered whether you could almost call this a form of defensive jurisprudence. As a judge, after all, it is easier to deny a motion for summary judgment or a motion to dismiss than it is to grant it. If you grant it, you are normally going to throw in an opinion. That opinion might be immediately appealable. You might get overturned. Whereas, if you deny the same motion, then the parties might settle on their own and it results in a form of trial by attrition. Is this a practice that you may have seen as an attorney from time to time? Is it one that is troubling to you? Ms. Halligan. As a litigant, I can empathize with that sense of frustration. I think that those are issues that are generally confronted in the first instance by the district courts. And if I were confirmed to an appellate court, I would apply the standard for reviewing any such decisions that was set forth in precedent. Senator Lee. And I guess that feeds into my next question, which is you, as an appellate judge, would have the opportunity to review these and to scour the records to see where that would happen. I would assume you would be on the lookout for such instances so that you could discourage that from happening. Ms. Halligan. Yes, Senator. Senator Lee. I would like to talk to you briefly about a statement made by Alexander Hamilton in Federalist No. 78 that relates to the role that you would be playing, should you be confirmed to this judgeship. In No. 78, he said, ``The courts must declare the sense of the law and if they should disposed to exercise will instead of judgment, the consequence would be equally the substitution of their pleasure to that of the legislative body.'' In other words, he is drawing this dichotomy between something he calls ``will,'' the prerogative of the legislature, to judgment, the prerogative of the courts. What do you think he is talking about there? What is ``will'' and what is ``judgment? '' Ms. Halligan. It has been a little while since I have read Federalist 78, but from your comments, what I believe that he is talking about is the importance of judges confining themselves to deciding cases on the facts and leaving policymaking for the branches that are constitutionally authorized and, also, best equipped for doing so, which is the legislature and the executive branch. Senator Lee. Thank you. I wanted to follow-up on Senator Grassley's question from a few minutes ago about providing examples revealing the fact that the Federal Government is one of limited enumerated powers. I assume you would agree that the Federal Government was designed to be one with few and defined powers, whereas the states were intended to retain powers that were broader and without comparable limitations. Ms. Halligan. The Constitution says that it is a government of limited powers. Senator Lee. In light of that, Senator Grassley asked you a question of whether you could provide an example or a few examples of things that government might want to do, but that shouldn't be done and can't be done at the Federal level consistent with that enumerated powers concept. You mentioned Lopez. Outside of the context of Lopez and Morrison, which, as far as I am aware, are the only two instances in the last 75 years where the court has invalidated something Congress has done under the commerce clause, any examples, hypothetical or otherwise, that you can point to of where Congress might step out of its limited role? Ms. Halligan. I think that is hard to say, Senator--thank you for the question--especially without the benefit of some further facts or some area in which Congress might legislate. Senator Lee. Could Congress legislate that I need to eat four servings of green, leafy vegetables in one day? Ms. Halligan. Sometimes I think I should do that in my own house, Senator. Senator Lee. Would it be appropriate legislation for your children, I should ask? Ms. Halligan. It might be. I think that if Congress were to enact a statute like that, a court would properly look at the Supreme Court's decisions in Lopez and Morrison and look at the reasons that Congress had enacted the statute and decide, as best it could, whether or not it had transgressed its powers. Senator Lee. Can you tell me anything about what your instinct would be on that? Does that strike you as economic activity or non-economic activity? Let us assume that Congress made findings of fact showing that Americans were more likely to consume more health care, health care that might have to be provided by the Federal Government, if they did not eat green, leafy vegetables four times a day. Ms. Halligan. Senator, I think, in the abstract, it is hard to say. I think that that is the sort of question that would be best resolved with the benefit of a statute and briefing and argument. Senator Lee. So you see no glaring problem with that that strikes out at you off the page. You would have to examine it in context. Ms. Halligan. I think as with any statute, you would need to look at it in context. Senator Lee. Understood. Ms. Halligan. Thank you, Senator. Senator Lee. Thank you. Thank you, Mr. Chairman. Senator Coons. Thank you, Senator. We now begin the second round of questions, Ms. Halligan. The concept of federalism holds that Federal legislation is entitled to supremacy, to follow-up on the conversation you were just having, whereas the Federal Government is empowered to act and state authority is supreme in other areas. In areas where both levels of government are empowered to act, courts are often called upon to resolve whether Federal action preempts related state law, and that is an area of law in which you have practiced fairly extensively. If faced with a similar question of Federal preemption, how would you go about deciding whether state law should be enforced, should you be confirmed to the D.C. circuit? Ms. Halligan. Thank you, Senator. I think with any preemption case, the touchstone is what did Congress intend. If Congress intended to preempt state law, then the state law has to be set aside. And so I would look at the Federal statute and I would look at, as the precedent directs, the purposes that it was intended to achieve, and I would follow the Supreme Court's precedent in that area. Senator Coons. There was a conversation previously. I asked in the first round about the Federal Courts Committee of the New York City Bar. Just to be clear, how many members were there of that committee? Do you have a sense? Ms. Halligan. I believe there were about 45, give or take a few. I would want to check to give you a precise number, Senator. Senator Coons. And last, what are the most important lessons you have learned? As other Senators have commented, you have got a broad and long experience in public service in the law. What are the lessons you have learned in those respective positions and how would you apply those lessons as a Federal circuit court judge? Ms. Halligan. Thank you, Senator. I think that from my experience in private practice, as well as my experience in public service, I have had the opportunity to litigate a lot of cases on a lot of different issues, and what that has taught me is, first of all, that it is critical that judges come to cases with an open mind, that they be fair and that they be impartial, and, also, that they be respectful to the litigants that are before them. It has also led me to believe that it is very important for judges to decide cases narrowly on the facts before them and to give guidance that is as clear as possible so that parties can plan their conduct going forward accordingly. Senator Coons. Thank you. As I believe Senator Schumer and others have referenced earlier, I think one of the reasons that you are particularly well qualified for the D.C. circuit is the hands-on and practical experience you have had representing the State of New York and in other roles and sort of understanding the practical consequences of judicial decisions. Could you just, in the last, if you would, explain for me the difference between the role of legal advocates and the role you perceive as a judge and exactly how you would rely on precedent in making decisions on the Federal circuit court? Ms. Halligan. Thank you, Senator. I think as an advocate, you look to precedent to see what reasonable arguments you can make on your behalf, whether those are winning arguments at the end of the day or not. And as part of that, I believe that you are pressing the position of your client to the very best of your abilities, whether that is a winning position or a losing position. I think, by contrast, as a judge, you need to come to it without any agenda, without any interests, your clients or you own, at the table, and look to precedent to guide you to what the correct answer under the law is. And I think in most cases, there is a correct answer that the precedent directs you toward. Senator Coons. Thank you, Ms. Halligan. Senator Grassley. Senator Grassley. A couple of short questions in the follow-up on something you had a discussion on. I kind of tried to get your views on whether or not you believe the Constitution interpretation of original intent or--I used the word ``evolving,'' and you said that the Constitution is an enduring document. What do you mean by the word ``enduring'' as opposed to-- well, I should not say as opposed to anything else, because you used it. Ms. Halligan. What I mean by that, Senator--thank you for the opportunity to clarify that. What I mean by that is that we have a document that was written more than 200 years ago and it is those words in that document that endure today and that guide the decisions that judges must make when confronted with a constitutional question. Senator Grassley. My next question I think maybe you just answered, but I am going to ask it anyway. Do you believe that the Constitution is also an evolving document? Ms. Halligan. I am not sure what evolving means, Senator. I think that if faced with a constitutional question, a judge has to look to the text and attempt to understand the original intent behind those words. Senator Grassley. Thank you. Senator Coons. Thank you, Senator Grassley. Senator Blumenthal, any further questions? Senator Blumenthal. Thank you, Mr. Chairman. Just a couple of quick questions to follow-up on a point that was raised earlier by Senator Kyl concerning the amicus briefs that may have borne your name over the years. My recollection is that you served as solicitor general for the attorney general's office in New York between the years 2001 to 2007; is that correct? Ms. Halligan. Yes, Senator. Senator Blumenthal. And that would cover the terms of Attorney General Spitzer and partly Attorney General Cuomo. Ms. Halligan. A short period of time in Attorney General Cuomo's administration, yes, Senator. Senator Blumenthal. And I served as attorney general of Connecticut during those years. My recollection is that they were very active and interested in whatever the subject matter was that could concern those amicus curiae briefs and that their say was not only final, but very often their initiative was what resulted in the New York State attorney general's office and the State of New York becoming an amicus in those cases; is that correct? Ms. Halligan. Yes. Those briefs were written and filed at the direction of the attorney general himself. That is correct. Senator Blumenthal. And just to follow-up on Senator Lee's excellent point about the workload, my recollection is, correct me if I am wrong, that the D.C. Court of Appeals actually was reduced in the number of judges by one in response to decreases in workload; is that correct? Ms. Halligan. Thank you, Senator. I do not really know about the workload statistics of the change in the number of judges on the D.C. circuit. Senator Blumenthal. I think that in 2008, the number of judges was reduced by one on that court and there are now vacancies for two, and you would be filling one of them. So that may respond, at least in part, to the point raised by-- very legitimate point raised by Senator Lee as to trying to allocate judges to respond to workload shifts and changes. Thank you. Senator Coons. Thank you, Senator Blumenthal. Senator Lee, do you have any remaining questions? Senator Lee. Yes. Just a couple of quick follow-up points. We were talking earlier about the need to look at Congress' limited power. In your opinion, as one who might be joining the D.C. circuit here shortly, is it worse to uphold the law passed in excess of Congress' power or would it be worse to invalidate a valid law? Is either one of those worse than the other? Ms. Halligan. Thank you, Senator. It is not a question I have really thought about, to be honest with you. I believe that a judge confronted with a question about whether a law exceeds Congress' commerce clause powers would really just need to look at the precedent and evaluate that particular statute as best as they could. Senator Lee. Sometimes in criticizing a ruling invalidating a piece of legislation, people will say that is an act of activism. I guess my question is designed to get at are activism and passivism both ultimately a question of good judgment or bad judgment. If you are invalidating something that is bad, you are just doing your job. If you are upholding something that is within Congress' power, you are also just doing your job. So I assume you would not disagree with that point. Ms. Halligan. No, Senator. I believe that one of the jobs that judges are confronted with is to police the boundaries that the Constitution sets forth, and they need to do that. Senator Lee. So invalidating a piece of legislation would not necessarily make you a bad activist judge. It might just mean that you are doing your job. Ms. Halligan. Absolutely, Senator, yes. Thank you. Senator Lee. I wanted to ask you very briefly about a speech you gave on May 5, 2003 in White Plains, and you made a statement during that speech to the effect that courts are the special friend of liberty. Time and time again, we have seen how the dynamics of our rule of law enables enviable social progress and mobility. I was wondering if you could just share with us, with the committee, what you might have meant in suggesting that the law and perhaps the courts, in particular, can be used as a tool of social progress and how such a view might influence your role as a judge and how you might approach your job, if you were confirmed? Ms. Halligan. Senator, that was a speech--thank you. That was a speech that was given in the attorney general's stead. I do not recall, candidly, what was in my head when I made that particular remark, and I do not see any way in which it would affect my role as a judge one way or the other, were I lucky enough to be confirmed. Senator Lee. Understood. Thank you. Ms. Halligan. Thank you, Senator. Senator Lee. Thank you, Mr. Chairman. Senator Coons. Thank you, Senator Lee. Are there any members who have further questions? Senator Grassley. I presume I will submit some for writing. Senator Coons. Seeing none, if there are no further questions, we will hold the record open for a week, if there are any members of this Committee who wish to submit further questions. Again, I want to very much thank you, Ms. Halligan, for being here today, congratulate you on your nomination and your willingness to continue in a long and dedicated career of public service. As Ms. Halligan and her friends and family are departing, we may take a brief 2-minute recess before the second panel. [The biographical information follows.]
Thank you. Ms. Halligan. Thank you, Senator. Senator Coons. We stand in recess. [Recess.] Senator Coons. I call the Committee back into order. I would like to proceed with our second panel of nominees for consideration today, if we might. I would like to invite the three nominees remaining to stand. Please raise your right hands, if you would. In case there is any question, Ms. Williams, Ms. D'Agostino, Mr. Feighery, if you would, please, sir. [Nominees sworn.] Senator Coons. Thank you. Please be seated, having been duly sworn. Let the record reflect each of the nominees has taken the oath. Now, each of you, in turn, will have the opportunity to recognize your family and friends, and, if you so choose, to give an statement. Ms. D'Agostino, starting with you, I would welcome you to acknowledge family, friends, and give your statement. STATEMENT OF MAE D'AGOSTINO, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK Ms. D'Agostino. Thank you, Senator. First of all, I would like to thank you and Senator Grassley and the other members of the Committee for the opportunity to be here this morning. I am going to begin by recognizing a few people who could not make it here today. My hometown, Albany, is under a blanket of snow, as I believe are many other parts of the country. But first and foremost, my mother, Teresa D'Agostino, is home and, thanks to my brother-in-law, Bob, and my niece, Amanda, is hopefully watching this on the Webcast. And I had three dear friends who were essentially camping out at the Albany Airport to try to get here and did not make it; Michael Kanig (ph), Lori Shanks (ph), and Sean Casey (ph). But with me today, I have my son, Ted, who is a junior in high school at Trinity Pawling School; my sister, Sally; and, my brother, Francis; and, my niece, April, very supportive of me my entire career. I also have two cousins, Linda Sciotti and Anne Noel Occhialino; and, two friends, Emilio Garcia and Arete Sprio, who came last night from San Antonio. Other than being allowed to make those kind introductions and to thank Senator Schumer for recommending me and the President of the United States for this great honor of the nomination, and to thank Senator Schumer for the very kind introduction, I have no other statement, Senator. Senator Coons. Thank you, Ms. D'Agostino. Ms. Williams, would you like to acknowledge or recognize friends or family and offer a statement? [The biographical information follows.]
STATEMENT OF KATHLEEN M. WILLIAMS, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA Ms. Williams. Yes. Thank you, Senator Coons. Thank you for chairing this proceeding today. Thanks to Senator Grassley and the other members for convening us. It is a rare privilege to be able to discuss my nomination with you. I would also like to thank Senator Bill Nelson and Senator Marco Rubio for their very kind and generous introductory remarks. I would be remiss if I did not acknowledge former Senator Mel Martinez and former Senator George LeMieux and the support they have given me throughout this process. And, of course, my profound gratitude to President Barack Obama. I am humbled and honored by his nomination and the confidence he has expressed in my abilities. I have with me today some very special and important people. So with the committee's indulgence, I would like to introduce my extended family, starting with Catherine Dee and Dr. Adrienne Maraist, my sisters and friends since seventh grade. Dr. Maraist has with her today her daughters, Lydia and Sarah, and I am happy to see them here. I would also like to acknowledge my college roommate, Ms. Laurie Vikander; my colleagues from my private sector days at Morgan, Lewis & Bockius, Peter Buscemi and William Gardner, and their wives and my friends, Dr. Melinda Gardner and Judith Miller. My chief assistant has come up from south Florida, Michael Caruso, without whose support I would not be here. And my chief of our appellate division, Paul Rashkind, is here. My office, I would like to say thank you to them. I am sure they are furiously multitasking while they are watching this Webcast. I also have some former assistants from my office here today, David Marcus and Brian Stekloff (ph). The members of the Office of Defender Services at the Administrative Office of the Court, Dick Wolfe, Steve Ason (ph) and Judy Marotska (ph), and a good friend, Jennifer Burne (ph). Finally, the two people without whom I would not have been able to make this journey, the gentleman behind me, Michael John Mullaney, the love of my life, who is now embarrassed by that unmanly characterization, and my dad, William Williams. I have a picture on my dresser at home that shows a 3-year-old me sitting atop the shoulders of my father in front of the Capitol building, and I wanted this Committee to know that in every way that is meaningful, he is still supporting me and I am still sitting atop his shoulders as I sit here today, and I want to thank you for the opportunity to remember him. Thank you very much. Senator Coons. Thank you, Ms. Williams. Mr. Feighery. [The biographical information follows.]
STATEMENT OF TIMOTHY J. FEIGHERY, NOMINEE TO BE CHAIRMAN OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION Mr. Feighery. Thank you, Mr. Chairman. Thank you for giving me the opportunity to express my thanks to many of the people who are here and who have been instrumental in my being here before you today. I would, first of all, like to thank Senator Schumer for his very generous remarks and for taking the time out of his busy schedule to introduce me today. I would also like to thank President Obama for the honor of this nomination, and you, Mr. Chairman and Ranking Member Grassley and members of the committee, for allowing me to appear before you today. I would like to acknowledge my friends and colleagues who are here today and those who are watching on Webcast. I appreciate very much their friendship and support. And I would also like to acknowledge my eight brothers and sisters and their families, my big family, 18 nieces and nephews in all, and, also, the Smoot family, who they will all be tuning in at some point on the Webcast. And now I would like, if I could, to introduce some of the members of my family who are able to be here today, beginning with my father, Tom Feighery, who is a native of the Bronx, New York, and my mother, Anne Feighery, a native of the Town of Tullamore, County Offaly in Ireland. It is not an easy journey for them, but I can't thank them enough for being here today and, also, for their love and support throughout my life. I am also very pleased that my three children, Finn, aged 11, Teddy, aged 9, and Anne, aged 6, can be here today, although I see that they are taking a break at an opportune time. But they have been looking forward to this day and I think mostly because they get some time off school. Senator Coons. The chair notes they have rejoined us. So, Mr. Feighery, if you would like to renew your recognition of them. After a completely understandable break, they continue their excellent behavior. So let us remind for a moment, Mr. Feighery. Mr. Feighery. I will introduce again then my three children, Anne here, aged 6, Teddy in the middle, who is aged 9, and Finn, aged 11. I am grateful that they are able to experience a real life civics lesson here today. So in lieu of missing school, they do get a real life lesson. So thank you, members of the committee, for that, also. I thank them for their unconditional love every day and I am very proud of them. Finally, I would like to introduce you to my wife, Sarah, a native of North Carolina, who has been my partner in all things since we first met here in D.C. about 15 years ago. She is a constant source of strength for me and I am eternally grateful for her love and support. And Senator Schumer noted that I might have left New York under duress, and I can assure the Senator that it was a labor of love. And with that, Mr. Chairman, I thank you again and I look forward to questions.
Senator Coons. Thank you very much, Mr. Feighery, Ms. D'Agostino, Ms. Williams. All of us in public service are sustained by a broad network of friends and family, and I appreciate your particularly moving recognitions of the folks who have sustained you in your journey of service so far. So let me begin then, if I might, with questions. Ms. D'Agostino and Ms. Williams, would you briefly describe your judicial philosophy, please, beginning with Ms. D'Agostino? Ms. D'Agostino. Well, Senator, my judicial philosophy is really quite simple. Firstly, a judge must follow at all times the rule of law. Second, it is very important, I think, for a judge to treat everyone who comes before him or her with great respect, irregardless of the individual's walk of life of station. And, third, I think that a judge must have an impartiality and an objectivity that is beyond reproach. Senator Coons. Thank you, Ms. D'Agostino. Ms. Williams. Ms. Williams. Yes, Senator. The role of a judge, I believe, is to be a fair and impartial arbiter of any matter that comes before him or her. To commit yourself to this service, I think you start with a commitment to equal justice and due process and the rule of law and you treat everyone who comes before you with fairness and dignity and respect. So I believe, as a judge, I would study the matter carefully, I would listen well to all parties and all litigants, and I would then attempt to apply the law in a fair and judicious manner for a just resolution of whatever came before me. Senator Coons. Thank you, Ms. Williams. Mr. Feighery, many folks are not familiar with the Foreign Claims Settlement Commission. If you could, please, briefly describe for us its role and what your role might be as chairman. I believe Senator Schumer gave us an introduction to it previously, but it certainly could not hurt for us to have a further explication of the point. Mr. Feighery. Thank you, Senator. Thank you for the question. The Foreign Claims Settlement Commission is a quasi- judicial organization that takes the claims that are delegated to it either by Congress or by reference from the State Department and then decides those claims under the rule of law and under the carefully circumscribed claims settlement or other rules. So it is very much--it has a long history in the United States and has greatly served the most worthy of our citizens, the U.S. victims of either terrorism of expropriation abroad or other matters. So it has a very important role to continue to play, although it does play it quite under the radar. Senator Coons. And next, if I might, would each of you just explain for us how the previous experiences you have had, whether as a trial advocate, as a public defender, or as someone who has served in a number of different claims commissions, how have the experiences you have had professionally prepared you to serve in the respective roles for which you have been nominated and how would you expect the role to change, as either Chairman or district court judge? Ms. D'Agostino. Ms. D'Agostino. Well, Senator, over the course of the last 30 years, I have tried many, many cases to a conclusion and, along the way, I have also had an opportunity to settle many cases. I think I have learned a great deal about litigation, a great deal about bringing matters to a reasonable conclusion. And as Senator Schumer was kind enough to point out during his introduction, I was able, along with another attorney in Albany, to organize a settlement of many cases in our community. If I am fortunate enough to become a district court judge, I will bring the skills that I have learned over the last 30 years. I will attempt to treat everyone with great respect, and, hopefully, I would take all of my trial skills and my negotiating skills and bring those to the bench and be a very effective district court judge. Senator Coons. Thank you, Ms. D'Agostino. Ms. Williams. Ms. Williams. Thank you, Senator. I have spent my entire career in the Federal court system as a Federal prosecutor, as a Federal defender, as a civil attorney, and as a public sector attorney, as a trial attorney, and now administrator of a medium-size law firm, and I believe the skill sets I have acquired in each of those roles would help me not only substantively, but in the administration of justice. Senator Coons. Thank you, Ms. Williams. Mr. Feighery. Mr. Feighery. Thank you, Mr. Chairman. I think my prior experiences both at the United Nations Compensation Commission, working with Special Master Ken Feinberg on the 9/11 Fund, and, also, my work at the State Department has prepared me to take on the role of the chairman, if I am so fortunate to be confirmed, in that I have worked in these claim funds and am familiar with the submission of claims, the organization of claims, the issues that go into resolving claims, the need to work within the regulatory or statutory framework that you are handed within that particular claims category or organization. I think all of these, including the managerial experiences that I have had along the way in these particular programs, will help me, should I be fortunate enough to become Chairman of the Foreign Claims Settlement Commission. Senator Coons. Thank you, Mr. Feighery. That is my first round of questions. Senator Grassley. Well, welcome to all of you. Glad to have you here. Starting with Ms. Williams. You made some remarks before the Federal Bar Association in December 2005, ``Interestingly, while we don't seem to have a problem using foreign nations to part people, there are those who do have a problem using foreign law to inform debates here, especially in regard to the death penalty.'' This comment appears to be alluding to the Supreme Court decision in Roper. The Supreme Court, as you know, said the Eighth Amendment precluded execution of minors. I do not want to dwell on the execution of minors, but I do want to dwell on the foreign law aspect. Do you think it is proper to look to foreign law to determine the meaning of the U.S. Constitution; and, if not, what did you mean in your statement about using foreign law to inform debate? Ms. Williams. I do not believe, Senator, that foreign law has any place in making or interpreting constitutional provisions. I was using that as a juxtaposition to provoke thought in my audience for some of the events transpiring, which included use of foreign prisons to detain persons. Senator Grassley. It will be a follow-up, but I think you have already answered it, but let me be more specific. In your view, is it ever proper for judges to rely on foreign law or the views of, quote-unquote, the world community in determining the meaning of the Constitution? Ms. Williams. No, Senator, unless it is explicitly provided for in statute or perhaps in extradition matters where you must examine the reciprocity. It is not proper, no. Senator Grassley. On several occasions, you have made statements that appear to call into question certain practices of the prosecution of suspected terrorists. For instance, in a speech you gave before the ACLU in 2003, you made a reference to ``secret detention, secret lists of detainees, secret proceedings, secret evidence, and absolutely, positively, under no circumstances, the right to lawyer.'' In a speech you gave in May 2008, you made similar remarks. You stated that you, ``have never believed that I would practice in a time when people were detained indefinitely by the Government of the United States, held in secret, without access to lawyers.'' In your view, what due process rights are required for foreign terrorists captured on the battlefield and detained outside the United States? Ms. Williams. Well, Senator, let me first say that the Supreme Court, in Hamdan and Hamdi, has considered detention issues and they have told us what is not due process as opposed to a primmer for what is. The ultimate question, though, would be, as a judge, how I would apply the law. My personal circumstance, however, is such that I would never preside over a terrorism case. My office has handled a terrorism matter and detainee matters, but because of my personal relationship with Mr. Mullaney, who is the chief of counterterrorism for the Department of Justice, I would recuse, as I have recused from all matters regarding terrorists or detainees. Senator Grassley. Could it be, as young as you are, though, that down the road 20 years, you might be involved in a terrorist case? Ms. Williams. Hopefully, with some retirement for my partner, down the road 20 years, I may be involved and, as such, I would apply the law as it was handed down by the Supreme Court and the 11th Circuit and not deviate in any way. Senator Grassley. I have more questions to ask you, but I think I better move on and maybe submit questions in writing. Mr. Feighery, I understand that there are currently a significant number of claims before the Federal Claims Settlement Commission that await adjudication. Now, it may be that you have not studied this, so you may not be able to answer it, but if confirmed, how would you plan to prioritize claims and what will you--and then I suppose I am leading up to the point of how would you try to get rid of this backlog. Mr. Feighery. Thank you very much, Senator, for the question. I have not studied this. I am not privy to the amount of the backlog or the kinds of claims, and all I can tell you is I would do what I have always done, which is to work hard with the staff and work our way through this backlog. And I recognize that this is very important and of great concern to the claimants, and so that would be my first priority, if I were confirmed. Senator Grassley. The commission operated on a budget for fiscal year 2010 of $2.1 million; for fiscal year 2011, the commission has requested an increase of $42,000. How will you ensure accountability and efficiency of the taxpayers' funds? Mr. Feighery. Well, the first thing I would do when I get in there is after understanding what the backlog is, is to have an understanding of where the money of the commission is spent and how it is spent and take whatever steps are necessary to make sure that the money we have is spent for the primary purpose of ensuring that American victims get their just compensation. Senator Grassley. Thank you. Why do you not go ahead? Senator Coons. Thank you, Senator Grassley. If I might, just one or two more questions from me. Ms. Williams, in your role as a Federal public defender, you have expressed, on some occasions, opposition to the severity of punishments contained in the sentencing guidelines, the Federal guidelines. If confirmed, in serving as the district court judge, what deference would you give to the Federal sentencing guidelines? Ms. Williams. Thank you, Senator. I, in my role as an advocate and a defender, identified shortcomings in a mandatory guideline system. As the chair is aware, the Supreme Court has stated--and all circuits, that I am aware of--in an advisory guideline system, you must start with an accurate calculation of the guidelines. So it appears that courts everywhere have given significant deference to the guidelines, as it is a starting point, and I would adhere to that in any sentences I would render. Senator Coons. Thank you very much, Ms. Williams. Ms. D'Agostino, could you, just briefly, for us, describe the role that precedent plays for you in applying the law as a district court judge? Ms. D'Agostino. Yes, Senator. I believe that precedent must be followed. It is the role of the district court judge to apply the law, to look at the precedent, and it would be very, very important at all times to follow prevailing precedent. Senator Coons. Thank you, Ms. D'Agostino. Mr. Feighery, what are the biggest challenges facing the Foreign Claims Settlement Commission moving forward, should you serve as chairman? Mr. Feighery. Mr. Chairman, thank you for the question. I think Ranking Member Grassley pointed to it, which is the backlog of claims that have been noted several times, and that is something that is clearly the single biggest challenge of the commission. We have got to work our way through that backlog as soon as possible, because these victims should not have to wait a day longer than absolutely necessary. Senator Coons. What do you think are the most important resources or possible changes in structure operations that might address the backlog? Mr. Feighery. Well, again, I am not sure, not being there. But if I were to be confirmed, I will take a quick and hard look at the resources. And I know, from my prior experience, that human resources in this kind of work are the most valuable and necessary. Senator Coons. Thank you, Mr. Feighery. Senator Grassley. Senator Grassley. I would ask Ms. D'Agostino a couple of questions. It is quite obvious that you have had a great deal of experience as a civil litigator and an excellent background in that area, and I have a question about your experience with criminal law and maybe you have a lot more than what we read about. But if I am right, not having as much experience in criminal law, is there anything more that you could share with us about your legal background to ease any concerns about the lack of criminal law experience? Ms. D'Agostino. Senator Grassley, you are absolutely correct that I have spent the majority of my career, actually all of it, in the field of civil litigation. With respect to criminal law, though, Senator, I would approach my preparation for this great honor, if I am to be a Federal court judge, the same way that I have approached my entire career. I made a pledge to myself 30 years ago that I would never go into a courtroom unprepared. And if I do become a Federal district court judge, I will do everything in my power to immediately read everything that I can about criminal procedure. I will avail myself of all of the opportunities that exist for new judges to be schooled on these matters. And when I take the bench, if I do take the bench, I will make certain that I am prepared to handle the criminal aspect. With respect to the rules of evidence and with respect to appropriate conduct in court, I think my vast civil experience will serve me well. Senator Grassley. You probably know that Senator Schumer and I have been advocates for cameras in the courtroom, and it looks like you have a little different view. I want to assure you that I would not vote against you just because you disagreed with us on cameras in the courtroom, but I would like to get your feeling on this. I believe it would open the courts to the public and bring about greater accountability, and I think Senator Schumer would say the same thing. So I have sponsored the Sunshine in the Courtroom Act, giving judges discretion to allow media coverage of Federal court proceedings. I understand, in the past, that you have expressed concern about allowing cameras in the courtroom for New York trial courts. You have been quoted in a 1989 Albany Times Union article, in which you expressed concerns that the New York legislature would make permanent cameras in the courtrooms. Specifically, you said, ``If just one innocent person is convicted of a crime because of a wrong atmosphere in a courtroom, the system has failed.'' My understanding is that since 1997, the State of New York no longer allows cameras in trial court proceedings. Did you have any firsthand experience with cameras in the courtroom during the period in which they were allowed in New York trial courts and, if so, how do you feel it affected your courtroom environment? Ms. D'Agostino. Thank you, Senator. Let me just begin by saying that my position on cameras in the courtroom has really evolved since 1988 or 1989. When cameras were first being used in New York, I was not certain if there were going to be appropriate safeguards to make sure that jurors did not feel uncomfortable with cameras, to make sure that witnesses did not feel uncomfortable. As the years have gone on and I have seen cameras in the courtroom in so many other jurisdictions, I have come to believe that is very appropriate as long as appropriate safeguards are in place. I think it does open up the courtroom to the people. If people can come in and watch a trial, and they often do in the cases that I try, I do not see a problem with people watching programs on Webcasts or television, and I really have not been asked since 1989 if my opinion has changed. But certainly, over the years, as I have seen the great success with cameras in the courtroom, I have no problem with it whatsoever. Senator Grassley. I guess you answered two other questions all at once. Here is something that is somewhat philosophical, but, to me, it has got some practical aspects of the type of people I want on the courts. You probably remember that when Justice Stevens announced his retirement, the President said that he would select a Supreme Court nominee, ``with a keen understanding of how the law affects the daily lives of American people.'' Do you believe judges should ever base their decisions on desired outcomes, or I suppose the opposite of that would be solely based upon the law and the facts presented? Ms. D'Agostino. Senator, I believe that a judge must decide cases on the law and the facts and precedent and not with a view toward what the outcome should be or with a view toward creating new law. We must look at precedent. We must, as judges, follow the rule of law at all times. Senator Grassley. Can I draw the conclusion it is pretty clear to you that there would never be circumstances where your own values could be placed in making some sort of a decision? Ms. D'Agostino. I would never let my own values result in a decision, Senator. That would be inappropriate. My job would be to rely on precedent and to apply the appropriate rules of law, as I know them. Senator Grassley. Well, I will try one more time. And you are not answering unfavorably, obviously, but this will be the last attempt. During her confirmation hearings, Justice Sotomayor rejected President Obama's so-called empathy standard, stating, ``We apply the law to facts. We don't apply feelings to facts,'' and I assume you would say you agree with Justice Sotomayor. Ms. D'Agostino. I do completely agree with that statement, Senator. Senator Grassley. I still may have some questions for answer in writing. Senator Coons. Thank you, Senator Grassley. There being no other Committee Members present, I having no further questions, we will hold the record open for a week. Members of the Committee can submit further written questions, as Senator Grassley indicated he might. I also ask, without objection, to submit for the record a statement from Chairman Leahy on these judicial nominees and the judicial nomination process. [The statement appears as a submission for the record.] Senator Coons. Again, I want to thank all three of our nominees from the second panel today, congratulate you on your nominations, on your strong families, and on the strong careers you have already had in public service, and express my gratitude for your responses to our questions today and for your willingness to continue in your careers in public service. Thank you all very much. We stand adjourned. [Whereupon, at 3:50 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.]
NOMINATIONS OF JIMMIE V. REYNA, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT; JOHN A. KRONSTADT, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; VINCENT L. BRICCETTI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; ARENDA L. Wright-Allen, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA; MICHAEL FRANCIS URBANSKI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA ---------- WEDNESDAY, FEBRUARY 16, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 3:02 p.m., Dirksen Senate Office Building, Room SD-226, Hon. Richard Blumenthal presiding. Present: Senators Feinstein, Klobuchar, Grassley, and Cornyn. OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF CONNECTICUT Senator Blumenthal. I am pleased to call to order this hearing of the Committee on the Judiciary and to welcome all of you here this afternoon for a very significant proceeding on a number of judicial nominees. I want to welcome the nominees and their families, and say to you that we are appreciative that you're here to support members of your families or friends in this very important moment. I'm also grateful to Chairman Leahy for giving me the honor of chairing this meeting, and to my colleagues for being here in support of the nominees from their home States. I just want to say, by way of brief opening statement, that I am always struck when I return to Connecticut, my home State, but how strongly people feel that they want justice done, they want the bench of the Federal courts to reflect the highest quality and instincts and background. I think we have nominees today who are in that tradition. We face many challenges as a Nation. Americans want us to work together. They want us to fill the vacancies that now exist. There are more than 100 of them. That is nearly 1 out of 8 Federal judgeships. Nearly half of these vacancies have been declared judicial emergencies. Over the last 2 years, quite simply, the Senate has failed to keep pace with those vacancies, has not kept pace even with the pace of retirements. We want to make sure that we attract the best and the brightest to our Federal bench. I am impressed. I have been impressed even in the short time that I've been in the U.S. Senate by the good faith on both sides of the aisle, and I want to welcome Senator Grassley, the Ranking Member, here. I appreciate his being here. But also, all across the political spectrum from all branches of government, Chief Justice John Roberts to the Attorney General, feeling that we need to begin moving on these nominations. And I believe that we are, and that both parties will be working together to that end. I look forward to working with Senator Grassley, as well as Chairman Leahy and other members on both sides of the aisle, to do my part, that we continue moving in the right direction, increase the pace of nominations and confirmations so that we can fulfill the hopes of the American people, that we act to make sure that justice is done in this great country. So I would again like to welcome the five nominees. We have with us today Jimmie Reyna, who has been nominated to be a judge on the Federal Circuit Court of Appeals. Mr. Reyna is a partner in Williams Mullin, and is an expert in international trade. He will be introduced by Senator Cornyn, and Senator Cardin, if he is here. We would also like to welcome Mr. John Kronstadt, who has been nominated to be U.S. District Court for the Central District of California. Mr. Kronstadt is currently a Los Angeles County Superior Court judge, and previously spent 24 years in private practice, including 17 years as a partner at the firm of Arnold & Porter. He will be introduced by Senator Feinstein, his home State Senator. I'd also like to welcome Mr. Vincent Briccetti. He's been nominated to be on the United States District Court for the Southern District of New York. He's currently in private practice in his own firm, and he's worked both as a prosecutor and a defense lawyer. Finally, we also welcome Arenda Wright-Allen, who has been nominated to the U.S. District Court for the Eastern District of Virginia, and Michael Francis Urbanski, nominated to be U.S. District judge for the Western District of Virginia. He is currently Supervisory Assistant, Federal Public Defender. Ms. Wright-Allen is a former Assistant U.S. Attorney, a former Navy JAG officer, and she would be the first African-American woman to serve on the District Court in Virginia. Mr. Urbanski served as a magistrate judge in the Western District of Virginia since 2004, and Ms. Wright-Allen and Mr. Urbanski will be introduced by their home State Senators who are here with us today, Senator Webb and Senator Warner. I would like to yield, now, to Senator Grassley for his opening remarks. STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Thank you, Mr. Chairman. I join the Chairman in welcoming the nominees who are here today, and of course with their families and friends. Everybody is proud of these nominations for their respective family members. This week we confirmed two more nominees to vacancies in the Federal judiciary. Both of these were what we call judicial emergencies. We have now confirmed five nominees during this new Congress. We have taken positive action in one way or another on nearly half of the 50 judicial nominees submitted during this Congress. So we're moving forward, as I indicated I would do on consensus nominees. On today's agenda are four District Court nominations and the U.S. Circuit Judge for the Federal Circuit. Mr. Chairman, I will not take time here to repeat the full biographical information on our nominees. I was going to take a minute or two on each of the nominees, but since what you have already said about them and their professional background and what they're being appointed to, I'm going to just put that part of my remarks in the record. But I would like to comment, because of the special nature of the Federal Circuit, not about Mr. Reyna, but about the circuit. Of course, everybody knows that the nominee has significant experience in international trade issues. One of the major concerns of the circuit, the Federal Circuit is unique among the courts of appeal. It is not geographically based, but has nationwide subject matter jurisdiction in designated areas. In addition to international trade, the court hears cases on patents, trademarks, government contracts, certain money claims against the U.S. Government, veterans' benefits, and public safety officers' benefit claims. Of particular interest to me, because over the last 22 years I have been very involved in whistle-blower protection legislation, is the U.S. Court of Appeals for the Federal Circuit having exclusive jurisdiction over cases related to Federal personnel matters. That includes exclusive jurisdiction over appeals from the Merit System Protection Board, which in turn hears whistle-blower cases under the Whistleblower Protection Act, and eventually some of those--or many, many, many of them--are appealed to this specialized court. So I thank you, Mr. Chairman, for your courtesies. Again, I welcome and congratulate the nominees. [The prepared statement of Senator Grassley appears as a submission for the record.] Senator Blumenthal. Thank you, Senator. Now, if I may call on, first, Senator Feinstein to introduce Superior Court Judge Kronstadt. PRESENTATION OF JOHN A. KRONSTADT, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA PRESENT BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Thank you very much, Mr. Chairman. I appreciate that. I am obviously very pleased to be here today to introduce California Superior Court Judge John Kronstadt to the Committee. Judge Kronstadt came to my attention through a judicial advisory Committee which I have established. They recruit, interview, vet, and advise on nominees. So this candidate has been reviewed based on his legal acumen, his reputation for skill and professionalism, his breadth of personal experience, temperament, and overall commitment to excellence in the field of law. Judge Kronstadt quickly rose to the top of candidates recommended to me by this Committee because he has all of these qualities in spades. Since 2002, he has presided as a judge on the Superior Court of Los Angeles County. His docket consists primarily of civil cases, ranging from employment litigation, to contract disputes, to intellectual property and other commercial matters. He has overseen some 250 trials, as well as countless pre-trial proceedings. In almost 9 years on the court, only one of his decisions has ever been reversed. That's a good record. Within the Los Angeles area, Judge Kronstadt is regarded as one of the finest judges on the bench. Fellow judges, litigants, and local lawyers describe him as ``incredibly smart'', ``very fair'', ``even-tempered'', and ``a hard worker who cares an incredible amount about the jury system''. Judge Kronstadt also brings a distinguished background in private practice, as the Chairman mentioned. Prior to becoming a judge, he spent roughly two dozen years as a litigator, trying complex civil cases before Federal courts, State courts, and administrative agencies. He began his career as an associate, and then a partner at the law firm of Arnold & Palmer, first in Washington, DC and then in Los Angeles. Between years with that firm, he also spent 15 years managing his own firm with three colleagues. That was the firm of Blanc, Williams, Johnston, and Kronstadt. Judge Kronstadt has a bachelor of arts degree from Cornell and a law degree from Yale. Beyond his educational and professional qualifications, he has also shown an impressive dedication to education and the teaching of students throughout his career. So since 2002, he has spent roughly 1,500 hours as a volunteer with the Constitutional Rights Foundation, including serving as the foundation's president. This is a nonprofit, nonpartisan organization in Los Angeles that seeks to educate young people to become active and responsible participants in our society, something, Mr. Chairman, we sorely need, and to teach them about the importance of civic participation in a democratic society. He has developed a program for the foundation known as Courtroom to Classroom. This facilitates visits by judges to 8th and 11th grade public school classrooms throughout the Los Angeles area. Judges who volunteer provide copies of the Constitution to students and organize mock trial activities to allow them to experience constitutional law and the courtroom at a young age. He has also organized similar activities as chair of the Los Angeles County Superior Court's Community Outreach Committee. He has developed a training program for the L.A. County Bar Association that has reached over 1,000 new attorneys. So he is truly eminently qualified and a very active and good citizen. He is here with his wife, who is a fellow judge on the Los Angeles Superior Court, and two daughters and a son, which have also brought themselves here. I think it's very nice that they're here to hear this for their father. So, I thank you very much, Mr. Chairman. Senator Blumenthal. Thank you, Senator. As many of you may know, we're in session this afternoon. The Senate is in session, so the Senators who are here to introduce the nominees from their States may not be able to stay. I know everyone will understand if they have to leave after they speak. Thank you very much, Senator. Senator Feinstein. Thank you. Senator Blumenthal. Senator Cornyn and Senator Cardin, to introduce Jimmie Reyna, please. PRESENTATION JIMMIE V. REYNA, NOMINEE TO BE U.S. CIRCUIT COURT FOR THE FEDERAL CIRCUIT PRESENT BY HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. Thank you, Mr. Chairman, for the opportunity to introduce Jimmie Reyna to the Committee, someone who I've come to know, admire and respect, and had the privilege of, along with Senator Cardin, recommending to the President that he nominate him for a seat on the U.S. Court of Appeals for the Federal Circuit. Based on his personal and professional background, I think he possesses the commitment, the skill, and the temperament necessary to apply the law faithfully. Mr. Reyna--his personal history exemplifies the American ideal of opportunity through service and hard work. He was born to Baptist missionaries in New Mexico. He battled adversity to graduate as valedictorian from his high school class, and earn a scholarship to college at the University of Rochester. After graduating from law school at the University of New Mexico, he came to the Nation's capital with, in his words, ``no job and a lot of hope''. Well, since then, Mr. Reyna has repeatedly put that hope into action and it's paid off. Perhaps the strongest testament to Mr. Reyna's abilities comes from the trust that others have placed in him. Throughout this 32-year legal career, he has consistently been recognized as an exceptional attorney by his peers. He has received a perfect AV rating from Martindale Hubble, and was distinguished as one of the best lawyers in the city of Washington, DC by Super Lawyers magazine. Even more impressive, in 2009 the Mexican government awarded him the Oakley Award in Law, its highest legal honor given to non-citizens. Mr. Reyna's legal background has also prepared him to serve with distinction on the Federal Circuit. For the past 24 years, he has practiced extensively within the field of international trade, as Senator Grassley noted, rising to the position on the board of directors of the Williams Mullin law firm. In addition to his private legal practice, he served on the U.S. roster of dispute settlement panelists for trade disputes under the North American Free Trade Agreement, and on the World Trade Organization dispute settlement mechanism. Mr. Reyna has also established himself as a scholar in the field of international law, authoring books on both NAFTA and GATT. As the former chairs of the American Bar Association's Section on International Law have noted, Mr. Reyna has ``an impeccable reputation within the international law community''. Because the Federal Circuit hears appeals from the U.S. Court of International Trade, his broad expertise in this area will help the court adjudicate some of the most complex cases on its docket. In a system where judicial resources are so scarce, his presence on the court will undoubtedly advance the interests of justice. Mr. Reyna's accolades, however, don't stop at the courtroom door. He has demonstrated a lifelong commitment to public service. As president of the National Hispanic Bar Association, he launched the first-ever outreach program designed to instill trust and confidence in the American legal system within the immigrant community, and he has worked tirelessly to protect some of our society's most vulnerable citizens, serving for more than a decade on the board of directors of the Community Services for the Autistic Adults and Children Foundation. Despite the many demands on his schedule, Mr. Reyna has also found the time in his career to practice extensively pro bono, helping to ensure that the American value of equal justice under law is preserved for all, no matter what their income may be. If the true measure of a person is what they are willing to do for others in need, then Mr. Reyna has once again exceeded all standards. Mr. Chairman, based on the impeccable credentials and distinguished legal career which I have just outlined here, I would urge my colleagues to join me in supporting the nomination of Jimmie V. Reyna to the Federal Circuit Court. Thank you very much. Senator Blumenthal. Thank you, Senator. Senator Cardin. PRESENTATION JIMMIE V. REYNA, NOMINEE TO BE U.S. CIRCUIT COURT FOR THE FEDERAL CIRCUIT PRESENT BY HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE STATE OF MARYLAND Senator Cardin. Mr. Chairman, thank you very much. I'm pleased to join Senator Cornyn in recommending and introducing Jimmie Reyna to the Judiciary Committee. We are very pleased that he has been willing to put his name forward to serve in this position, and I thank him for his commitment to public service. I want to acknowledge the sacrifice that he and his family will be making, and we very much appreciate that sacrifice. I am pleased to recommend Jimmie Reyna for a vacancy that now exists in the U.S. Court of Appeals for the Federal Circuit. Mr. Reyna comes to this Committee with 23 years of experience in international trade law. You have heard that from Senator Grassley and from Senator Cornyn. Mr. Reyna currently is a partner in the Washington, DC office of Williams Mullin. Mr. Reyna directs the firm's trade and custom practice group, as well as the firm's Latin America Task Force, and also served for several years on his firm's board of directors, where he currently serves as vice president. Mr. Reyna has also authored several articles and two books on international trade issues. His third book on the subject is due to be published this spring. His experience in trade law would bring important expertise to the Federal Circuit, a unique court with nationwide jurisdiction that deals with many trade law issues and yet currently lacks a trade specialist. Mr. Reyna was admitted to the New Mexico Bar in 1979, and the District of Columbia Bar in 1994. He received his JD from the University of New Mexico School of Law, and his BA from the University of Rochester. The American Bar Association's Standing Committee on the Federal Judiciary evaluated Mr. Reyna's nomination and rated him unanimously ``Well Qualified'', the highest possible rating. Senator Cornyn has talked about Mr. Reyna's personal history, which is very compelling. In his practice, he has often represented clients pro bono, devoting a large portion of his time to providing advice and representing individuals who could not afford legal assistance. To me, that speaks volumes of his commitment to our legal system, to make sure everyone has access to our system. He has carried out that responsibility as a lawyer and leader in the legal community. A few years later, Mr. Reyna moved with his family to the Washington, DC metro area, where he built his well-regarded career in international trade. Mr. Reyna has continuously proven that he is an outstanding and civic-minded person. He is a well-known national leader in U.S. Hispanic affairs. He has held various leadership positions in the Hispanic National Bar Association, including the national president, vice president of Regional Affairs, regional president, and chair of the International Law Committee. Mr. Reyna is also a founder and member of the board of directors of the U.S.-Mexico Law Institute. Through his work, Mr. Reyna has strived to ensure that members of disadvantaged communities are informed about the law, that the legal community is prepared to handle the legal challenges facing the growing Latino community, and that the judiciary remain strongly independent, impartial, and accessible to all. Mr. Reyna's civil service is not limited to his work in the Hispanic community. He has been recognized by the Court of International Trade for his extensive pro bono work before that court. He also serves on the board of directors of the Community Services for Autistic Adults and Children Foundation. Mr. Reyna's nomination will also bring much-needed diversity to the Federal Circuit. Throughout his career, he has shown a strong commitment to diversity and racial equality, not only through his service to the Hispanic community, but also through his service on the ABA's Presidential Commission on Diversity in the Legal Profession, and as chair of the Williams Mullin Diversity Committee. If Mr. Reyna is confirmed, he will be the first minority to serve on the Federal Circuit in its history. With the nomination of Mr. Reyna, the Senate has another opportunity to further increase diversity on the Federal bench. Because of his various qualifications, he has earned and received support from various organizations and individuals, including seven former chairs of the American Bar Association's Section on International Law who wrote an endorsement letter for Mr. Reyna, affirming that Mr. Reyna has the professional credentials, the experience and skills, the appropriate temperament, and the fair and sound judgment to serve on the Federal Circuit. Mr. Chairman, I would also like to put into the record a letter from Congressman Chris Van Holland from Maryland in support of Mr. Reyna's confirmation. Last, but certainly not least, Mr. Reyna is a resident of Silver Spring, Maryland and a constituent of mine. I would urge the Committee to favorably consider his nomination. I think he will make an excellent addition to the Federal bench. Senator Blumenthal. Thank you. Without objection, we will take your letter, the letter from Representative Van Holland, and insert it in the record. [The prepared statement of Representative Van Holland appears as a submission for the record.] Senator Blumenthal. Thank you for being here, both you and Senator Cornyn. Senators Webb and Warner, if you would introduce both Ms. Wright-Allen and Mr. Urbanski, magistrate judge. PRESENTATION OF ARENDA L. WRIGHT-ALLEN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA AND MICHAEL FRANCIS URBANSKI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA PRESENTED BY HON. JIM WEBB, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Webb. Thank you, Mr. Chairman and Ranking Member Grassley, Senator Klobuchar, other members of the Committee. I have a longer statement I would ask be entered into the record at this point. Senator Blumenthal. Without objection. [The prepared statement of Senator Webb appears as a submission for the record.] Senator Webb. Thank you. I am pleased to join Senator Mark Warner, my colleague, for the purpose of introducing two outstanding attorneys from Virginia, Arenda L. Wright-Allen and Judge Michael Urbanski, whom the President has nominated for seats on the U.S. District Courts for the Eastern and Western Districts of Virginia. These two individuals represent the highest degree of integrity, competence, and commitment to the rule of law, and each in their own way exemplifies the best of the Virginia bar. Whenever a vacancy has occurred on the Virginia Federal bench, Senator Warner and I have conducted a thorough and extensive review of the candidates for the vacant position. This review includes interviews, recommendations by Virginia's Bar Associations, and in-person interviews with the candidates. The candidate pool from which we had to choose this time was excellent and deep. It included judges, legal scholars, and skilled trial attorneys. Both of the candidates before you received the highest rating of the Virginia State Bar. From this very competitive field, Senator Warner and I recommended Ms. Wright-Allen and Judge Urbanski. Ms. Wright- Allen--let me say this as a former Secretary of the Navy and former Marine--I personally appreciate and understand the sacrifices that veterans have made to our country, and Ms. Wright-Allen is a veteran. She initially stood out because of her service in the Navy. She served for 5 years as an active duty JAG officer, and continued that service as a reserve JAG officer until she retired as a Commander in 2005. Her record of service there was excellent, and this extensive court experience has been valuable, I think, in her follow-on career, and also will serve her well as a Federal judge, should she be confirmed. Ms. White Allen has dedicated her civilian career to serving her community as a Federal prosecutor, and since 2005, as a Federal public defender. Unanimously, prosecutors and defenders who have worked with her on either side have attested to her talent, dedication, and above all her exceptional character. Upon meeting Ms. White Allen, it was clear to me that she possesses the judicial temperament and dedication to make an excellent judge. She is joined here today by quite a contingent, including her husband, Delroy Anthony Allen, and her son, Yanni Anthony Allen. I am sure she is going to want to introduce all those people who are with her when she is before you. I am very proud to say that our nominees for the Western District of Virginia is a product of Virginia's public universities. Judge Urbanski graduated from the College of William & Mary in 1978, and then from the University of Virginia Law School in 1981. He currently served as a magistrate judge for the Western District of Virginia. Prior to becoming a magistrate judge, he practiced in Roanoke, Virginia from 1989 to 2004, and was the head of the litigation section at the law firm of Woods & Rogers. Judge Urbanski's candidacy was overwhelmingly supported by the Bar Associations which he covers as a magistrate judge. He has a reputation for dedication, good temperament, and bringing energy to his job, which has resulted in the efficient administration of justice for many citizens in the Western District. Prior to becoming a Federal magistrate judge, Judge Urbanski earned a reputation as one of the top trial lawyers in western Virginia. I'm convinced that he embodies all of the talents to become an excellent district judge. He is joined today by his wife Ellen, his son Will, his mother Irene Urbanski, who is 87 years young, his sister Terry McGlennon, his brother-in-law John McGlennon, his nephews Andrew and Colin, and he also has a large contingent, I think, who have come here today to support him and I am sure he will introduce them at the appropriate time. So I have every confidence that the Committee will find these two very fine citizens' attorneys well qualified for the Federal bench and that we can move their nominations forward with all due haste. I, at this point, would like to yield to my colleague, Senator Mark Warner. Senator Blumenthal. Thank you, Senator. Senator Warner. PRESENTATION OF ARENDA L. WRIGHT-ALLEN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA AND MICHAEL FRANCIS URBANSKI, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA PRESENTED BY HON. MARK R. WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Warner. Thank you, Mr. Chairman. Let me thank Senator Leahy and Ranking Member Grassley for the prompt scheduling of this hearing, and I'd like to thank Senator Klobuchar for being here. I want to commend you, Mr. Chairman, Senator Blumenthal, for only being here in the Senate for 45 days, and yet already chairing a Committee. [Laughter.] Senator Blumenthal. I haven't blown it yet. [Laughter.] Senator Warner. It is a remarkable achievement. Senator Blumenthal. Thank you, Senator. Senator Warner. Let me echo. I'd like to also ask that my fuller statement be submitted for the record. Senator Blumenthal. Thank you. Without objection. [The prepared statement of Senator Warner appears as a submission for the record.] Senator Warner. Let me echo what my colleague and friend, Senator Webb, has said. I am very proud to join with our senior Senator, Jim Webb, in introducing Arenda Wright-Allen and Judge Michael Urbanski to become, respectively, the next district judges from the Eastern District and Western District of Virginia. As Senator Feinstein mentioned on her process, Senator Webb and I have a similar process where we spent a great deal of time reviewing candidates. We had the opportunity, with two positions open, to see, as Senator Webb indicated, a wide array of candidates. These two individuals, both in terms of their legal temperament, their background, and quite honestly the intangible personal skills, that I think we both agreed will be exemplary members of the Federal judiciary. We both are honored to recommend them for their appointments. As Senator Webb and others have mentioned already, Ms. Arenda Wright-Allen will be a groundbreaking nomination. She has served our country in the Armed Services as a U.S. Navy Judge Advocate General. She also, I think, will bring a unique background as someone who has served both as a prosecutor, and as a public defender, somebody who has seen our criminal justice system and our court system from both sides. I also have to say, Senator Webb and I were both taken with her strength of personal convictions and very powerful personal story as well. So, Senator Webb has gone ahead and noted her family members. I know she and Judge Urbanski are anxious to get here, as I am sure the other candidates are. But I am very proud to join with Senator Webb in her nomination. Let me also introduce as well, or re-introduce as well, Judge Michael Urbanski. You heard from Senator Webb some of his legal background. He started as a law clerk for Hon. James Turk, judge, then he served in trial bar, he served in a major firm in the Roanoke area. He has been a U.S. magistrate judge for the Western District. Since Senator Webb went through so many of his other attributes, let me just mention some of his attributes outside the courtroom. As magistrate judge, Judge Urbanski is responsible for managing all the pro se prisoner cases filed in the Western District, and working with other judges in the region, Judge Urbanski has begun participating in a pilot reentry program designed to help assist Federal felons in exiting the penitentiary system and making that appropriately difficult transition back to society. Those programs--on a personal note, I might add--were always ones that were sometimes subject to cuts, but I know in your previous tenure as attorney general as well, so often those programs provide that transition back so that we can eliminate or cut back the enormously high rates of recidivism in our system. In 2008, he went as well into our public schools, particularly in the Roanoke area, going through and working at the middle school and high school levels, making sure students were familiar with the challenges and penalties involved in drug trafficking. That program has touched the lives of more than 6,000 students. Again, like Ms. Wright-Allen, I think he will bring extensive practical experience, personal experience, and knowing many members of his family, I can vouch that he brings the right personal experience as well. So I join all of our colleagues and I hope Judge Kronstadt from California, Jimmie Reyna from Maryland, joining hopefully the Federal Court of Appeals, and these two wonderful candidates from Virginia, Ms. Wright-Allen and Judge Urbanksi, will be acted upon favorably by the Committee. My hope is, again on a personal note, with the kind of shortages that you mentioned in your--judicial shortages that you mentioned in your opening comments, that this Committee will act in a judicious manner, and quick manner on them, and that these two very qualified nominees--for that matter, all four of these nominees--if your Committee acts favorably, they can see their nominations move quickly to the floor and they can go ahead and step up and provide the kind of public service that I know all four will be able to provide. With that, Mr. Chairman, I thank you. Senator Blumenthal. Thank you very much, Senator Warner. I would like to thank you and the other Senators who have given of their time. I know how busy today is. Thank you so much for being here, and the others for their excellent introductions as well. Senator Schumer would have been here to introduce Vincent Briccetti, but he was called to the White House. I have a statement from him, which I am going to enter into the record, if there is no objection. [The prepared statement of Senator Schumer appears as a submission for the record.] Senator Blumenthal. And also a statement from Chairman Leahy, who could not be with us as well. [The prepared statement of Chairman Leahy appears as a submission for the record.] Senator Blumenthal. Vincent Briccetti has been nominated, as you know, to be a District judge for the Southern District of New York. He was born in Mt. Kisko, and he earned his B.A. at Columbia, and then his J.D. from Fordham University of Law, where he was articles editor of the Fordham Law Review. He is uniquely qualified to serve as a trial court judge because he has very extensive experience as a litigator, some years of which he spent in Connecticut, as a matter of fact--in Stanford, Connecticut--with the law firm of Paul, Hastings, Genofsky, & Walker. Since 1992, he has worked in private practice in his own firm, but he has also served as an Assistant U.S. Attorney in the Southern District of New York, and as an associate with Townley & Updike in New York, and a law clerk for Judge John Canella of the Southern District of New York. As I mentioned, I have a statement on behalf of Senator Schumer to be entered into the record in support of this nomination, and I also have--and I will enter into the record as long as there is no objection--letters from others who could not be here, including Janet DiFiori, District Attorney for the County of Westchester, in support of Mr. Briccetti, and Steven Robinson, on behalf of Vincent Briccetti, which I will enter into the record, and Bart Schwartz, also in his support. [The letters appear as a submission for the record.] Senator Blumenthal. So if we can proceed, I would like to ask, first, that Jimmie Reyna come forward and we will begin with the hearing. I am going to ask you to stand and raise your right hand. [Whereupon, the nominee was duly sworn.] Senator Blumenthal. If you would like to begin with a statement, Mr. Reyna, we would be happy to have it. STATEMENT OF JIMMIE V. REYNA, NOMINATED TO BE U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT Mr. Reyna. Yes. Thank you, Senator. It is a privilege to be here today, especially this being your first chairmanship of this committee. I thank you for the invitation, and I thank Senator Leahy and Ranking Member Grassley for scheduling this hearing and having me here to testify and participate today. Mr. Chair, if I may, I'd like to introduce the members of my family. Senator Blumenthal. Please do. Mr. Reyna. I hope I get everybody. I'd first like to introduce my wife, Dolores Ramirez Reyna. She and I, in 2 weeks, are going to celebrate our 39th anniversary. We got married when we were freshmen in college, and we've had two wonderful children. My oldest son Jimmie, is autistic and couldn't be here today with us. He's got commitments in the work that he's doing. My other son, Justin, is here. Justin is an attorney licensed in DC. My sister Paz Martinez, from New Mexico, is here. My brother Julian Reyna, my sister Lillian Chapman. I also have with me some cousins, Margie Martinez, Lita McEachern, and Danny Reyna are here. There's two individuals who are not here that I'd like to speak on, and that is my sister-in-laws, Felicita Ramirez and Michelle Reyna. Also not here--physically anyway--are my parents and my brother. My parents, as you heard from Senator Cornyn, were Baptist missionaries. My father was a migrant second-generation American born into a migrant family, and they were all migrant workers. My mother was an immigrant from Mexico. They met in a seminary in El Paso. They had five children, four of whom I introduced to you today. We were raised in a very modest environment, but very rich in love, the arts, religion, philosophy, literature. All of the children are graduates of college. We all played musical instruments at one time or the other, though some were much more accomplished than others, I being the least accomplished. But they taught us many things. My mother would often tell me--she'd look at me. Even as a child, she'd look at me and say, ``conganas, conganas'', which in Spanish means, ``with enthusiasm, with respect, with dignity''. After a while, all she had to do was look at me and nod her head at me, and I knew what she was telling me. My father, to augment family income, would often take us out to the fields. All the children here picked cotton. We've hoed cotton. We've worked in the onion fields. He taught us that all work is honorable. Throughout high school, after football practice, or debate, or speech, I would go and I always had a job. I'd go do my job after that. Then I'd go home, and my dad and I would go out together and we'd clean offices. We did that the whole time I was in high school, and part of junior high. So we talk about the American dream: it's the children that live it, it's the parents that dream it. I have no further statement, Mr. Chairman. I'm open for questions. Senator Blumenthal. Thank you very much. I want to welcome you personally to the Committee and really commend and thank you for that extraordinary personal story, your professional achievements, which are so impressive, and your willingness to serve--indeed, all the nominees' willingness to serve--in this very challenging and profoundly significant role as a member of the bench. Let me begin by asking you whether you would please describe for this Committee how you see as different the role of advocate, which you have been, and the role of judge. Mr. Reyna. Yes, Senator. Thank you for the question, because it applies directly to me, having been a private practitioner going, if confirmed, to the bench. A lawyer is an advocate and a lawyer gathers evidence, facts, witnesses, information, and prepares all that information to present a singular view. That view is either to attack or defend clients' interests, to advance, perhaps to give counsel on, say, an investment on an adoption. So an attorney is an advocate and is zealous in that advocacy. A judge, on the other hand, has no personal point of view as to points of litigation. I believe that a judge, at the courthouse door, checks personal feelings and personal biases, or perhaps an idea that a judge may have about a particular issue that is involved in the litigation or the case. I think that the role of a judge is to be unbiased, to be objective, and to apply the applicable law to the facts and to be just in his or her work. Senator Blumenthal. Thank you. We've heard, and clearly you have had, a very significant experience in international law. I wonder if you could describe for the Committee how that experience would be of benefit to you in the role that you would have. Mr. Reyna. As we heard from Senator Grassley, and also Senator Cornyn and Senator Cardin, the jurisdiction of the Court of Appeals for the Federal Circuit includes international trade appeals that are taken up from the Court of International Trade in New York, and cases that also come up out of the U.S. International Trade Commission. In the past 23 years I have specialized in international trade and all aspects of international trade, I think that my work on antidumping cases, countervailing duty cases, Customs cases, investment, all laws and regulations that affect the cross-border movement of goods, services and individuals, I think that that experience will serve me well on the Federal Circuit and will bring valuable experience to the court. Senator Blumenthal. Thank you. You know, there has been some reference here about the importance of diversity on the bench. I know that you have worked for diversity, particularly in bringing the Hispanic community into the Bar. I wonder if you could reflect for the Committee what more can, and should, be done to increase the diversity of the Bar, and perhaps even what you might do as a role model, but also in other ways as a member of the bench. Mr. Reyna. I've been involved in diversity issues, I guess, since college and then through law school. Within the past decade or so, I've been involved in diversity issues and the judiciary, unbeknownst at that time that I would be sitting here before you today. I think that diversity on the judiciary is extremely important and I think it's vital to our judiciary and our system of justice. I think what can be done more, is part of the work that I did, I undertook as president of the Hispanic National Bar Association and the work that I did within the American Bar Association, and that is to help repair excellent practitioners of all walks of life so that they may be prepared to someday be judges. Senator Blumenthal. And finally, if you could tell us a little bit about the pro bono work that you've done. There's been some mention of it by Senators Cornyn and Cardin, and Senator Grassley. I wonder if you could describe in a little bit more detail what you've done by way of pro bono work. Mr. Reyna. As a solo practitioner in Albuquerque, New Mexico, I found out that there is no end of pro bono clients. If you open your door, a line will form of individuals that need legal help but cannot pay for it. I undertook quite a bit, maybe a little bit more than I could have afforded, but I took on a lot of pro bono work at that time. Most recently, the Court of International Trade has commended me three different times for taking on pro bono cases that I've been requested by the court to handle, and the representation, for example, 53 women in Pennsylvania who lost their work because of the closing of the factory due to the production being moved abroad under the Trade Adjustment Act and laws of the United States. So I've devoted a lot of time, a lot of my energy and career toward pro bono work. Senator Blumenthal. Thank you. I'm going to yield to Senator Grassley. Senator Grassley. Yes. I'm going to touch on this issue of whistle-blowers that the court has jurisdiction of. I know you might not have a lot of experience in that area, but you're going to be called upon to make some decisions. As a person that sponsored whistle-blower legislation back to 1989, and I have a great faith in most whistle-blowers helping make government more transparent and accountable, and consequently a source of information sometimes to make sure that government is doing what it's supposed to do. I noticed that throughout the history of the Federal Circuit being involved in whistle-blower cases, they decided 219 cases involving the Federal Government whistle-blowers and it found in favor of the whistle-blowers in only 3 of those cases. I'm not condemning or making any judgment based on it, except it just seems a little bit far-fetched that whistle- blowers will only win in 3 out of 219 cases. But anyway, one of the things that I want to ask a question about is a standard that they set in the LaChance v. White case in 1999. In that case, the Federal Circuit held that a whistle- blower had to present irrefragable proof--I-R-R-E-F-R-A-G-A-B- L-E--that wrongdoing actually occurred in order to prove the claim. Senator Klobuchar. They use that term all the time in Iowa. Is that right, Senator Grassley? [Laughter.] Senator Grassley. I was about to say the opposite. [Laughter.] Senator Grassley. It's a whole new standard that I haven't seen anyplace else. I think I know what they mean. So to get to some discussion with you, in reviewing your questionnaire it appears that you've had little, if any, experience with whistle-blower law or any Federal personnel law. Considering that the Federal Circuit has exclusive jurisdiction over these cases, what, if any, experience do you have with the whistle-blower protection law? Mr. Reyna. Thank you, Senator. I think one of the best-kept secrets in U.S. law, that you've been a champion of whistle- blowers for so long. The whistle-blower laws that we have in place are a direct part of the work that you've done, and I think the country owes you gratitude for that. That said, if confirmed, as a judge on the Federal Circuit, I would approach every whistle-blower case that would come before me with utmost importance, and I would apply the law, the applicable law, to the facts. I would see to arrive at a just and a very expedient decision. I say ``expedient'' because we're talking about American workers and we're talking about workers that have given their time and energy and work for the Federal Government. It's important that their matters be resolved quickly. Now, as to the standard that you just articulated, that is a new word to me, too. In New Mexico, we do not have that word as well. [Laughter.] Mr. Reyna. However, I will, as a judge on the Federal Circuit, apply the precedent that exists when reviewing whistle-blower cases, and I will also apply the law that exists within the whistle-blower statutes. I can confirm this to you, Senator, that in the cases that I adjudicate, I will seek to provide clarity and guidance for future litigants and for our American workers in the government. Senator Grassley. OK. In the inaugural issue of the Hispanic National Bar Association Journal of Law and Policies, I quote you: ``We often hear that the U.S. Constitution is a living document, and as attorneys we recognize that the law can both lag behind social development and accelerate change.'' Do you personally believe the Constitution is a living document, and if so, what does it mean for the Constitution to be a living document? Senator Grassley. Thank you, Senator. The quote that you read, I wrote as the senior editor of the Hispanic Bar Association Journal of Law and Policy. I'm the senior editor of that and I helped found that journal. I wrote that and I said we often hear--and we do. We hear many people claim that the Constitution is a living document, and we hear many different attributes made and labels placed on the Constitution. What I was doing in that editorial comment, is I was calling attention and calling to action the purpose of the journal, and that is to serve as a catalyst for an exchange of legal ideas so that lawyers, legal scholars, regulators, and academics could gather together and have a free-flow exchange of ideas. So I was advocating, and I was advocating as an editor when I wrote those words. If confirmed as a judge on the Federal Circuit, I will not be an advocate and I would decide cases in an impartial and objective manner. As to the term ``living'', what that means--living Constitution, I believe that the Constitution stands on its own text. I think that the Constitution says what it says, and I believe that, as a result of that, over the 200 years of the history of our country, the Supreme Court has built a case of precedent, and there's been case law that has developed over time. If confirmed, I will--and cases come before me. And if those cases involved constitutional issues, the constitutionality of a statute, I will first apply the precedent, then I will apply the text, and then I will apply the law, or perhaps even look at the purpose of the originators of the Constitution. But at all times I will approach every matter involving the constitutionality of any statute with the utmost seriousness and I will confine any opinion I'm involved in to the breadth of the statute and to the breadth of the issues that are before us in a very confined, narrow sense. Senator Grassley. Thank you, Mr. Chairman. Senator Blumenthal. Thank you, Senator Grassley. Senator Klobuchar. Senator Klobuchar. Thank you very much, Chairman Blumenthal and Senator Grassley, for holding this hearing. We're glad, by the way, Senator Blumenthal, that you're on this Committee. Senator Blumenthal. Thank you. Senator Klobuchar. And I want to thank all of our nominees for being here. You all have such impressive backgrounds. I was fortunate enough to be introduced to Mr. Reyna last year by Peter Reyes, who is an intellectual property lawyer at Cargill in Minnesota. I think you know you have many friends in our State. Mr. Reyna. Yes. Senator Klobuchar. So we're glad you're here today. I just, as someone who came who was in private practice like yourself for quite awhile--I was in it, I think, for 14 years, and you were in it for 30 years. Is that correct, Mr. Reyna? Mr. Reyna. Yes. I've always been in private practice. Senator Klobuchar. Could you talk about how you expect that to be a useful experience on the bench, having come from the private sector? Mr. Reyna. Yes. In fact, Senator--and thank you for the question--my legal career has been very diverse. I've handled a lot of different types of cases. One of my most memorable cases is an adoption, for example, where afterwards when the court approved the adoption, a very simple, basic legal procedure, out in the hallway the family surrounded me and cried. That case gave me an understanding of the power in the law, the power to bind families. Since then, I've also represented large corporations. I've represented a whole broad range of clients. I think that being a private practitioner appearing before courts gives me a very unique perspective. I understand what it is private practitioners want, what they seek when they appear before a court. They seek a just and a very speedy resolution. If confirmed, one of the things that I'll work for, Senator Klobuchar, is to ensure that I give respect to all the litigants, give them all an opportunity to be heard, and that I will work to have an expedient resolution. Senator Klobuchar. Very good. And I know that Senator Blumenthal asked you, and Senator Grassley also mentioned your experience as head of the National Hispanic Bar, which I think you said you were president from 2006 to 2007, and you talked a little bit with Senator Blumenthal about the diversity issues. But what in that experience, as well as your experience in the private sector, has led you to think what is the greatest challenge that the Federal courts are facing? I'm going to be taking over the Subcommittee on courts in this Committee with Senator Grassley. I was just curious, just from your perspective as a leader in the National Bar, as well as your work before the courts, what you see as the biggest challenge as we move ahead. Mr. Reyna. Thank you, Senator. I believe that there are many--or a good number--of very significant challenges facing the judiciary. One of them I will address, since you alluded to it, is diversity. I think that diversification of diversity in the judiciary is extremely important. I started working on this particular issue in conjunction with work I was doing with the Sandra Day O'Connor initiative on a fair and impartial judiciary. I also believe that the judiciary must arrive at more expedient resolutions. It's taken a long time for the litigants to get a case decided. Litigants--and I say this as a private practitioner--represent clients whose businesses often could be at peril or depend on the outcome of a case. The community, the legal community and society as a whole, depends very much on the guidance that courts give when they render a decision. So those are two factors that I think are important challenges to the judiciary. Senator Klobuchar. Two challenges we also have in the U.S. Senate, I could add. Not that it's taking too long to do the nominations process. But my last question just would be, you did such a beautiful job of talking about your family and your parents and what they meant to you, and you talked about your mother's advice about showing respect and showing enthusiasm for what you do. But what do you think will be your biggest thing that you remember from the advice from your parents and your background that you'll take to the bench in terms of your own background, and what has that meant to you as a judge? Mr. Reyna. Again, I grew up in a religious household. The faith that my parents had exists in all the children and everybody behind me. I think with that comes with having respect and dignity to everyone that you deal with. Yesterday, I was walking down the street on 16th Street and the doorman of a building called me over and introduced me to his sister. What he said is, this man, I don't know his name, but he's been walking past this door for the past 20 years and we've been saying hi to each other, and I want you to meet my sister. He introduced us. The reason that happened is because it's true, I would walk by there and for the past 20 years, I see him standing there and we say hi. He says hi and he's looking at me. I think that springs from my parents, the value that every human being has within them the capacity to give respect to others, but more than that, that we all merit the respect and dignity of each other, whether we do this in government, whether we do this in our family lives, or whether we do this on our own. Senator Klobuchar. Thank you very much. Mr. Reyna. Thank you. Senator Blumenthal. Thank you, Senator Klobuchar. I believe there are no further questions of Mr. Reyna, so thank you very much for being here today. We're going to move on to the second panel. Again, thank you to you and your family. Mr. Reyna. Thank you, Mr. Chairman. Senator Blumenthal. Congratulations on your anniversary. Mr. Reyna. Thank you very much. Senator Blumenthal. If you would please come forward, and your name tags will indicate the order in which you are to speak. If you would raise your right hand. [Whereupon, the nominees were duly sworn.] [The biographical Information follows.]
Senator Blumenthal. Please be seated. If we could go in order. Perhaps we will begin with Judge Kronstadt, if you have an opening statement. STATEMENT OF JOHN A. KRONSTADT, NOMINATED TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA Judge Kronstadt. Good afternoon. Thank you very much, Senator Blumenthal and Senator Grassley, for seeing us today-- seeing me today. I'm honored to be here. I also wish to thank President Obama for placing my name before the Senate, and wish to thank Senator Feinstein for speaking on my behalf today with her very generous remarks. If I may, I have some family and friends present whom I'd like to introduce. Senator Blumenthal. And I should just interrupt you to say, if any of your families would like to move to the chairs that have now been opened, you should feel welcome to do so, or you can stay where you are, whichever you'd prefer. I'm sorry to interrupt. Go ahead. Judge Kronstadt. No. Thank you. With me today is my wife, Judge Helen Bendix of the Los Angeles County Superior Court, who was mentioned earlier by Senator Feinstein. I can assure you that without Judge Bendix, my wife, I would not be here today. We were college mates, we were law school classmates, and we've been life mates a little more than 36 years. I think that says it all. I would definitely not be here without her support. Also present, and we're very proud of each of our children. All three of our children have traveled to Washington today from various points in the United States, and we're pleased and thrilled they're all here: our daughter Jessica, a lawyer in Los Angeles; our son Eric, who's a graduate student in California; and our daughter Nicola, who's an undergraduate student here on the East Coast, all have made the trip. And again, I thank you all for coming. I'm honored. You've made our lives far richer. Also here are some other family members, my cousins, Nancy Kronstadt, Denise Kronstadt. Denise has traveled from New York and Nancy lives here in Washington. I'm grateful for their being here, as they are reminders of the wonderful generation before ours who guided us through our lives. Also present are some good friends, Mike Klein, Joan Fabry. I'm grateful for their support today. Jeffrey Kaplan, a law school classmate of my wife's and mine, is also here. I'm grateful for that. Allison Teeter is present, and her husband Glen. Allison is a close family member. I'm grateful for her traveling several hours today from West Virginia to be here. There are also some who are not here, who couldn't be here. My sisters are not here. I wish they had been here, but they're not able to be here today. My aunts, who are both the links to my parents--my father's sister and my mother's sister are here in my mind, and may be watching on the webcast; I hope so. I'm grateful for them and their support. And I'm also reminded, based on some earlier comments of some others, obviously, who are my parents, neither of whom is alive today. But obviously without them I would not be here. Each was the child of immigrants, each was the first person in his or her family to go to college, and each contributed to the life that I've led. My mother, who died more than a half century ago, adhered to the view that whatever you start, finish in style. That's an adage that I've tried to follow and I've tried to pass on to our children. My father, who raised the three of us as a single parent for much of our lives, or growing up lives, was a very accomplished and terrific professional and a wonderful father. So I think of them too, because without them I certainly would not be here today. So I'm very grateful, and thank you very much. Senator Blumenthal. Thank you. Mr. Briccetti. Judge Kronstadt. Oh, excuse me. I missed--I overlooked someone. My daughter Jessica's friend, Will Turner, also traveled from afar to be here. I apologize. [Laughter.] Senator Blumenthal. Thank you. Mr. Briccetti. [The biographical Information follows.]
STATEMENT OF VINCENT L. BRICCETTI, NOMINATED TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Mr. Briccetti. Thank you, Mr. Chairman. I, too, would like to express my thank you to President Obama for nominating me to this position and showing confidence in me. I'd like to thank Senator Schumer for recommending me to the President, and for his remarks which I understand are included in the written record. I also thank Senator Gillebrand for her support as well. If I may introduce my friends and family that are there, Mr. Chairman. First of all, my wife Grace, of 32 years, a not only wonderful, but extremely wise woman who has put up with me for all these years. That maybe wasn't so wise, but in any event, she's here. Two of our three adult children are here. My oldest child, Christi, is here. She's a very hardworking young lawyer in New York City and managed to sneak out of the office for the day and come down to Washington for this hearing. My youngest child, Tom, is here. He's a senior at Syracuse University and made the trip as well, and I'm just incredibly delighted that he did that. My middle child, my third child, is not here. That's Leslie. She's not here because she's serving her country as a Peace Corps volunteer in Central America, where she has completed almost 2 years of service, has a few more months to go. Leslie told me that she's going to try to make her way to an Internet connection--she doesn't have one where she lives-- and watch the webcast. So if she's watching, we miss you, Les. Also present today is my mother, Emanuela Briccetti, to whom I owe everything. I'm not sure what else I could say. She is a member of the greatest generation, a nurse, and worked for many years with the Postal Service. I'm just incredibly pleased that she could be here today. My brother Mario has made his way here from his home in Indiana. He's my big brother, so he thinks that he's the person to whom I owe everything, but actually it's my mother. But I am delighted that Mario is here. And my sister Louisa, who lives in Manhattan with her family, is here with her family, her husband, my brother-in-law, Jonathan Brill, and their children Caroline and Ken Brill. Caroline actually had the shortest trip because she's a college student here in Washington. I found out about 5 minutes before the hearing began that my father-in-law, Bob Merritt from South Hadley, Massachusetts, is here. He does have a bit of a sense of humor and didn't bother to tell anybody that he was coming. It's true. He's a World War II veteran and another member of the greatest generation, and I'm incredibly touched that he's here. My mother-in-law, Pat Merritt, unfortunately is not here because she's a little bit under the weather, but my in-laws have been wonderful to me from the moment I met their beautiful daughter. I'm just thrilled that Bob, at least, is here. I know Pat is watching. Finally, I think--I hope I didn't leave anybody else. But finally, my very dear friend of more than 30 years, Ruth Raisfeld, is here. Ruth and I were classmates at Fordham Law School. We were co-editors of the Law Review. She's been an amazing loyal and wonderful friend for many years and she is here today. I'm just so delighted that she's here. I would like to mention one person who's not physically present, which is my dad, Angelo Briccetti. My dad is--both my parents were children of Italian immigrants. My dad is, and has always been, my greatest role model and will continue to be for as long as I live. He learned to speak English when he went to school. He didn't know it before that. Although he was an A student, when he was a senior in high school his dad, my grandfather, fell on the ice and broke his arm and so he couldn't cut meat anymore, and they were in the meat business, so he turned to his son, my father, and said, OK, no more school, you've got to work with me, and he did. He didn't finish school. I've seen his transcript, so I know he was an A student. What my father has taught me, and my mother as well--I was going to say, my father was the quintessential working man. He worked, well, 7 days a week for my entire growing up. Every other Tuesday afternoon he would take off and his brother would take the other every other Tuesday afternoon off. That's a very great example to set for one's children and grandchildren. And my mother as well has always worked. What I learned from them is the value of hard work and the necessity of being determined. So I'm delighted that my mother is here, and I certainly feel my father's presence as well. Thank you. Senator Blumenthal. Thank you, Mr. Briccetti. Ms. Wright-Allen. [The biographical information follows.]
STATEMENT OF ARENDA L. WRIGHT-ALLEN, NOMINATED TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA Ms. Wright-Allen. Thank you, Senator, Senator Grassley. I want to thank you both again for allowing me to be here this afternoon. I first have to thank God, because it's clear to me that if it weren't for him I would not be here. I'd also like to thank Senator Warner and Senator Webb and the members of their staff. It was an honor and I enjoyed the process. I also want to thank President Obama and his staff, and I enjoyed that process as well. There are several family members and dear friends that are with me in spirit, even though they're not here physically. First, would be my father, Reuben E. Wright. He's deceased, but he's in heaven and there's no doubt in my mind he's with me this afternoon. My mother. Her name is Jewel Wright, and she's in Philadelphia and she's caring for my stepfather, Roger Wilson, who is 90 years old. So they're not here with me physically, but in spirit they are. I'd also like to thank my in-laws, and they're either in Jamaica, England, Florida or New York. They're all pretty old, but they're rich people and I love them. So I want to thank them for all the support that they've given me throughout my 23 years of marriage. I'd also like to thank the Assistant U.S. Attorneys in the Western District of Virginia, as well as in the Eastern District of Virginia. That would be from 1990 until December of 2005. They know who they are, and they are part of my family and they are my friends. But for their friendship and leadership, I wouldn't be sitting here today as well. And I'd also like to thank all the Federal agents that I worked with since 1990, and they know who they are as well. I'd like to thank Frank Dunham. He's deceased and he's in heaven now, but he's the first Federal public defender for the Eastern District of Virginia, and he's the one that rekindled my interest to do defense work when he opened up the office, so I'd like to thank Frank Dunham. Then my current supervisor, Michael Nackmenoff. He sits in Alexandria, Virginia and I'd like to thank him, as well as all my colleagues down in the Norfolk Federal Public Defenders Office. I'd like to thank my church, First Presbyterian Church of Norfolk, as well as my neighbors on Bonitop Garden, and then also a dear friend, Walt Kelly. Senator, if I may, I have some family and friends that are present with me physically. First, is my son Yanni. He's probably a young African-American boy, 14 years, in the audience. He's right there in the blue shirt. He's 14. He goes to Norfolk Christian, and he's quite the accomplished drummer. We named him after a musician, Yanni, who's a Greek musician that my husband and I followed, because of his diverse band and his diverse orchestra, for about 30 years. Also, there's a seat here for my other child, Niall Anthony Allen. I have to say, it was so wonderful to be here this afternoon and hear the word ``autism'' three times from three different people. So, Niall is 11. He cannot be with us this afternoon because he's autistic, but his unconditional great gift of love is present with me this afternoon, so I'm introducing everyone to him as well. My husband Delroy is sitting right there in the blue and green-striped shirt. I met him when I was 17 years old at Jacksonville University down in Jacksonville, Florida, and we were pen pals for 12 years before we dated for 2 months, and then married for 7 years before we had our two children. So he is a friend, then a brother, then my boyfriend, my husband, and now the perfect father of my two children. He left the employment field 12 years ago when Niall was diagnosed with autism to take care of my two boys, and he's the love of my life. So, thank you for being here. Also, Rob Seidel is the gentleman that's waving there, and he is my friend, but I met him as a mentor at the U.S. Attorney's Office in the Eastern District of Virginia back in 1990 when I joined that office. So it's Rob who taught me to respect the law and understand the law and to work hard, and I never wanted to disappoint him. So I would always do that before I would go to him for questions, and there's no question that I wouldn't be here if it weren't for him. Jannie Bazemore is the second lady back behind me in the black suit with a blue blouse. She's been working as a public servant in the Civil Rights Department first, then with the U.S. Attorney's Office for 42 years now, and she's a lawyer's lawyer and a dear friend and so I'd like to recognize her. My pastor is here, James Wood, the guy with the white hair and tanned. He's my dear friend, and next to my husband, probably the closest man in my life. Mr. James Metcalfe is here. He's a retired Assistant U.S. Attorney for 30 years, and he also is a retired Naval Captain, 30 years, and he's a workhorse. He retired last year from the U.S. Attorney's Office after 30 years, and he still goes back in to the office as an unpaid Special Assistant U.S. Attorney to do the people's work. So, thank you, Mr. Metcalfe, for being here. John Pearson is right there in the light purple tie, and he's a friend from the church. He just retired last May after serving 30 years at Wilcox & Savage. We're in a small group together. Then last but not least, is Chuck Rosenberg. Chuck is a friend of mine. When I was pregnant, his wife loaned me her maternity clothes. He was an Assistant U.S. Attorney. He rose to the ranks to be the U.S. Attorney for the Eastern District of Virginia, and he's currently in private practice. Those are all the folks that I'd like to introduce to you, and I have no other statement to make. Senator Blumenthal. Thank you very much. Ms. Wright-Allen. Thank you. [The biographical information follows.]
Senator Blumenthal. Judge Urbanski. STATEMENT OF MICHAEL FRANCIS URBANSKI, NOMINATED TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA Judge Urbanski. Thank you, Senator Blumenthal, Ranking Member Senator Grassley, for convening this hearing and for considering this nomination. I'd like to thank Senators Webb and Warner for their kind introduction and for the courtesy and consideration their staff and they have shown me throughout this process. I appreciate the confidence that the President has shown in me in this nomination. Before I introduce the many folks I have with me, I'm mindful of those who have come before me. Both of my grandfathers came over on a boat and were coal miners in eastern Pennsylvania for their whole lives. My dad was a career Army officer, served in World War II in China. My mother-in- law, Jane Givens, school teacher and town council person. Both my dad and my mother-in-law taught me the importance of public service and duty. I have here with me a few folks I'd like to introduce. First and foremost, and I'd like them to come forward and sit behind me, is my wife Ellen, of 28 years, is my best friend, the love of my life, and she keeps my grounded. My son Will is here. Will is a computer security analyst at Virginia Tech, and a graduate student. He is here with me today. My daughter Sarah could not be here with us. My daughter Sarah is a senior education major at Emery & Henry College. She is doing something today that I daresay is a daunting proposition: she's doing a student teaching practicum at a middle school in southwestern Virginia. So, hello, Sarah. I hope you're watching us. My mom is here. My mom is 87 years old, Irene Urbanski. There she is. She's told me about five times today that my dad would be proud of me. Well, I'm proud of my mom and she has taught me the duty of hard work and service. My sister Terry is here, Terry MacGlennon. She's a public school teacher. My brother-in-law, John MacGlennon, is the Chairman of the Department of Government at the College of William and Mary. He has told me he's going to grade me after this session here today. Their two sons, Andrew and Colin, are also here. They're both at William & Mary in college. I have five present and former law clerks with me. We had lunch before this session. I have to tell you, they gave me a lot of grief. They're justifiably proud of that. I have my career law clerk, Kristin Johnson, who is a tremendous asset to me. She's here. Kristin, if you would stand up. [Laughter.] Mr. Urbanski. Mike Showalter, who was my law clerk, practices law in Chicago. He flew in for this today. Thank you, Mike. Stacy Bordick, my law clerk, and her husband Chet who's here today as well. Stacy practices in Fredericksburg. Thank you, Stacy. Usri Omar practices down the street with a law firm here in Washington. Thank you, Usri. And Ern Ashwell practices with a law firm in Roanoke. She is also here as well. My court team, the two deputy clerks who I work with every single day, Becky Mills and Kristin Airsman, took a day off from work, took the train up here from Roanoke, and are here with me today to give me support. I rely on them every day and I'm grateful for their support. A good friend of ours, Mary Kingsley. An old friend, an old neighbor, is here to support me as well. We had dinner last night and I thank her for being here. Last but not least, my judicial assistant, Sue DePugh, could not be here today. Sue has been with me for 27 years. She has put up with me from a young lawyer to an older lawyer, and she has taught me so much about being a person, and a lawyer, and now a judge. Sue can't be here, her husband is recovering from hip surgery, but I wanted to acknowledge her and give her credit for all she has done for me. Thank you, Senator. Senator Blumenthal. Thank you. Thank you to each of you for those very compelling stories and for the pride and gratitude that you have for your families and loved ones and friends. I'm certainly impressed as I listen to you. [The biographical information follows.]
I have just a few questions, and then we'll turn to Senator Grassley. First, to Judge Kronstadt, as you know, your jurisdiction on the U.S. District Court would be criminal as well as civil. I believe that your authority now is primarily, if not exclusively, civil. I wonder if you could tell us a little bit about how you would prepare yourself in how you see your past experience as being relevant and important to being on the U.S. District Court. Judge Kronstadt. Thank you, Senator. During the first, about one year that I was a judge in the Los Angeles County Superior Court, I oversaw criminal cases, I oversaw preliminary hearings, I oversaw criminal trials and misdemeanors. I oversaw a number of criminal-related motions, both pre-trial, during time, and post-trial. I handled search warrants, probable cause determinations, and other things. Now, during that time it as a learning experience. I had to work hard to learn the areas with which I was not familiar. I think I would apply exactly the same energy and approach to the criminal issues that will come before me, if confirmed. I'll work hard. I'll learn what I don't know and try to master that area. Senator Blumenthal. Thank you. Mr. Briccetti, you've made some comments, I believe, about Federal sentencing guidelines. I wonder if you could tell the Committee what your role was in making those comments and how you feel about the current sentencing process. Mr. Briccetti. Thank you for the question, Senator. I think I failed to thank the Chairman and the Ranking Member for holding the hearing and allowing me to appear when I was thanking various people. Sentencing guidelines. Well, I've had a lot of experience with the sentencing guidelines since really the moment they were enacted back in the 1980s, and they were litigated for a while and then eventually the Supreme Court, in the Mistretta case in 1989 determined that the guidelines were constitutional. At the time I was Deputy Chief Appellate Attorney at the U.S. Attorney's Office, and the U.S. Attorney at the time asked me if I would be the point man within the office to essentially figure out how these things work and teach the other attorneys in the office about it. So I've had a lot of experience with them. Of course they've changed over the years, and the biggest change that's occurred occurred in 2005, about 5 years ago exactly, because I think it was February of 2005 when the Supreme Court decided that the Booker case, which basically concluded that the guidelines were constitutional, but that they should no longer be mandatory. In other words, once a guideline range was determined, a District judge would have to consider the guideline, but would also have some measure of discretion to impose a sentence outside the guideline range. I have spoken on more than one CLE panel about the guidelines. I think it was in 2002, I was invited by the Second Circuit Judicial Conference to sit on a panel, and there were several judges, including the then-chairman of the Sentencing Commission, Judge Sessions from Vermont was on that panel. One of the things that Judge Newman from the Second Circuit, who chaired the panel, wanted to know--because he said the members of the audience, which were all judges, wanted to know--they wanted to know about whether there were times when sentencing judges were not being given all the facts relating to sentencing. The members of the panel, including myself, generally agreed that that was true from time to time. Again, at the time the guidelines were mandatory and, therefore, by definition, somewhat rigid. Most lawyers, in my experience--not just defense lawyers, but prosecutors, including when I was a prosecutor--want to try and negotiate pleas in most cases, and because of the rigidity of the mandatory guidelines, it made it difficult to do that. So what would happen, is that both sides would negotiate in good faith--there's no bad faith involved, not in my experience, anyway--and agree on certain facts. That did have the tendency from time to time to perhaps keep some of the relevant facts--arguably relevant facts, I suppose--from the sentencing court. But it was done by both prosecutors and defense lawyers in not all cases, in some cases, in order to achieve a just outcome, an outcome that was agreed upon by both sides, and also agreed upon by the judge. So I did make comments along those lines at that time which were generally agreed with by the assembled judges and attendants. The relevance of Booker, of course, is that Booker changes that whole rubric in the sense that they're no longer mandatory. Now, I've always thought the guidelines were good in the sense that they were guidelines and that they would tend to reduce the disparity amongst sentences for similarly situated defendants, no matter which judge imposed sentence or where in the country that sentence was imposed. Under Booker, that goal of the guidelines is definitely still in effect, because now what has to happen is that judges have to first consider or calculate the applicable guideline, then they have to determine, under the guidelines, whether there's an upward or a downward departure, and then finally they have to apply the factors set forth in the statute--passed by Congress, of course--Title 18, Section 3553(a) of the U.S. Code, which lists a number of very specific factors that a judge is required to consider in ultimately determining the final sentence. I believe that that is the way the system now works, and of course that is different from how it worked before. There is at least some measure of flexibility, although at the same time most judges--and if I were so fortunate to be confirmed, certainly I--would greatly defer to the guideline range, because after all those guidelines were promulgated by the Sentencing Commission, which is essentially a panel of experts that take into consideration data about cases and sentences from all over the country and try to come up with consensus ranges for particular offenses and particular defendants. Therefore, those guidelines deserve great respect, but at the same time, as the Supreme Court has said, and this is precedent that certainly I would, if confirmed, would be bound by, has said that the District Court, the sentencing court, would have the ability to impose a sentence outside the guidelines if that was compelled by the circumstances, by the factors set forth in Section 3553(a). Senator Blumenthal. Thank you. Ms. Wright-Allen, first of all, thank you for your service to our Nation as a member of the U.S. Navy and the U.S. Navy Reserve in the Judge Advocate General Corps. You've had a very impressive career as both a Federal prosecutor and a Federal public defender, obviously as an advocate, as a litigator. I wonder if you could tell us how you view that role as different from the one that you would have as a member of the U.S. District Court. Ms. Wright-Allen. Thanks, Yanni. Yanni keeps me straight. Thank you for your question. I think, if I'm fortunate enough to be a Federal District Court judge, I think my role is different in that I wouldn't be fighting for any of the litigants or their positions. But my sole role would be to review their pleadings, review their facts, understand their positions, and then to look to the law, the Supreme Court for its Circuit, and then the decisions of my fellow brothers and sisters down in Norfolk on the Federal bench. Senator Blumenthal. And do you think your past experience would be useful to you on the bench, and if so, how? Ms. Wright-Allen. I think it's been very useful, sir. I've been in front of Federal judges my entire career in the Navy, commanders and captains, in the Western District, those Federal judges that were there for my 18-month tenure, and then here in the Eastern District of Virginia, both as a prosecutor and a defense attorney. So I've been watching them and I write down what they say, and I study it and keep it in my back pocket. So I say yes, I think the transition would be very smooth. I, if given the opportunity, plan to behave in a way that's consistent with the judges down in Norfolk and follow the precedent that's in place. Senator Blumenthal. Thank you. Magistrate Judge Urbanski, you've had extensive experience in the Federal courts, and also experience as a litigator. I wonder if you could tell us how the roles of magistrate judge and U.S. District Court judge are different, and perhaps how the appointment of magistrate judges might relieve some of the backlog and burden on the U.S. District Court. Mr. Urbanski. Thank you for that question, Senator Blumenthal. It has been my privilege to be a magistrate judge in the Western District of Virginia for seven years. During that period of time I have held thousands of hearings in civil and criminal cases, written 400 opinions, roughly, mediated hundreds of cases, and it is also important to note that I work for six district judges. I have had the opportunity to work closely with them, to watch them, to learn from them. The magistrate judge track I've been on and the work I've been doing is very much a valuable learning experience for the District Court bench and a proving ground for the District Court bench. The things that I can't do now that a District Court judge can do are, the magistrate judge does not have statutory authority to do injunctions. The magistrate judge does not have statutory authority to do felony trials. I can do civil trials, but only on consent. The District judges have that as a matter of right. Those are the principal differences. I think one way that the District Courts can use magistrate judges, and one thing we have done a lot in the Western District of Virginia, is to use the magistrate judges to mediate cases. I've mediated 300 or 400 cases. It is a very timely, expeditious, and cost-effective way to resolve disputes between parties. Thank you. Senator Blumenthal. Thank you very much. I'm going to yield to Senator Grassley. Senator Grassley. Mr. Briccetti, I was going to lead with the same question on sentencing, but since you've covered that well I will ask you one question that deals with the issue of terrorism. You represented James Curmidy in a terrorist plot to blow up synagogues in New York City. The FBI learned of a plot through an informant. You argued that the FBI and its informant entrapped the defendant. Detecting and preventing acts of terrorism remain the highest priority of the Federal Government. These threats are not likely to subside in the near term. One area in which Congress and the executive branch continue to disagree is where terrorists should be tried, whether civilian courts or military commissions. The administration has put forth a protocol that includes a presumption that terrorist cases should be tried in Article 3 courts. Do you support the use of military commissions to prosecute terrorists? Mr. Briccetti. Thank you for the question, Senator. Honestly, I don't have an opinion on that one way or the other. It seems to me that's a quintessential policymaker decision. In other words, the elected representatives, the Congress and President would have to make that decision. Therefore, I really don't have an opinion. Senator Grassley. I could ask you whether you believe that trials in military commissions violate any constitutional rights that people have. If so, which amendments would they apply to? Mr. Briccetti. Well, thank you for the question, Senator. Again, although I am certainly aware that the Supreme Court has spoken I think four times in the last 10 years on issues related to the ones you've just discussed, I am not an expert in that area and I really don't have an opinion about it. All I could say is that if I were confirmed, and if I had a case in front of me which implicated some of those decisions by the Supreme Court, I absolutely would be bound by them and follow them and would take my role as a District judge very seriously, namely that I am bound by precedent from the Supreme Court and from, in my case, the Second Circuit Court of Appeals. Senator Grassley. I think I will submit the rest of my questions for answer in writing. Senator Blumenthal. Thank you, Senator Grassley. I understand Senator Grassley will be submitting the remainder of his questions in writing. I have no further questions, and so this Committee will conclude this hearing. Again, I want to thank all the nominees, their families, friends, loved ones for being here today. This has been a very informative and important hearing. I know I speak for the Committee, and especially for Senator Leahy as chairman, in thanking you all for being here today, coming, some of you, very long distances. But it's been well worth it. Thank you very, very much. I'm going to say, finally, that we're going to hold the record open for additional questions like Senator Grassley's that will be submitted to you in writing. Thank you. [Whereupon, at 4:40 p.m., the hearing was adjourned.] [Questions and answers and submissions for the record follow.]
NOMINATION OF BERNICE BOUIE DONALD, OF TENNESSEE, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; J. PAUL OETKEN, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; PAUL A. ENGELMAYER, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; AND RAMONA VILLAGOMEZ MANGLONA, OF THE NORTHERN MARIANA ISLANDS, NOMINEE TO BE JUDGE FOR THE DISTRICT COURT OF THE NORTHERN MARIANA ISLANDS ---------- WEDNESDAY, MARCH 16, 2011 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:28 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Charles E. Schumer, presiding. Present: Senators Schumer, Coons, and Grassley. OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Good afternoon, everybody, and we are 2 minutes ahead of schedule, which, as Senator Alexander will tell you, does not happen that often when I am chairing something. So it is a wonderful occasion. I am glad he could share in it. Anyway, I want to welcome all the nominees who are here today. I thank Chairman Leahy for the opportunity of chairing this hearing. I want to welcome the families and friends who have come to support them and thank Senator Grassley for serving as Ranking Member and being so diligent, as he always is. I am going to recognize Senator Grassley for an opening statement because he has to go somewhere else briefly, and he will be back. And then we will get on with the rest of it. PRESENTATION OF J. PAUL OETKEN, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK, BY HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. I am going to take 10 minutes off after my statement for the Lone Tree High School students who are here to ask me a few questions. In my opening statement--I am going to put the whole thing in the record, but I would like-- -- Senator Schumer. Without objection. Senator Grassley. I usually give an update, and then I would like to speak about one of the people that have an Iowa background that you nominated. That is why you nominated him. Senator Schumer. We have a lot of great Iowans in New York. We do. Senator Grassley. Over the past few days, we have confirmed five more nominees to vacancies in the Federal judiciary. In the short time we have been in session, we have confirmed 12 judicial nominees, more than in the same period of any of the previous four Presidents. Nine of those confirmations were for seats designated ``judicial emergencies.'' This year, we have reported 22 nominees out of Committee. With this hearing, our fourth hearing, we will have heard from 17 judicial nominees this year. In total, we have taken positive action on 33 of 58 judicial nominations submitted to the Senate. The person that you have nominated that I wanted to bring up is Paul Oetken, nominated to be U.S. District Judge for the Southern District of New York. He graduated from the University of Iowa in 1988, has a Yale Law School law degree in 1991, and he was brought up in Cedar Rapids, Iowa, has family still in Iowa. Mr. Oetken after law school spent 3 years clerking for Federal judges, beginning with Judge Cudahy, Seventh Circuit; Judge Oberdorfer in the D.C. Circuit; finally, with Justice Harry Blackmun, Supreme Court. Following his clerkship, Mr. Oetken entered private practice. In 1997, he became attorney- adviser with the Department of Justice Office of Legal Counsel. In 1999, he joined the White House Counsel's Office as Associate Counsel to President Clinton. In 2001, he moved to New York and returned to private practice. In 2004, he joined the legal department of Cablevision Systems. Currently, he is senior vice president and associate general counsel of Cablevision. Congratulations, Mr. Oetken. I will put the rest of my statement in the record. Senator Schumer. Without objection. [The prepared statement of Senator Grassley appears as a submission for the record.] Senator Schumer. Now let me call on Senator Alexander, who is here to introduce our second nominee. PRESENTATION OF BERNICE BOUIE DONALD, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH CIRCUIT, BY HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE STATE OF TENNESSEE Senator Alexander. Thank you, Mr. Chairman and Senator Grassley, for letting me come. I am here today to introduce Judge Bernice Donald, who has been nominated by the President to be United States Circuit Judge for the Sixth Circuit. Judge Donald has been a judge for 28 years, and I am certain this Committee will do its usual thorough job in assessing her professional credentials, which are considerable. But what I would like to say briefly in introducing her is something the Committee may not be as likely to know about, and that is her reputation as a person in Memphis and in Shelby County. Judge Donald came from humble beginnings, the daughter of a domestic worker and a self-taught mechanic. She is the sixth of ten children. She began working as a dispatch supervisor with the telephone company before she got her law degree at Memphis State University, what was then called Memphis State University. She has been a pioneer for African-Americans in Memphis and Shelby County as a student, as a bankruptcy judge, as the first black female district court judge, first woman of color to serve as an officer of the American Bar Association in its 130-year history. She has been a community leader with at- risk youth; especially she works with young people, and she has been very active at the University of Memphis. She is here with her husband, W.L. She is here with a number of her other friends and supporters from Memphis and Shelby County, and I am delighted to introduce her to the Committee and recommend her nomination and especially let the Committee know about this extraordinary record of community service and personal achievement in our largest county and biggest city. Senator Schumer. Well, thank you. Thank you very much, Senator Alexander. And I know how busy you are and I know it speaks extremely well of our nominee that you came to be here to introduce her. So thank you for being here, and I know you have a busy schedule, so feel free to move on. Now I would like to introduce Delegate Sablan to introduce Judge Ramona Villagomez Manglona for the Northern Mariana Islands. PRESENTATION OF RAMONA VILLAGOMEZ MANGLONA, NOMINEE TO BE JUDGE FOR THE DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS, BY HON. GREGORIO SABLAN, A DELEGATE IN CONGRESS FROM THE NORTHERN MARIANA ISLANDS Mr. Sablan. Thank you very much, Mr. Chairman. Thank you for the opportunity to speak for a few minutes in support of Judge Ramona Villagomez Manglona, the nominee for the United States District Court for the Northern Mariana Islands. This is a historic moment for the people of the Northern Mariana Islands. We have only been a part of the United States for 33 years. Judge Manglona, myself, and many of us became U.S. citizens by Executive order of President Reagan in 1986. We have only been represented in the U.S. Congress for 27 months, and we have never had someone from our islands presiding on the United States District Court. So to have Judge Manglona confirmed to the bench would truly be a milestone in our political maturity. You have ready access to Judge Manglona's academic credentials, her resume, her record in the superior court in the Northern Marianas, but let me speak to her character, which was the basis for my decision to recommend her nomination to President Obama. Opportunity for education has improved for the people of the Northern Mariana Islands, but within my lifetime, getting an education meant leaving home, often at an early age. I went off island for high school at 11. Judge Manglona left home at age 12 to attend school on the Mainland. She is the 11th of a dozen children, but her parents, Manuel and Luisi Villagomez recognized their daughter's intelligence and, in a family of hard workers, her capacity for achievement. Judge Manglona excelled at school, earning her undergraduate degree at Berkeley. This may seem an ordinary accomplishment to you, but for someone from the islands, and especially for a woman from our islands, 20 years ago this was not the norm. Judge Manglona, of course, returned home, married, and started a family. Her husband, our Supreme Court Justice John Manglona, and their two children, Dencio and Savana, are here today. But judge Manglona's hunger for education continued. She made the extraordinary decision, with the support of her family, to leave home again to attend law school at the University of New Mexico, and you can imagine how tough a choice that was and how difficult that was for being away from her family as she charged through law school in 2-1/2 years and returned home with another degree in her name. Judge Manglona's mother and father were quite successful business people. Their daughter could have easily been taking a place in the family's commercial enterprises. Instead, she chose to employ her education and energy in public service. In the process, she has been a groundbreaker for island women, the first to be confirmed as Attorney General, the first to be confirmed to our local court, and now the first woman or man from the islands to be nominated to the Federal bench. I recommend Judge Manglona to you not only as a person of talent and drive, not only as a trailblazing woman; most importantly, Mr. Chairman, she is someone of integrity and impeccable character who will serve with distinction as judge on the United States District Court for the Northern Mariana Islands. I would like, Mr. Chairman, with your consent to include in the statement--and we are joined today by Hon. Madeleine Bordallo from Guam, and with your consent I would like to insert into the record her statement of support. Senator Schumer. Without objection. [The prepared statement of Ms. Bordallo appears as a submission for the record.] Senator Schumer. Thank you, Delegate Sablan. Mr. Sablan. Thank you very much for this privilege, Mr. Chairman. Chairman Schumer. Thank you. PRESENTATION OF J. PAUL OETKEN, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK, AND PAUL. A. ENGELMAYER, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK, BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK. Senator Schumer. It is now my turn to introduce two nominees: J. Paul Oetken, whom Senator Grassley spoke so nicely about; and Paul A. Engelmayer. They are both uniquely qualified, talented, and esteemed nominees for the United States District Court for the Southern District of New York. Now, we have a very deep bench of legal talent in New York, but as I think my colleagues will see, the two nominees are the lawyer's equivalent of Joe DiMaggio and Mickey Mantle as they entered the major leagues. Paul Oetken is not, alas, originally a New Yorker, as we heard. He was raised in Iowa, the beautiful home of the Ranking Member of the Committee, and he graduated from the University of Iowa. He then went to Yale Law School and after graduation earned the distinction of clerking for three renowned Federal judges: Judge Richard Cudahy on the Seventh Circuit Court of Appeals, Judge Louis Oberdorfer on the District Court for the District of Columbia, and, of course, Justice Harry Blackmun on the U.S. Supreme Court. Paul has worked in two of the three branches of Government, which I consider to be invaluable experience to the bench. He served in the prestigious Office of Legal Counsel during the Clinton administration, went on to serve as an Associate Counsel to the President. Most recently, he worked at the New York law firm of Debevoise & Plimpton and now serves as senior vice president of Cablevision Systems in Bethpage, one of the largest cable companies in the country. In this capacity he manages the company's wide array of litigation and has developed expertise in employment discrimination, which he teaches at Fordham Law School. His qualifications speak for themselves, but in addition to the first two traits that I look for in judicial candidates-- excellence, they should be legally excellent; moderation, I do not like judges too far right or too far left because they tend to make law, not interpret law. I also look for candidates who bring diverse views and backgrounds to the bench. Paul is the first openly gay man to go through an Article III confirmation process in this country, which makes this moment historic. But long after today, what the history books will note about Paul is certain to be his achievement as a fair and brilliant judge. Second, I have the privilege of introducing another distinguished lawyer, Paul Engelmayer, who has been a respected and revered member of the New York legal community since his graduation from law school. Unlike Mr. Oetken, Paul was born in Brooklyn, where his mother was a remedial reading teacher in Brooklyn's public schools. Paul's father went to night law school in Brooklyn and dedicated his career to working as a sole practitioner representing clients throughout the city. Paul left Brooklyn and went to Harvard College. Luckily for all of us who are looking forward to his service on the bench, Paul abandoned an early career as a journalist for the Wall Street Journal to attend Harvard Law School, where he graduated magna cum laude. He also earned prestigious clerkships: one for Patricia M. Wald on the District of Columbia Circuit, and the second for Justice Thurgood Marshall on the U.S. Supreme Court. Immediately after clerking, Paul followed his calling to public service and joined the United States Attorney's Office for the Southern District. He rose quickly to become deputy chief of the Appellate Division, then returned to Washington where he served as an Assistant Solicitor General. But the U.S. Attorney's Office apparently had a grip on Paul, where he returned there to become chief of the Major Crimes Unit, where he worked until joining the New York office of Wilmer, Cutler, Pickering, Hale & Dorr. He is now the partner in charge of that office and has set a laudable example for young lawyers by dedicating a substantial amount of time to pro bono work on behalf of clients who need lawyers. I would venture to say there is no one in the New York Bar who would rate Paul's legal skills, judgment, and dedication to the law at less than a perfect 10. So thank you, and I look forward to today's hearing. Next we are going to call up Judge Donald. Judge Donald, welcome, and I have to swear you in. Judge Donald, please raise your right hand. Do you affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Donald. I do. Senator Schumer. Thank you. Please have a seat. OK. So you may now introduce your family and friends who are with you today because I know it is a proud moment for them. Judge Donald. Thank you, Chairman Schumer. First, I would like to express publicly my thanks to President Obama for his confidence in nominating me for this position. I would also thank the senior Senator from Tennessee, Senator Lamar Alexander, for his generous introduction, and Senator Corker in his absence. And I certainly want to thank you, Mr. Chair, and this Committee for scheduling this hearing. I do have a number of friends and family this afternoon, but I understand that time is short, so I may ask a number of them to stand. But I do want to express my thanks for the presence of these family and friends: my husband, W.L. Donald; my sister, Virginia Bouie Wilson; her husband, Reverend Bobby Wilson; my niece, Carolyn Adams; and my niece, Cassandra Bouie. Several friends: Attorney Sheila Slocum Hollis, who is here in the front row, from Duane Morris; the general counsel of the Commercial Law Development Program, a part of the Commerce Department, Steve Gardner, who is here; Attorney Marie-Flore Kouame from the CCIPS Unit of the Department of Justice; and other members of that staff: Katrina Osonovo, Elise Yobikoff, and the senior attorney, Namde Azero. I also have other friends: Attorney Mary Smith, Attorney Don Bivens, Attorney Shelly Hayes, Attorney Larry Miller, Matt Surego; Marilyn Queen from the Federal Judicial Center; a former law clerk, Alicia Black; and Attorney Ashley Sills, along with the former Special Agent in Charge of the Federal Bureau of Investigations from Memphis, Attorney My Harris, and her daughter, Robbie Harris. And also Attorney Charlotte Collins is present, and especially my former law clerk who is now a magistrate judge, Charmiane Claxton, is here today, and I am so grateful. And, obviously, a number of my clerks and former clerks are watching this on TV, and I acknowledge the great help of my immediate staff--Tyler Brooks, Janica White, and Stevie Phillips. Thank you. Senator Schumer. Well, thank you, Judge Donald. That is a lot of people to stand up, but would all of you who were introduced please stand so we may acknowledge and welcome you. Thank you all for being here. Judge Donald. Thank you. And I saw my niece, Cassandra Bouie, who is back in the back. Senator Schumer. Welcome to Ms. Cassandra Bouie as well. OK. No more, no less than all the others. I have a few questions for you, Judge. You have been a United States district court judge for 16 years. Many of my colleagues on this Committee have expressed concern about the lack of courtroom experience of some of our appellate nominees, but clearly you make the grade. You have a lot of experience. Why do you want to be a court of appeals judge? And what do you think your having been a district judge will allow you to bring to the table? STATEMENT OF HON. BERNICE BOUIE DONALD, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH CIRCUIT Judge Donald. Mr. Chair, thank you so very much for that question. I have served as a trial judge for 28\1/2\ years, 16 of those on the district court, and in that time I have had a opportunity to see litigation up close and make the critical decisions about facts coming before the court. I have had the opportunity to apply settled principles of law, and I have had the opportunity to watch the drama of trials unfold. I think that I bring a particular degree of experience by virtue of having had those 28 years of seeing trials play out, and now at this point I believe that that experience can help inform decisions that I would make as an appellate court judge. I think that is an important perspective. Senator Schumer. Thank you. Now, Judge Donald, in a number of speeches over the years, you have referred to the need to be conscious of one's own race and the perspective that race gives each of us, as well as the need to be aware of other people's racial experiences. One report characterized you as having said that you apply ``a vastly different'' standard than your white counterparts in discrimination cases. Could you please clarify your remarks? And have you ever or would you ever apply a legal standard to a case that is dictated by anything other than the rule of law? Judge Donald. Thank you for that opportunity to clarify, Mr. Chair. I would certainly never apply a different standard in deciding a summary judgment or any other cases. My goal as a judge is always to apply the law, to look to existing precedents, and to decide the facts before me free from bias, prejudice, or partiality. That statement was taken out of context. It was in a panel that I participated on in an American Bar Foundation program, and that particular comment was related to a particular case that I worked on when I sat by designation at the court of appeals. And I was speaking to how my experience allowed me to bring a different and diverse perspective to an assessment of the facts in that case. But I would always apply precedent and settled principles of law. I believe that a judge has to leave race and other personal philosophies at the door. Senator Schumer. Thank you. I think that does clarify that very well. Next, you decided a case called Robinson v. Shelby County Board of Education. That was a 40-year-long case that involved a complex set of circumstances regarding school desegregation. In that case, when the parties came before you to ask that the consent decree be dissolved, you granted their request as to significant areas: facilities, transportation, and staffing. You denied it as to others. Your lengthy fact-bound decision was overturned in a closely divided 2-1 decision by the Sixth Circuit. After the Sixth Circuit's decision, did you have any hesitation at all in complying with that decision? And would you in future cases have any trouble complying with existing law in any way? Judge Donald. Senator Schumer, I would never have any problems complying with existing law. Indeed, in that case my effort was to comply with existing settled principles of law. You are right, that was a case that was filed in the courts when I was 12 years old. It came to me--it was as class action case. It came to me on a motion to dismiss and declare the school system unitary, declare that all vestiges of discrimination have now been removed. In a class action case, under Rule 23 of the Federal Rules of Procedure, I have a duty as a judge to conduct a fairness hearing, and in conducting that fairness hearing, I am obliged to apply in a school desegregation case the green factors to make certain that there has been compliance with Supreme Court law. And you are right, I found that Shelby County had made tremendous progress in three of those areas, but in other areas they had not made such progress. I also have to look at whether or not there has been good- faith compliance with all of the orders of the court, and based upon an assessment of the law applied to those facts, I found that in three areas unitary status had been earned and three others had not. And, of course, when the Sixth Circuit issued their ruling, I promptly complied and dismissed the case. Senator Schumer. OK. So thank you, Judge Donald. That completes my time for questioning. I thank you for being here, and I thank all of your relatives, friends, law clerks, nieces, and everyone else who came. Judge Donald. Thank you. Mr. Chair, may I and my friends be excused? Senator Schumer. Please. Judge Donald. Thank you. [The biographical information follows.]
Senator Schumer. We are just going to reset the table, but in the meantime, I am going to ask Mr. Engelmayer, Mr. Oetken, and Judge Manglona to come forward because I want to swear them in. Will you please stand to be sworn? Do you each affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Oetken. I do. Mr. Engelmayer. I do. Judge Manglona. I do. Senator Schumer. Thank you. OK, first I have a few questions for all of you. I have always said that moderation and judicial modesty are two qualities that are important to me in a potential judge--oh, sorry. I did not let you introduce your families and guests, so let me do that. Mr. Oetken, if you have any people you would like to introduce here? STATEMENT OF J. PAUL OETKEN, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Mr. Oetken. Thank you, Mr. Chairman. I would like to thank you, Senator Schumer, for convening this hearing and also Senator Grassley. I would also like to thank briefly President Obama for this nomination, which is a great honor, and you, Senator Schumer, for recommending me for this position. I would like to introduce a few of my family members and friends who are here. I would ask them to stand very briefly. First of all, my partner, ``Makky'' Pratayot, is here. I am very happy he was able to come down from Manhattan where we live. My brother is here from Iowa City, John, and his wife, Carla; and their two kids, Luke and Ben, who are 15 and 13. They are on spring break this week from school in Iowa City. I am delighted that they are able to be here. I also want to acknowledge briefly my sister, Sara, who is watching on the webcast from home in St. Charles, Illinois, with her husband, Matt, my brother-in-law, and my niece and nephew, Katie and Ian, who are 11 and 9, and they are all watching and were not able to be here, but I appreciate their support. Finally, I just want to acknowledge my mom and dad, Jim and Betty Oetken, who very much wanted to be here but were not able to because my father had to have surgery yesterday, which everything went fine, I am happy to say. Senator Schumer. Praise God. Mr. Oetken. And they are watching on the webcast, and I am extremely grateful to them for their love and support over the years. They have been the most amazing, warm, loving, supportive parents anyone could hope for, and I really owe them everything. Senator Schumer. Thank you, and---- Mr. Oetken. If I could also briefly acknowledge just a few friends who are here. Senator Schumer. Yes. We like that. That is the nice part of these hearings. Mr. Oetken. I have several friends who were able to come down from New York and friends from D.C. and several friends, including my great friends at Cablevision, who are able to watch on the webcast. So I just want to thank all of them for their support as well. Senator Schumer. Great. Well, thank you all, and would the friends--since the family stood up, would the friends of Mr. Oetken please rise so we can say hello and greet you? Thank you all for being here. Great. [The biographical information follows.]
OK. Mr. Engelmayer. STATEMENT OF PAUL A. ENGELMAYER, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Mr. Engelmayer. Good afternoon, Senator, and thank you very much. I want to begin by thanking you for those very, very generous words of introduction, for the honor of recommending me for this job, and for the confidence you have shown in me. I also want to thank the Ranking Member and the other members of the Committee for their consideration. And I want to thank President Obama for the singular honor of nominating me for this job and for the opportunity to serve my country in this fashion. I appreciate very much the opportunity to introduce family and friends. First and foremost, I would like to introduce my wife, Emily, who is my best friend, the love of my life, and the person who, by her example every day, teaches me to do the right thing. Senator Schumer. Please stand up. With that introduction you have to stand up. [Applause.] Mr. Engelmayer. I would like to introduce my children, Caroline and William. They are each on furlough, a 1-day furlough from school today, from seventh and fourth grade at the Trinity School, and they are on the condition that they each bring back a civics lesson, which they have promised to do. Senator Schumer. Well, my daughter went to the Trinity School, so it is a very fine school, and it is worth it to miss a day to see your father here, but not by much. It is that good a school. [Laughter.] Mr. Engelmayer. Also, I am very pleased to have here my sister, Jean; my brother-in-law, Jan; my nephews Sasha and Peter; my brother-in-law, Pete; and my sister-in-law, Dawn; my mother-in-law, Gloria Mandelstam, herself an extremely accomplished lawyer and a trailblazer for women in the law. I am very honored to have Chief Judge Patricia Wald of the D.C. Circuit for whom I clerked. Senator Schumer. Very nice. Thank you, Judge Wald. Thank you for being here. Mr. Engelmayer. And she is both a mentor and a dear friend. And I am honored to have here a number of my law partners, who I also count as my friends--Howard Shapiro, Randy Moss, and Dave Bowker; and a number of my dear friends--Eric Washburn, Chuck Lane, and I believe Tony Lincoln. Finally, I would like to acknowledge my parents. They did not live to see this day, but I think of them every day. They loved this country in that special way that immigrants or, in their case, the children of immigrants do. They were enormously proud that I spent the first 12 years of my career in public service, primarily as a prosecutor in Manhattan, and I know they would be very proud today. Thank you. Senator Schumer. Well, thank you. That is wonderful. And now we have Judge Manglona to introduce her family and friends who came a little bit of a further distance, I suppose, than either of the other nominees here. [The biographical information follows.]
STATEMENT OF HON. RAMONA VILLAGOMEZ MANGLONA, NOMINEE TO BE JUDGE FOR THE DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS Judge Manglona. Yes. Thank you, Mr. Chairman, and also thank you to Senator Grassley for convening this session this afternoon, and I also would like to publicly and openly say thank you to President Obama for giving me this honor and the privilege of having been nominated to serve as the next judge for the U.S. District Court for the Northern Mariana Island. I also want to think Congressman Kilili, or Congressman Gregorio Kilili Sablan from the Northern Mariana Islands who introduced me, as well as Congresswoman Madeleine Bordallo from Guam who is present and has also submitted her statement in support. At this time I would like to introduce the family members that are here with me today who made the 10,000-mile trek, starting with my husband, John Manglona. My husband and I just celebrated our 20th wedding anniversary 2 weeks ago today, so we are very happy. Senator Schumer. Many more. Judge Manglona. I am looking forward to that. As well, our son, Dencio Manglona. He flew in from the University of Michigan in Ann Arbor--he is sophomore there--just to make it here today. And I also have our daughter, Savana Manglona. She is a senior at Mount Carmel High School in Saipan, and we are looking forward to her attending university. The University of Michigan is on the list. With us as well is my brother, David Villagomez--he flew in from Honolulu--as well as my brother-in-law, Paul Manglona. He was here fortuitously for other business matters, but was able to be here. And as a representative for my siblings, I also have my two nephews, Walter and Jason Wesley, who are currently residents of the State of Virginia, and they are able to make the short trip up. Allow me also please to recognize the individuals or my family members that really wanted to be here but could not under the situation, and they are here otherwise through the webcast, and I know they are all tuned in at about 4 in the morning Saipan time, starting with my father, Manuel Villagomez, and my siblings and my in-laws, as well as my father-in-law, Prudencio Manglona, out of the island of Rota, and my in-laws as well as my other in-laws that are in Guam, Vincent as well as my sister-in-law President in Saipan. Without them, I would not be here. Then, finally, I do want to also recognize two individuals that could not be here because they are no longer with us on this Earth: my mother, Luisi, as well as my mother-in-law Bernaditz Manglona. They have been the inspiration of my life, and I know they are here with us. So thank you for allowing me to introduce them. I also would like to just recognize that there are three Senators who are also from the CNMI. They were previously scheduled for some business meetings here, and they made the time to be here to attend the session. That is Senator Hofschneider from Tinian, Senator Cruz from Tinian, and Senator Ralph Torres from Saipan. Thank you, Mr. Chairman. Senator Schumer. Great. Well, thank you. These were great rounds of introductions. [The biographical information follows.]
Now I have a question for each of you, the same question for all three. I have always believed that moderation and judicial modesty are two qualities very important in a potential judge. What do these concepts mean to you? And in your opinion, what are the most important qualities in a judge? Mr. Oetken. Mr. Oetken. I also agree, Senator, that moderation and judicial modesty are crucial characteristics of a judge. In my view, the notion of judicial modesty I guess has two parts to it. I think one is the idea of following precedent, stare decisis. Judges do not write on a blank slate. There are learned opinions that have been decided before judges and, in particular, opinions of the Second Circuit and the Supreme Court govern all decisions of the district court in the Southern District. If I were a judge, I would follow those. The second piece of judicial modesty, in my view, really is the idea of deciding the case or controversy before a judge and not going beyond the case or controversy to address issues that are not presented in that case. Senator Schumer. Great. Thank you. Mr. Engelmayer. Mr. Engelmayer. Thank you, Senator, for that question. I agree with everything that Mr. Oetken has said. Judicial modesty is of vital importance. I think it means resolving questions in accord solely with the rule of law. It means resolving questions as narrowly as possible. I think it also speaks to the proper judicial temperament. A judge is not the center of attraction. Nobody comes to court to see the judge. It is the parties who are there to have their controversy resolved, and it is very important for the court to instill a sense of dignity, to listen carefully, to treat the parties as the most important people in the room. And that is something that I have seen in each of the different contexts in which I have litigated, that parties and their lawyers rightly expect cases to be resolved in accordance with the rule of law by a neutral and independent decider, you know, with projecting a sense of dignity for all people in the room, and always with a vigorous review of the record. Senator Schumer. Thank you. Judge Manglona. Judge Manglona. Yes, thank you, Mr. Chairman. I agree with my two panel members here, with their statements. I would also like to add in regards to judicial modesty, I believe it also means that it is a recognition that as a judge there is so much power entrusted by the people and that to exercise that power by being compliant to the rule of law is something of significance, to recognize that any decision to be rendered has to be pursuant to what is the fact before the judge and what law applies. Thank you. Senator Schumer. Thank you. I thank you all three. Now I have an individual question for each of you. First to Mr. Engelmayer, the Southern District--no, sorry. You spent a significant amount of time litigating pro bono matters, and you have been involved in highly contentious cases, such as the New York State same-sex marriage case. Can you give the Committee assurance that you understand the difference between being an advocate and being a judge? Mr. Engelmayer. Thank you, Senator, for that question. There is an enormous difference between being an advocate and a judge, and I understand it. An advocate's responsibility is to zealously advance the interests of his or her client, making all responsible arguments that are in the client's strategic interest. That is what an advocate does, and an advocate is the one who sets the table by bringing the lawsuit or defending it, as the case may be. A judge stands in an entirely different situation. A judge is a passive recipient of cases brought by other people, and his or her responsibility is to resolve those cases as narrowly as possible in accord with the rule of law, checking all of his or her personal opinions at the courthouse door and being rigorously neutral and independent. Senator Schumer. Thank you. Now for Judge Manglona. You have been a judge on the Northern Mariana Islands Superior Court since 2003 as well as the Guam Supreme Court. How will this experience help you as a Federal judge in the NMI? And what are the differences between the Federal docket and the Commonwealth docket in the NMI? Judge Manglona. Thank you, Mr. Chairman. I believe that my 8 years of trial court experience as a trial court judge is going to be very beneficial for my role, if so confirmed by the Senate, as a U.S. district court judge. And having also sat as a panel member in the appellate level for the Guam Supreme Court, I also have that perspective of recognizing what a review is going to look for. So rather than waiting for the review process, that insight guides me to handle a case, again, pursuant to the rule of law. So I believe the difference in regards to the case law that I would handle--of course, we understand the difference of State laws and the Federal laws, but basically the same rules apply, which is the rule of law. Senator Schumer. Thank you. My time has expired, but I have one question for Mr. Oetken. With Senator Coons' permission I will ask it and then we will move on to him. Mr. Oetken, you have worked at Cablevision in New York for 7 years as in-house counsel, and you now manage the company's extensive litigation portfolio. That is a fairly unusual background for a Federal judge. What do you think you will bring to the table from your experience working inside a Fortune 500 companies and one of the largest television and radio providers in the country? Mr. Oetken. Thank you for the question, Senator Schumer. I actually think it has been an amazing experience to be the head of litigation at Cablevision because it is a company--it is an extremely well run company, but it is also a company that has a really wide array of legal issues ranging from regulatory issues and then in the litigation area, everything from complex commercial cases and contract cases to securities, patent, copyright, employment cases, antitrust cases. It is a really wide range of cases in a wide range of courts, mostly in the New York-New Jersey-Connecticut area, but also in other courts in some situations. I also think that that experience, in addition to exposing me to many different legal issues and cases, it has allowed me to see from the inside of a corporation what legal life is like, what a corporation faces in the legal arena, what boards of directors face in the legal arena. And I think that is a very valuable insight, particularly in the Southern District. Senator Schumer. Thank you. I thank all three of you. I think in my judgment each of you will make fine judges on the courts to which you are nominated. Senator Coons. Senator Coons. Thank you, Senator Schumer, and thank you for the opportunity to join you in welcoming this distinguished panel of nominees. If you will forgive me, I wanted to pay particular attention and deference to Mr. Oetken, who was my classmate in law school. I do have a question for all three of you, but if you will forgive me for extemporizing for a moment. Since we knew each other at Yale Law School, I have followed your career with interest. You are, in my view, a shockingly bright person who has exactly the sort of varied career in the private sector with several major law firms, if I remember correctly, Jenner & Block, Debevoise & Plimpton as well as Cablevision, and a number of admirable clerkships-- Oberdorfer on the district court and then to Cudahy on the circuit court and then Justice Blackmun on the Supreme Court. My impression of you has always been that you are someone with a searching intellect and a broad range of capabilities. And forgive me, to all three of our distinguished applicants, the shared experience of cramming for exams such as they were in our school compelled me to come here and speak on his behalf. Senator Schumer. The pass/fail system at Yale Law School. [Laughter.] Senator Coons. An important secret. I do think, if I might then conclude, that, Mr. Oetken, you would provide a unique combination of perspectives, and you present an exceptional series of qualifications. I think it is important for us to continue to advocate in the Senate and in the country for the proposition that it is your professional qualifications and skills that should be considered, and those alone, as we weigh whether or not you are appropriate for the bench. And I would be thrilled to speak on the floor in support of your nomination as well. I think it would do all of us proud to have you join the Article III judiciary of this Nation. If you would then, all three of you, answer, if you could, just a simple question, not that dissimilar from those asked by my colleague, but each of you has unique, important personal experiences, both professional and personal, that you would bring to the bench, and they are part of why it would be good to have you on the bench. Help me understand, if you would, in series, how those personal and professional experiences will inform your deliberations as a judge yet not deter you from applying the law as it is found? It is important, I think, for us to promote and sustain a judiciary that is broadly reflective of the diversity of the American people, yet to continue to reinforce the principle that you are bound by precedent, that you are compelled to find the law as you find it in front of you, and that your own personal experience does not unduly inform your deliberations as a judge. If you might, ma'am. Judge Manglona. Thank you, Senator Coons. From my personal and professional experience, having served the Commonwealth of the Northern Mariana Islands during the entire period, previously as a prosecutor and then as a litigator, before serving on the bench, I believe bringing this experience over to the Federal court would assist me as a Federal judge to recognize the distinctions between the State issues as well as the Federal issues. And, personally, all the efforts that I have tried to assist those that are interested in the area of law, when I reach out with the kids and the children in schools and high schools trying to have them recognize that what they are learning are really issues that are actually being litigated and are affecting our community, both in the State level as well as the Federal. I believe that is how things would---- Senator Coons. Thank you. Mr. Engelmayer. Mr. Engelmayer. Thank you, Senator Coons. I have had the extraordinary fortune to have a very diverse background prior to coming here today. I have been a prosecutor or a Government lawyer for over a decade and in private practice for over a decade. I have had extensive criminal and civil experience, trial and appellate experience, and I have represented institutions as well as individuals. But if there is one thing that comes out from all of those things, it is this: that litigants, clients, parties cherish it when a judge is locked in on the facts, is a hard worker, has mastered the record, has gone beyond the briefs, and really is dedicated to getting things right. And contrary-wise, it is dispiriting when a judge comes unprepared. And in addition to the judicial values that I addressed earlier in response to Senator Schumer's question of independence, neutrality, fidelity to the rule of law, simply a heroic work ethic and willing to dig into the fact is something that I have learned is what litigants expect and deserve. Senator Coons. Very well. Thank you, sir. Mr. Oetken. Mr. Oetken. Thank you, Senator Coons. First I want to thank you for those extraordinarily kind and generous remarks. I remember very fondly our days in law school, and I would just point out that I think just about all of us in law school are not surprised to see you in the U.S. Senate and very pleased that you are in the U.S. Senate. I never expected that I would be on this side of the table from you, though. To answer the question, I have also been fortunate enough to have a pretty wide variety of experience that includes some years in the judicial branch, some years in the executive branch, and also several years of private practice. And I think the sort of common thread in terms of qualities that I have, I think, that I think would serve me well on the Federal bench are, in particular, my ability to listen carefully to the parties and to different arguments and not to give short shrift to those arguments but to really try to understand them in their best light, to analyze difficult legal issues carefully and rigorously, to write well, and at the end of the day to rule on the basis of the law and precedent in the facts of a particular case before me. Senator Coons. Thank you. Thank you very much. I know your family and your friends are justifiably proud of all of you, and it is my hope that we will move swiftly to your consideration and confirmation by this body. Thank you very much for being with us today. Senator Schumer. Thank you, Senator Coons, and I want to thank our panel for their excellent answers and for being here. We share a little bit of the joy on this great occasions that your family and friends have, and that is a very nice thing that is part of this. With that, if Senator Coons has no further questions--I do not, but before I close the hearing, I want to ask unanimous consent that the statement of our Chairman, who really takes a great interest in the process here, the nomination process, as well as trying to fill the many vacancies we have on the bench, he has a statement which I would ask unanimous consent to be read into the record, without objection. [The prepared statement of Chairman Leahy appears as a submission for the record.] Senator Schumer. The record will stay open for 7 days, and the hearing is adjourned. [Whereupon, at 3:13 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.]
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