[Senate Hearing 113-515, Part 10] [From the U.S. Government Publishing Office] S. Hrg. 113-515, Pt. 10 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ SEPTEMBER 9, SEPTEMBER 17, NOVEMBER 13, and DECEMBER 10, 2014 __________ Serial No. J-113-1 __________ Part 10 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://www.fdsys.gov U.S. GOVERNMENT PUBLISHING OFFICE 24-276 PDF WASHINGTON : 2017 ---------------------------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Publishing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking CHUCK SCHUMER, New York Member DICK DURBIN, Illinois ORRIN G. HATCH, Utah SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina AL FRANKEN, Minnesota JOHN CORNYN, Texas CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona Kristine Lucius, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director C O N T E N T S ---------- SEPTEMBER 9, 2014, 10 A.M. STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 3 Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1 PRESENTER Kirk, Hon. Mark, a U.S. Senator from the State of Illinois presenting John Robert Blakey, Nominee to be District Judge for the Northern District of Illinois.............................. 3 STATEMENTS OF THE NOMINEES Witness List..................................................... 19 Alonso, Hon. Jorge Luis, Nominee to be U.S. District Judge for the Northern District of Illinois.............................. 5 biographical information..................................... 20 Blakey, John Robert, Nominee to be U.S. District Judge for the Northern District of Illinois.................................. 6 biographical information..................................... 73 Mazzant, Hon. Amos L., III, Nominee to be U.S. District Judge for the Eastern District of Texas.................................. 6 biographical information..................................... 128 Pitman, Robert Lee, Nominee to be U.S. District Judge for the Western District of Texas...................................... 7 biographical information..................................... 207 Schroeder, Robert William, III, Nominee to be a U.S. District Judge for the Eastern District of Texas........................ 8 biographical information..................................... 276 QUESTIONS Questions submitted to Hon. Jorge Luis Alonso and John Robert Blakey by Senator Cruz......................................... 337 Questions submitted to Hon. Jorge Luis Alonso by Senator Grassley 317 Questions submitted to John Robert Blakey by Senator Grassley.... 321 Questions submitted to Hon. Amos L. Mazzant, III, by Senator Grassley....................................................... 325 Questions submitted to Robert Lee Pitman by Senator Grassley..... 329 Questions submitted to Robert William Schroeder, III, by Senator Grassley....................................................... 333 ANSWERS Responses of Hon. Jorge Luis Alonso to questions submitted by: Senator Cruz................................................. 345 Senator Grassley............................................. 338 Responses of John Robert Blakey to questions submitted by: Senator Cruz................................................. 356 Senator Grassley............................................. 348 Responses of Hon. Amos L. Mazzant, III, to questions submitted by Senator Grassley............................................... 358 Responses of Robert Lee Pitman to questions submitted by Senator Grassley....................................................... 365 Responses of Robert William Schroeder, III, to questions submitted by Senator Grassley............................................ 372 LETTER RECEIVED WITH REGARD TO HON. JORGE LUIS ALONSO American Bar Association, August 5, 2014, letter................. 380 LETTER RECEIVED WITH REGARD TO JOHN ROBERT BLAKEY American Bar Association, August 5, 2014, letter................. 382 LETTER RECEIVED WITH REGARD TO HON. AMOS L. MAZZANT, III American Bar Association, June 27, 2014, letter.................. 384 LETTER RECEIVED WITH REGARD TO ROBERT LEE PITMAN American Bar Association, June 27, 2014, letter.................. 386 LETTER RECEIVED WITH REGARD TO ROBERT WILLIAM SCHROEDER, III American Bar Association, June 27, 2014, letter.................. 388 C O N T E N T S ---------- SEPTEMBER 17, 2014, 10:05 A.M. STATEMENT OF COMMITTEE MEMBER Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 391 PRESENTERS Norton, Hon. Eleanor Holmes, a Delegate in Congress from the District of Columbia presenting Amit Priyavadan Mehta, Nominee to be District Judge for the District of Columbia.............. 392 Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts presenting Allison Dale Burroughs, Nominee to be District Judge for the District of Massachusetts............... 393 STATEMENTS OF THE NOMINEES Witness List..................................................... 405 Burroughs, Allison Dale, Nominee to be U.S. District Judge for the Northern District of Massachusetts......................... 395 biographical information..................................... 406 Davidson, Jeanne E., Nominee to be Judge of the U.S. Court of International Trade............................................ 396 biographical information..................................... 460 Gilliam, Haywood Stirling, Jr., Nominee to be U.S. District Judge for the Northern District of California........................ 397 biographical information..................................... 514 Mehta, Amit Priyavadan, Nominee to be U.S. District Judge for the District of Columbia........................................... 398 biographical information..................................... 564 QUESTIONS Questions submitted to Allison Dale Burroughs, Haywood Stirling Gilliam, Jr., and Amit Priyavadan Mehta by Senator Cruz........ 621 Questions submitted to Allison Dale Burroughs by Senator Grassley 603 Questions submitted to Jeanne E. Davidson by Senator Grassley.... 607 Follow-up questions submitted to Jeanne E. Davidson by Senator Grassley........................................... 617 Questions submitted to Haywood Stirling Gilliam, Jr., by Senator Grassley....................................................... 609 Questions submitted to Amit Priyavadan Mehta by Senator Grassley. 613 ANSWERS Responses of Allison Dale Burroughs to questions submitted by: Senator Cruz................................................. 630 Senator Grassley............................................. 622 Responses of Jeanne E. Davidson to questions submitted by Senator Grassley....................................................... 632 Responses of Jeanne E. Davidson to follow-up questions submitted by Senator Grassley.............................. 637 Responses of Haywood Stirling Gilliam, Jr., to questions submitted by: Senator Cruz................................................. 652 Senator Grassley............................................. 643 Responses of Amit Priyavadan Mehta to questions submitted by: Senator Cruz................................................. 662 Senator Grassley............................................. 655 LETTER RECEIVED WITH REGARD TO ALLISON DALE BURROUGHS American Bar Association, August 4, 2014, letter................. 665 LETTER RECEIVED WITH REGARD TO JEANNE E. DAVIDSON American Bar Association, August 19, 2014, letter................ 667 LETTER RECEIVED WITH REGARD TO HAYWOOD STIRLING GILLIAM, JR. American Bar Association, August 19, 2014, letter................ 669 LETTER RECEIVED WITH REGARD TO AMIT PRIYAVADAN MEHTA American Bar Association, August 4, 2014, letter................. 671 C O N T E N T S ---------- NOVEMBER 13, 2014, 12:21 P.M. STATEMENTS OF COMMITTEE MEMBERS Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 677 Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii...... 673 prepared statement........................................... 882 PRESENTERS Burr, Hon. Richard, a U.S. Senator from the State of North Carolina presenting Loretta Copeland Biggs, Nominee to be District Judge for the Middle District of North Carolina...................... 673 Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina presenting Loretta Copeland Biggs, Nominee to be District Judge for the Middle District of North Carolina..................................... 675 STATEMENTS OF THE NOMINEES Witness List..................................................... 685 Azrack, Hon. Joan Marie, Nominee to be U.S. District Judge for the Eastern District of New York............................... 677 biographical information..................................... 686 Biggs, Loretta Copeland, Nominee to be U.S. District Judge for the Middle District of North Carolina.......................... 678 biographical information..................................... 747 Botticelli, Michael P., Nominee to be Director of National Drug Control Policy................................................. 679 biographical information..................................... 868 prepared statement........................................... 878 Dillon, Elizabeth K., Nominee to be U.S. District Judge for the Western District of Virginia................................... 679 biographical information..................................... 817 QUESTIONS Questions submitted to Nominees Hon. Joan Marie Azrack, Loretta Copeland Biggs, and Elizabeth K. Dillon by Senator Cruz........ 899 Questions submitted to Hon. Joan Marie Azrack by Senator Grassley 884 Questions submitted to Loretta Copeland Biggs by Senator Grassley 888 Questions submitted to Michael P. Botticelli by: Senator Feinstein............................................ 900 Senator Grassley............................................. 896 Senator Hirono............................................... 902 Questions submitted to Elizabeth K. Dillon by Senator Grassley... 892 ANSWERS Responses of Hon. Joan Marie Azrack to questions submitted by: Senator Cruz................................................. 909 Senator Grassley............................................. 903 Responses of Loretta Copeland Biggs to questions submitted by: Senator Cruz................................................. 918 Senator Grassley............................................. 911 Responses of Michael P. Botticelli to questions submitted by: Senator Feinstein............................................ 945 Senator Grassley............................................. 930 Senator Hirono............................................... 942 Responses of Elizabeth K. Dillon to questions submitted by: Senator Cruz................................................. 927 Senator Grassley............................................. 920 LETTER RECEIVED WITH REGARD TO HON. JOAN MARIE AZRACK American Bar Association, September 22, 2014, letter............. 952 LETTER RECEIVED WITH REGARD TO LORETTA COPELAND BIGGS American Bar Association, September 22, 2014, letter............. 954 LETTERS RECEIVED WITH REGARD TO MICHAEL P. BOTTICELLI Alliance for Children and Families et al., October 23, 2014, letter......................................................... 977 American Medical Association (AMA), November 12, 2014, letter.... 995 American Psychiatric Association (APA), October 8, 2014, letter.. 968 American Society of Addiction Medicine (ASAM), September 4, 2014, letter......................................................... 958 Association for Medical Education and Research in Substance Abuse (AMERSA), November 11, 2014, letter............................ 994 Beletsky, Leo, J.D., M.P.H., November 9, 2014, letter............ 987 Center for Children and Family Futures, October 15, 2014, letter. 974 Community Anti-Drug Coalitions of America (CADCA), September 19, 2014, letter................................................... 964 Faces and Voices of Recovery (FAVOR), November 5, 2014, letter... 985 Harm Reduction Coalition, November 12, 2014, letter.............. 996 Legal Action Center, November 10, 2014, letter................... 989 Lines for Life, November 10, 2014, letter........................ 991 Major County Sheriffs' Association (MCSA), November 12, 2014, letter......................................................... 998 McAdams, Hon. Ben, Mayor, Salt Lake County, Utah, October 13, 2014, letter................................................... 973 National African American Drug Policy Coalition, Inc. (NAADPC), November 11, 2014, letter...................................... 971 National Association for Alcoholism and Drug Abuse Counselors (NAADAC), October 31, 2014, letter............................. 981 National Association for Children of Alcoholics (NACoA), November 7, 2014, letter................................................ 986 National Association of County and City Health Officials (NACCHO), September 16, 2014, letter..................................... 963 National Association of Drug Court Professionals (NADCP), September 24, 2014, letter..................................... 965 National Association of Psychiatric Health Systems (NAPHS), October 16, 2014, letter....................................... 975 National Association of State Alcohol and Drug Abuse Directors, Inc. (NASADAD), September 9, 2014, letter...................... 959 National Council on Alcoholism and Drug Dependence, Inc. (NCADD), September 29, 2014, letter..................................... 967 National Council for Behavioral Health, September 11, 2014, letter......................................................... 962 National Criminal Justice Association et al., November 4, 2014, letter......................................................... 984 National District Attorneys Association (NDAA), October 30, 2014, letter......................................................... 980 National Family Partnership (NFP), November 10, 2014, letter..... 993 Partnership for Drug-Free Kids, September 26, 2014, letter....... 966 Partnership for Drug-Free Kids et al., November 10, 2014, letter. 992 Phoenix Multisport, September 10, 2014, letter................... 961 Sanford, Catherine ``Kay,'' MSPH, November 10, 2014, letter...... 988 Swanson, Richard R., Ph.D., November 3, 2014, letter............. 983 University of Vermont, Collegiate Recovery Community, October 8, 2014, letter................................................... 970 Vermont Recovery Network, October 17, 2014, letter............... 976 Zwick Healthcare Consultants, LLC, November 2, 2014, letter...... 982 LETTER RECEIVED WITH REGARD TO ELIZABETH K. DILLON American Bar Association, September 22, 2014, letter............. 956 MISCELLANEOUS SUBMISSIONS FOR THE RECORD Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New York, prepared statement with regard to Hon. Joan Marie Azrack, Nominee to be District Judge for the Eastern District of New York........................................................... 1000 Kaine, Hon. Tim, a U.S. Senator from the State of Virginia, prepared statement with regard to Elizabeth K. Dillon, Nominee to be District Judge for the Western District of Virginia............ 1004 Markey, Hon. Edward J., a U.S. Senator from the State of Massachusetts, prepared statement with regard to Michael P. Botticelli, Nominee to be Director of National Drug Control Policy......................................................... 1005 Warner, Hon. Mark R., a U.S. Senator from the State of Virginia, prepared statement with regard to Elizabeth K. Dillon, Nominee to be District Judge for the Western District of Virginia...... 1002 C O N T E N T S ---------- DECEMBER 10, 2014, 10:11 A.M. STATEMENTS OF COMMITTEE MEMBERS Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 1015 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1009 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1007 prepared statement........................................... 1098 STATEMENTS OF THE NOMINEES Witness List..................................................... 1031 Lee, Michelle K., Nominee to be Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office............................................... 1011 biographical information..................................... 1032 prepared statement........................................... 1093 Marti, Daniel Henry, Nominee to be U.S. Intellectual Property Enforcement Coordinator, Executive Office of the President..... 1010 biographical information..................................... 1072 prepared statement........................................... 1096 QUESTIONS Questions submitted to Michelle K. Lee by: Senator Coons................................................ 1106 Senator Durbin............................................... 1103 Senator Grassley............................................. 1110 Senator Hatch................................................ 1113 Senator Leahy................................................ 1100 Questions submitted to Daniel Henry Marti by: Senator Coons................................................ 1109 Senator Durbin............................................... 1105 Senator Grassley............................................. 1112 Senator Leahy................................................ 1101 ANSWERS Responses of Michelle K. Lee to questions submitted by: Senator Coons................................................ 1133 Senator Durbin............................................... 1129 Senator Grassley............................................. 1140 Senator Hatch................................................ 1146 Senator Leahy................................................ 1126 Responses of Daniel Henry Marti to questions submitted by: Senator Coons................................................ 1123 Senator Durbin............................................... 1120 Senator Grassley............................................. 1114 Senator Leahy................................................ 1117 LETTERS RECEIVED WITH REGARD TO MICHELLE K. LEE Application Developers Alliance, December 5, 2014, letter........ 1157 Asian/Pacific Islander American Chamber of Commerce and Entrepreneurship (ACE), December 1, 2014, letter............... 1167 Davies, Susan M., et al., November 14, 2014, letter.............. 1160 Engine Advocacy, October 28, 2014, letter........................ 1158 Imada, Bill, December 1, 2014, letter............................ 1151 International Trademark Association (INTA), November 5, 2014, letter......................................................... 1159 National Asian Pacific American Bar Association (NAPABA), December 1, 2014, letter....................................... 1153 Takayasu, Sach, December 1, 2014, letter......................... 1149 LETTERS RECEIVED WITH REGARD TO DANIEL HENRY MARTI American Intellectual Property Law Association (AIPLA), November 10, 2014, letter............................................... 1173 Copyright Alliance, November 14, 2014, letter.................... 1174 CreativeFuture, November 20, 2014, letter........................ 1176 Entertainment Software Association (ESA), December 9, 2014, letter......................................................... 1179 Hispanic Bar Association of the District of Columbia (HBA-DC), November 10, 2014, letter...................................... 1177 International AntiCounterfeiting Coalition (IACC), January 8, 2015, letter................................................... 1169 International Trademark Association (INTA), November 5, 2014, letter......................................................... 1171 Motion Picture Association of America, Inc. (MPAA), November 7, 2014, letter......................................................... 1172 National Music Publishers' Association (NMPA), October 31, 2014, letter......................................................... 1170 United States Chamber of Commerce, December 9, 2014, letter...... 1180 ALPHABETICAL LIST OF NOMINEES Alonso, Hon. Jorge Luis, Nominee to be U.S. District Judge for the Northern District of Illinois.............................. 5 Azrack, Hon. Joan Marie, Nominee to be U.S. District Judge for the Eastern District of New York............................... 677 Biggs, Loretta Copeland, Nominee to be U.S. District Judge for the Middle District of North Carolina.......................... 678 Blakey, John Robert, Nominee to be U.S. District Judge for the Northern District of Illinois.................................. 6 Botticelli, Michael P., Nominee to be Director of National Drug Control Policy................................................. 679 Burroughs, Allison Dale, Nominee to be U.S. District Judge for the Northern District of Massachusetts......................... 395 Davidson, Jeanne E., Nominee to be Judge of the U.S. Court of International Trade............................................ 396 Dillon, Elizabeth K., Nominee to be U.S. District Judge for the Western District of Virginia................................... 679 Gilliam, Haywood Stirling, Jr., Nominee to be U.S. District Judge for the Northern District of California........................ 397 Lee, Michelle K., Nominee to be Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office............................................... 1011 Marti, Daniel Henry, Nominee to be U.S. Intellectual Property Enforcement Coordinator, Executive Office of the President..... 1010 Mazzant, Hon. Amos L., III, Nominee to be U.S. District Judge for the Eastern District of Texas.................................. 6 Mehta, Amit Priyavadan, Nominee to be U.S. District Judge for the District of Columbia........................................... 398 Pitman, Robert Lee, Nominee to be U.S. District Judge for the Western District of Texas...................................... 7 Schroeder, Robert William, III, Nominee to be a U.S. District Judge for the Eastern District of Texas........................ 8 NOMINATIONS OF HON. JORGE LUIS ALONSO, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; JOHN ROBERT BLAKEY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; HON. AMOS L. MAZZANT, III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS; ROBERT LEE PITMAN, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS; AND ROBERT WILLIAM SCHROEDER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS ---------- TUESDAY, SEPTEMBER 9, 2014 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin, presiding. Present: Senators Cornyn and Cruz. OPENING STATEMENT OF HON. DICK DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS Senator Durbin. The Judiciary Committee will come to order. We will consider five highly qualified nominees to the Federal bench. They are Jorge Luis Alonso, who has been nominated to be a District Judge for the Northern District of Illinois; John Robert Blakey, also nominated for the Northern District of Illinois; Amos L. Mazzant, III, nominated for the Eastern District of Texas; Robert William Schroeder, III, also nominated for the Eastern District of Texas; and Robert Lee Pitman, nominated for the Western District of Texas. At these hearings, it is traditional for nominees to be introduced before the Committee by Senators from their home States. I will note that the Ranking Member will soon join us. We are going to proceed with introductions. I am going to start by introducing Jorge Alonso from Illinois, and then turn to my colleague, Senator Mark Kirk, who will introduce Jack Blakey. My colleagues from Texas, when they arrive, will make their introductions. I am pleased to introduce Judge Jorge Alonso before this Committee. Judge Alonso has been nominated to fill the vacancy in the Northern District of Illinois that will be opening up on November 16, when Judge Ronald Guzman takes senior status. Since 2003, Judge Alonso has served as an Associate Judge for the Cook County Judicial Circuit. Currently in his third appointed term, he presides over felony cases at the Cook County Criminal Court Building. As a State trial court judge, Judge Alonso has presided over hundreds of cases that have gone to verdict or judgment, including at least 88 jury trials. He also presides over the Women's Justice Mental Health Call in Cook County. Judge Alonso helped to create this program and it provides intensive support and services to women in the justice system who have suffered from trauma and addiction. Prior to serving as a State court judge, Judge Alonso served for 12 years as an Assistant Public Defender in Cook County. He initially handled civil proceedings in the Child Protection Division of the Public Defender's Office, and later worked in the Juvenile Justice Division and the Felony Trial Division. As a public defender, he participated in approximately 30 jury trials and 150 bench trials. In addition to his substantial courtroom and judicial experience, he has an admirable record of service in the Chicago community. Among his activities, he serves on the boards of the Daniel Murphy Scholarship Fund, providing scholarships and support to low-income Chicago students, and the Cristo Rey Jesuit High School in Chicago's Pilsen neighborhood. He also works as judicial interviewer with the Lawyers Assistance Program, which assists members of the bar who are struggling with mental health or addiction issues. Judge Alonso received his undergraduate degree from the University of Miami and his law degree here at the George Washington University Law School. To put it simply, Judge Alonso is an outstanding nominee. He has the experience, the integrity, and the judgment to be an excellent Federal Judge. In Illinois, we have a bipartisan process which Senator Kirk and I have initiated to select judicial candidates and send their names to the White House. Under the system, I recommended Judge Alonso for the Federal bench. I thank my colleague, Senator Kirk, for signing a blue slip signaling his support for that nomination. Judge Alonso has a few more supporters in the audience. I think I will let him acknowledge them when he comes to the table, but we are glad that the entire family is here today. I am going to turn to my other colleagues to introduce nominees and since Senator Kirk was not only prompt, but early, I am going to recognize him at this point. Senator Mark Kirk. PRESENTATION OF JOHN ROBERT BLAKEY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, BY HON. MARK KIRK, A U.S. SENATOR FROM THE STATE OF ILLINOIS Senator Kirk. Thank you, Mr. Chairman. I am here to recommend and to thank you and President Obama for bringing forward Jack Blakey. I am going to focus on Jack Blakey because it is a twofer. We are getting Jack and his dad. His father, Robert Blakey, worked for Senator McClellan of Arkansas in the late 70s and wrote the RICO Statute. If there is any State in the Union that needs experts on RICO, it is Illinois. I just would thank you for having--I would say with Jack Blakey we are putting a guy on the bench who is an experienced Shakespearean actor who even performed in London--90 trials all the way to the end, including bench and jury trials. He is working for Anita Alvarez in a very senior leadership position in Cook County, Illinois, a place you would know very well. With that, I will conclude then. Thank you, Mr. Chairman. Senator Durbin. Senator Kirk, thank you very much. Mr. Blakey, thank you for being here and you will have an opportunity to introduce your family when you are called. The other nominees are from the great State of Texas. Who is here to speak on their behalf but Senator John Cornyn. Take it away, Senator. OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. Thank you, Mr. Chairman. I like the way you said ``Great State of Texas.'' We agree. I want to thank the Chairman for convening this hearing. We have before us five nominees for the Federal bench, three of whom have been nominated to fill vacancies in Texas. I want to congratulate each of those nominees and their families for this great honor. I know you traveled a long way and endured a lot of paperwork and other scrutiny to get where you are. I want to just introduce these three nominees briefly. Magistrate Judge Amos Mazzant is a fixture in the bar in Sherman, Texas in the Eastern District. He graduated from the University of Pittsburgh and Baylor Law School, and remained in Texas after that. From 1990 to 1992, Judge Mazzant clerked in Sherman for U.S. District Judge Paul Brown. Since then he has made his legal career there, including serving for the last 5 years as a Federal Magistrate. If confirmed, Judge Mazzant will serve in the courthouse named for Judge Brown. Robert Pitman is our U.S. Attorney in the Western District of Texas. He has graduated from Abilene Christian University and University of Texas Law School, and then clerked for a Federal Judge. Before assuming his current role, Mr. Pitman served for many years as a Federal Prosecutor and Magistrate in the Western District. He has earned accolades for his work at every level, as well as the support of the local bar. I was proud to support Robert for U.S. Attorney, and I am proud to support him for the nomination at the Federal bench. Trey Schroeder is a litigator in private practice in Texarkana, Texas. I understand he is not a native Texan, but we have always taken converts and people who got there as fast as they could. He graduated from the University of Arkansas and American University's Washington College of Law. Since then he has had a distinguished career, including work in the Office of the Counsel to President, and as a law clerk on the U.S. Court of Appeals for the Eighth Circuit. He is currently a partner at Patton, Tidwell and Schroeder, and his reputation in Texarkana is stellar. Each of these three nominees are lawyers of the highest caliber and the kind of individuals who should serve on the Federal bench. That is no surprise because like your process, Mr. Chairman, we have a bipartisan Federal Judicial Evaluation Committee that has scrutinized these nominees and done an outstanding job in making these recommendations to Senator Cruz and myself, and working with the White House to get these nominations where they are today. The FJEC, as we call it, is a bipartisan blue ribbon panel of some of the best lawyers and judges in the State of Texas. They provide input on applicants to the Federal bench and we work closely with the White House, as I said, to ensure that the nominees in our State are the kind of men and women who deserve the honor of these important jobs and lifetime tenure that goes along with it. I want to thank our volunteers who serve on the FJEC and the White House Counsel's Office for their work with our offices on these nominations. I am proud of the work that the FJEC has done and the quality of these nominees. I look forward to hearing from all of them. Thank you. Senator Durbin. Thanks, Senator Cornyn. I will ask the staff to put the name tags before the chairs so each nominee will see where they are to approach in just a moment. For the record, all of these nominees have gone through an extensive process, an application, which is voluminous and then review by committees in Illinois and Texas in this circumstance. They have answered scores and scores of questions about their background. So if the questioning today is brief, it is not an indication that we think there is little to be asked. A lot has all ready been asked and answered. We will start by asking the nominees to each approach the table and stand for a moment while I administer the oath customary of the Committee. Raise your right hand. Do you affirm the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Alonso. I do. Mr. Blakey. I do Judge Mazzant. I do. Mr. Pitman. I do. Mr. Schroeder. I do. Senator Durbin. Thank you. Let the record reflect that all five of the witnesses and nominees have answered in the affirmative. We are going to give each of you a chance to say a few words by way of opening, and start with Judge Alonso. STATEMENT OF HON. JORGE LUIS ALONSO, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS Judge Alonso. Thank you, Senator. I would like to start by thanking the Committee, the entire Committee for convening this meeting. I would like to thank the Chairman, the Ranking Member, and I would also like to thank you, Senator Durbin. I would like to thank you for presiding and chairing today. I would also like to thank you for your gracious introduction, as well as, of course, for your recommendation and all of your support. Of course, I would like to thank President Obama for this incredible honor of the nomination. I do have family with me here today, as you alluded to. I have my wonderful wife here, Amee Alonso, of 15 years. My amazing daughters are here, Lila, Ursula, and Lulu. They are here. They are in eighth grade and sixth grade, and they have sacrificed a couple of days to be here. I have got my mother here from Florida, Ursula Alonso, and I would like to thank her for being here. I am so happy she is here. And I would like to thank her for her support, her guidance throughout all of these years. I would be remiss if I didn't mention my father. We lost my father some years ago, Pedro Alonso, but I would like to have his name inserted in the record. And he would be thrilled to be here, as thrilled as my mother is and the rest of my family. Also here from Arizona are my wonderful in-laws, Robert and Rosemarie Orlick. He is a retired engineer and a Korean War Veteran. I have family that couldn't make it here today that is watching on the webcast and supporting me. I would like to acknowledge my brother, Jose Alonso, who is an attorney in Florida; my sister and her family, Dr. Susanna and Steven Barski, and their wonderful daughters, Elia and Emily. And in Arizona I have my sister-in-law and her family, Drs. Kathy and Douglas Little. He is also a Colonel in the National Guard and they have four wonderful children, Christopher, the oldest that we are all very proud of, and the rest, AJ, Alexandra, and Brendan who, of course, we are also proud of. I would also like to just acknowledge all the support back in Chicago, back home from my legal family, all of the hardworking professionals that I have been fortunate enough to serve with over the last 10 years, plus all of my fellow judges in Cook County, all of the hardworking lawyers, and all of the other individuals that have always supported me, clerks, sheriffs, court reporters, interpreters, probation officers. Thank you very much. [The biographical information of Judge Alonso appears as a submission for the record.] Senator Durbin. Thank you, Judge. Mr. Blakey. STATEMENT OF JOHN ROBERT BLAKEY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS Mr. Blakey. Thank you, Mr. Chairman. Thank you for presiding today. Thank you for your support and all of your hard work on behalf of the Committee. Thank you too, Senator Cornyn, for being here today. I would like to thank the President and Senator Kirk. I am humbled by their confidence in me and I appreciate their kind words and support. With me today is my wife, Christina. We have been married almost 20 years and she certainly is a good example of good judgment on my behalf in choosing to ask her to marry me. My father is here, Professor G. Robert Blakey. My father- in-law, Dan Saracino, is also here. And my four boys, Joseph Blakey, Charlie Blakey, Daniel Blakey, and George Blakey are all here as well. And a dear friend of mine, Steve Nagorski, is also here. He lives in the Washington area. My brother Michael and my sisters, Liz, Marie, Katie, Christie, and Megan are all watching from home. They are here in spirit. And my brother Matt and my mother have passed, but are also here in spirit. I look forward to the questions from the Committee and thank you very much. [The biographical information of Mr. Blakey appears as a submission for the record.] Senator Durbin. Thank you. Judge Mazzant. STATEMENT OF HON. AMOS L. MAZZANT, III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS Judge Mazzant. Thank you, Senator, and I want to thank the Committee for convening the hearing. I want to thank the President for the honor of this nomination. I want to thank Senator Cornyn for his kind introduction, as well as both Senator Cornyn and Cruz for recommending me to the President. And I want to thank the Senators Federal Judicial Evaluation Committee for recommending me to the Senators. I have a large number of family that made the trip here today. If you will indulge me, I will introduce them. The love of my life, my wife Michelle of 24 years. She is a kindergarten teacher in Sherman. My daughter, Caitlin would have loved to have been here, but she is starting her freshman year at Texas A&M and is watching via the webcast. My younger daughter, Alex is here. She is missing high school. She is a junior at Sherman High School. My sisters are here, Cynthia Mazzant and Jim Colbert. My younger sister Kristina Mazzant-Thorpe, and my nephew Zach. My brother-in-law, Sam, is watching via webcast, as is my niece, Taylor, who is also in college. My father would have loved to have been here, but he and my stepmother, Amos and Cookie Mazzant, are watching via the webcast in Florida. And my brother Matt is--hopefully--he said he would get up to watch from California, early. We will see if he did or not later. I have wonderful in-laws. They are here, Jeanne and Bill Melfi; my brother-in-law, Todd and Melissa Melfi. My wife's aunt Rosemarie Melfi is here. My wife's Uncle Donnie and Aunt Jackie Melfi are here as well, as well as her cousin Marilyn Coleman. I also have some of my staff members here, Terri Scott, my judicial assistant, as well as Debbie McCord, my courtroom deputy and my career law clerk is watching via the webcast. I have a number of lawyer friends that actually showed up too, and I will just say their names really quickly, Alienne Durrett, Bret Johnson, Kimberly Preist-Johnson, Roger Sanders, Clyde Sigman, Judge Carol Sigman, all from Sherman or Dallas, as well as Jim Carter who is from here in Washington, DC. I would also like to acknowledge the judges of the Eastern District who have been so supportive of me in this effort. I want to acknowledge my mother who passed away 13 years ago, but is here in spirit. And then finally, I would like to just recognize Judge Paul Brown who was my mentor and hired me as a law clerk and changed my career 24 years ago, and we have several other law clerks here that are in attendance. And I thank you. [The biographical information of Judge Mazzant appears as a submission for the record.] Senator Durbin. Thank you very much. Mr. Pitman. STATEMENT OF ROBERT LEE PITMAN, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS Mr. Pitman. Thank you Chairman Durbin, Senator Cornyn. I appreciate this opportunity to appear before you today. I especially would like to thank Senator Cornyn for his generous introduction and for his longstanding support. I would like to thank both Senator Cornyn and Senator Cruz for submitting my name to the President. And, of course, I would like to express my appreciation to President Obama once again for the proud honor of a nomination. The opportunity to serve as U.S. Attorney has been the greatest honor of my life, and I am humbled beyond words now to be considered for appointment to the bench. I would like to acknowledge several family members and friends who are with me here today. Joining me today is David Smith, on whose support, and encouragement, and wisdom I have relied for over 20 years now. Of my four brothers and sisters, one is with me today, my eldest brother, Tim and his wife, Echo. The youngest of five kids, I owe much to the guidance and love--albeit sometimes tough love--of my elder siblings and I appreciate so much their support throughout the process. Echo's daughter, Rebecca Beyer, has joined us from New York today. I am also very honored to have today supporting me, several friends who have come from Texas. They are really like family to me, and they have supported me, again, throughout this process, John Dalton and Marilyn and Lex Henderson. Finally, Mr. Chairman, I would like to recognize, for the record, the outstanding men and women of the U.S. Attorneys Office for the Western District of Texas with whom it has been my honor to serve and who I believe represent the very best of public service. Thank you and I appreciate the opportunity to appear today. [The biographical information of Mr. Pitman appears as a submission for the record.] Senator Durbin. Mr. Pitman, would that include your first assistant? Mr. Pitman. That does. My first assistant--for the record, his name is Richard Durbin. [Laughter.] Mr. Pitman. Senator, I figured with a name like that, I couldn't go wrong. Senator Cornyn. No relation, I hope. [Laughter.] Mr. Pitman. He is a graduate of the University of Chicago. Senator Durbin. Mr. Schroeder. STATEMENT OF ROBERT WILLIAM SCHROEDER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS Mr. Schroeder. Thank you, Senator Durbin, for chairing the hearing today and for giving me the opportunity and the privilege to be here. Thank you, as well, Senator Cornyn for being here today. I want to thank Chairman Leahy and Ranking Member Grassley for scheduling the hearing as well as the other Members of the Committee for considering my nomination. I would like to begin by thanking President Obama for nominating me for this position. I am humbled by it. I am grateful to you, Senator Cornyn and Senator Cruz for recommending me to the President and for your support and the support of your staffs throughout this process. Thank you, Senator Cornyn, for your kind and generous words today. I would also like to thank the Senator's Bipartisan Federal Judicial Evaluation Committee for considering my application and for its support of me as well. I am fortunate today to be joined by my family and I would like to introduce them. My parents, Mary and Bill Schroeder are here. Just last month, they celebrated their 50th wedding anniversary. They are two of the finest, hardest working people I know, and I owe so much to both of them for their love and support. My mother-in-law, Nancy DeLamar, the best mother-in-law one could hope for, and I am glad that she is here today. My daughters, Eleanor and Francis are here. Their birthdays were last week. They turned 15 and just started as freshmen at Texas High School in Texarkana. Their mother and I are very proud of them and the fine young women that they are becoming. I would be remiss if I did not also tell you that they are both excellent soccer players. Finally, my wife, Megan--we were married 20 years ago this summer. And as Senator Cornyn sometimes says about himself, Megan is a recovering lawyer herself and I can assure you that she is the smartest lawyer at our house. She is my best friend and the love of my life. I also have a couple of friends that I would like to briefly acknowledge. My lifelong friend, Brad Davis, came from Little Rock and I am glad to have him here. We have been friends for more than 45 years. One of my law partners, Kelly Tidwell, is here with his son, Hutch, who is a tenth grader, also at Texas High School. And I am glad that they were able to make the trip. I also have several longtime friends from Washington who were able to be here today, and I thank them as well. And finally, friends, other family members, and colleagues from back home watching on the webcast. I appreciate their support. And my thanks to all of you and I look forward to answering your questions. [The biographical information of Mr. Schroeder appears as a submission for the record.] Senator Durbin. Thanks, Mr. Schroeder. I am going to ask a generalized question to start with. I am going to acknowledge the obvious. None of you would be sitting here today if you didn't have the appropriate legal credentials and experience. And now you are aspiring, for most of you, to a new position in life, at least at the Federal level, to be a judge. In that position, you are going to be called on to use that legal expertise, that experience, in a different way. My experience--in the distant past when I practiced law--was that you were looking for two things when it came to a judge, the right temperament and fairness. I have had a chance, having served here for a few years, to interview a lot of people aspiring to the Federal bench, even to the Supreme Court, and I have found it interesting how many of them would come before me and say, ``Ignore what you read about what I have done in the past. That really has nothing to do with what I will do in the future. I am going to go right down the center stripe of the highway. I used to be left-handed all of my life. I can be right-handed too. I can do whatever it takes to make sure that we apply the law fairly and accurately and so forth and so on.'' Most of the time as I observe their records afterwards it, it turns out to be less than truthful. What we are today is what we were and what we learned in our life experience. So I would like to ask each of you--for three of you there is a life experience as a defender, as a prosecutor, and other experiences. You have been in courtrooms, all of you, many times in the fray representing litigants, prosecuting, defending, some clerking for the judges who are observing this process and trying to come to a fair outcome. I would like to have each of you comment on these two basic ideas of temperament in judges and fairness, what you have observed and the standard you would hold yourself to. Judge Alonso, start. Judge Alonso. Thank you, Senator. In terms of temperament, Senator, what I have tried to do over these past 11 years is I have always tried to make sure that I am kind and respectful to everyone that appears before me, litigants, attorneys, all of the parties. I try to practice restraint at all times. It is my sense that as judges we have to control the courtroom, but I feel that if you can't control your own emotions, it is very, very difficult to control the courtroom or the emotions of other people that appear in front of you. It is my feeling that they take their cue from you as the judge in the courtroom. I try always to be humble and I also try always to be patient. I think that is a very important trait. I think only when we are patient can we make sure that everyone feels like they have had their say and have been heard. Senator Durbin. Mr. Blakey, your background is largely as a prosecutor. And to put it in context, if I am an impoverished criminal defendant, minority, standing before you as my judge, do I have a chance? Mr. Blakey. Thank you for the question, Senator. Of course. As a public servant for over 20 years, having done both criminal and civil, having done prosecution and some criminal defense issues, some issues with respect to being a law clerk, I have always been committed--no matter who my client was--to the rule of law. And if I am fortunate enough to be confirmed, I would bring that to the bench and I would have not only the temperament to apply the law fairly and to give dignity to each person who came into the room, I would do it impartially. I would never put my finger upon the scales of justice for any party, whether it be the government or any particular litigant. I would listen. I would be humble. And I would be patient because in humility and patience and listening comes very good results. It allows a person not only to know that they have been heard, but that they have been understood. Senator Durbin. Mr. Mazzant, I don't know the judges that you have clerked for and worked with, but you have certainly observed it from that side of the courtroom. What are your thoughts on this? Judge Mazzant. Thank you, Senator, for the question. I have had a great role model with Judge Paul Brown. He epitomized what a good judge would be, followed the rule of law, had a great temperament, treating everyone with respect. When I became a judge 10 years ago, and I served both as a State judge and a magistrate judge for the last 5 years--I followed that example, following that rule of law and treating everybody that came before me with respect and fairness. And if I am lucky enough to be confirmed, I would follow that same pattern. Senator Durbin. Mr. Pitman, as a U.S. Attorney, tell me how you view your future role on the bench. Mr. Pitman. Senator, having been an Assistant State's Attorney and now a U.S. Attorney, I have certainly had the role as an advocate, but I have made this transition before from being an advocate to being a United States Magistrate Judge. Making that transition from prosecutor to being a judge, although it is a shift, it is somewhat different than being another kind of advocate that goes to the bench because a Federal prosecutor has the obligation of being an advocate, but also of doing justice. And so I think because that has been an added dimension of the job that I have had throughout my career as an advocate, I have appreciated the fact that a big part of that job was to be a gatekeeper and to watch out for people's rights even if they were on the other side of the docket. I did that, I believe, successfully when I made the transition to be a United States Magistrate Judge. And I pledge to you that I will understand the difference between being an advocate, and I will understand that as a judge I will need to be not only an impartial and neutral arbiter, but to be seen and perceived as that. Senator Durbin. Thank you. Mr. Schroeder. Mr. Schroeder. Thank you for the question, Senator Durbin. I have had a diverse legal career. I had a couple of years clerking for Judge Richard Arnold on the Eighth Circuit Court of Appeals which was an amazing experience for me. He had a profound commitment to the rule of law, and I learned so much from him about the importance of preparation and the importance of hard work, the importance of being kind and courteous to litigants and counsel. I had a few years working in the executive branch here in Washington, and I have had 15 years of private practice in Texarkana. My experience and the judges in both State and Federal court that I have appeared before that I most admired were well prepared, thoughtful, careful, people of modesty and humility who recognize their role in the process and who recognize that their role as the judge was an important role, but a limited role. And their job and obligation was to carefully consider the facts and apply the law to the facts of each case, approaching each case fairly, impartially, and with an open mind. And that is the kind of judge I would try to be. Senator Durbin. Thank you and I find it interesting how many of you have used the word ``humility.'' Humble is one of the first words that comes to mind when you say ``United States Senator.'' [Laughter.] Senator Durbin. We have a lot to be humble about, I guess. I acknowledge the presence of Senator Cruz and I will recognize him immediately after Senator Cornyn. Senator Cornyn. Well, thank you, Mr. Chairman. Mr. Schroeder, you mentioned the fact that I was a recovering lawyer, and as you know, I also spent 13 years on the State bench, so I admit to being a recovering judge as well. [Laughter.] Senator Cornyn. I agree 100 percent with what Senator Durbin said about we are all a product of our background and upbringing and probably what we will do in the future--the best indicator of that is what we have done in the past, but I also would want to stress what some of you have acknowledged is that your role as an Article III Federal District Judge is different from any role that you have held in the past. I know for the three nominees from Texas, you have gone through a very extensive vetting process, FBI background check, you have got public records that have been examined closely and, as we said, to the FJEC's bipartisan evaluation. I feel like I know a lot about each of you, and it is because of the confidence that I have that I was very comfortable recommending to the President each of you be nominated for these positions. So I don't have a lot of questions, but I just want to ask each of you--my experience has been that what litigants want, what people who come into court want are basically three things. They want somebody who will listen, somebody who will treat them respectfully, and somebody who will follow the law. I will start with you, Mr. Alonso, and we will go down the line. Would each of you agree with that or disagree? And if you agree with it, will you do it? Judge Alonso. I agree with it. I think that is a great top three. There are many skills that are necessary and that come into play, but that is a great start, very important traits. I have tried over the last 11 years to operate exactly that way, and so happily in my case, you have my assurances, of course, that I will continue to do that. Also we have, hopefully, the evidence of the job that I have tried to do over these last 11 years as a judge in Cook County. Senator Cornyn. Thank you. Mr. Blakey. Thank you, Senator. Yes, I agree with you emphatically. I believe that listening is perhaps one of the key ones that you mentioned. Listening and engaging the attorneys to find the critical legal and factual turns of a case is critically important not only in getting a good result, but getting the nuance of the result and the basis for the result correct and for avoiding unjust results or unnecessary costs or delay. So I agree with you completely. Judge Mazzant. Thank you, Senator. I agree with you wholeheartedly and that is something that as a judge for the last 10 years, as the magistrate judge sitting in Sherman for the last five, that is what I try to do every single day with every case, to follow those three precepts you set out. Mr. Pitman. Senator, of course, I do agree with that. I would add that it has often occurred to me as a judge and someone who has practiced in Federal court all of my career, that with life tenure comes a reciprocal obligation to treat people respectfully, to have a strong work ethic and then to respect the law because you are the face of the justice system. And I pledge to you that I will do as I have done previously in my career and be the judge that you have described. Mr. Schroeder. Thanks for the question, Senator Cornyn. I do agree with that and that is exactly the kind of judge I would hope to be. Senator Cornyn. If there was one other trait I would mention, it would be patience. Because some of you have alluded to the fact that with life tenure, sometimes people lose their patience. They develop what is commonly called in the profession ``robotis,'' which is a dangerous disease that judges sometimes get. When you don't have to stand for election, and you are basically insulated from the kind of accountability that most other public officials have, sometimes that can lead you down the wrong path. But I feel confident based on the knowledge that I have that certainly the Texas nominees--I take the other nominees at their word that they will do those things, listen, be respectful, follow the law, and hopefully demonstrate patience and not develop that dreaded case of ``robotis.'' I just have one other question for all of you. I would like to go down the row again. As a trial judge, do you believe that is your responsibility to follow binding precedent by the Court of Appeals and the U.S. Supreme Court, or do you feel like you have some license or authority to make new law as a lower court judge? Judge Alonso. I feel that it is the job of the trial judge to be bound and to follow the precedent that is set out by, in our case if I was fortunate to be confirmed, the Seventh Circuit and, of course, the Supreme Court of the United States. Mr. Blakey. Yes, Senator, Federal courts are very important courts, but they are courts of limited jurisdiction and they have a role to play within divided government, and part of that is that each member of the judiciary plays its role within the framework that the framers have laid down. And binding precedent and the authority of a superior court is critical to the functioning of the judicial system. I agree completely. Judge Mazzant. Thank you, Senator. I also agree with my fellow nominees. As a magistrate judge, I am bound by the authority of the Fifth Circuit and the Supreme Court and that is what I do every day in my job currently. Mr. Pitman. Senator, I do believe that is the role of a district judge to follow precedent, and I pledge to you that if confirmed, I will adhere to the precedent of the Supreme Court and Fifth Circuit as I engage in the activities of judging. Mr. Schroeder. Senator, I likewise agree. I think following precedent is what brings stability and predictability to our legal system and our system of justice and I would be strictly bound by the Supreme Court and the Fifth Circuit. Senator Cornyn. Mr. Chairman, I am happy to yield to Senator Cruz who has joined me in making these recommendations for the three judges from Texas to the President. Senator Cruz. Thank you, Mr. Chairman. Gentlemen, let me congratulate each of the five of you on your nominations. I would note for the three nominees from Texas, that as Senator Cornyn made reference, you have been through a vigorous process beginning with extensive review and interviews by the Federal Judicial Evaluation Committee which is a bipartisan committee that Senator Cornyn and I have formed together consisting of some of the most highly respected lawyers throughout the State of Texas in a variety of fields of practice, geographically diverse, and consciously bipartisan to reflect that the bench is not supposed to be a partisan endeavor. Upholding the rule of law and taking the oath as an Article III judge requires a degree of confidence, a degree of fidelity of law that should cut across party lines. So I want to commend each of the three of you from Texas because you would not be here had each of you not very much impressed the members of that committee and had you not very much impressed both Senator Cornyn and myself. We have had the opportunity to visit with all three of you. You have impressive professional credentials and a long career demonstrating the fidelity to law that we expect from our judges. It is obviously a unique and critically important responsibility that we entrust upholding the law to a relatively small number of men and women who take an oath to do so. What I would like to ask each of the five of you is a couple of questions. The first of all, simply how would you describe your judicial philosophy? Judge Alonso. Thank you, Senator. I would describe my judicial philosophy as always being open-minded, fair, patient, always listening until the end, always making sure that I am not guessing what is going to come next. I wait with an open mind and I exercise my judgment fairly and evenhandedly. Mr. Blakey. Thank you for the question, Senator. I would characterize my philosophy as a devotion to the law, a devotion to the role that we play in society, that limited role, but important role. In a variety of contexts, a great deal of power is given, and to those who are given power, much is expected. And I would apply law to the facts presented and I would do it impartially with a great deal of hard work. Judge Mazzant. Thank you, Senator, for your nice remarks about the Texas nominees. My judicial philosophy is one that I am bound to adhere to the rule of law, that I am going to impartially consider the facts of the case, apply precedent to those facts, and make a decision without any regard to any personal views or feelings I might have. And that is what I have done as a magistrate judge. Mr. Pitman. Senator, at the risk of repeating, I will reiterate that I believe that the judicial philosophy appropriate for district judge is faithful adherence to the rule of law and to the precedent of the Supreme Court and the Fifth Circuit. And I assure you that that is the philosophy that I will follow as a district judge if confirmed. Mr. Schroeder. Thank you for the question, Senator. I think that the role of the judge is to fairly and impartially decide cases with the impartial application of the rule of law. As I said before, I think that the role of the judge is limited. It is important, but limited. Judges don't make law. They decide concrete disputes in front of them, one case at a time with attention to the facts and the arguments of the parties, and by applying the law and precedent to those facts. And that is the type of judge I would hope to be. Senator Cruz. Thank you, gentlemen. Let me ask one additional question. Again, to all five of you, which is how would you define judicial activism and how would you characterize the responsibility of a judge to avoid engaging in judicial activism? Judge Alonso. Thank you, Senator. I think that an activist judge would be a judge who does not understand his limited role. I think it is a judge who has an agenda, shall we say, a judge who is deciding a case based on what he or she wants the case to be about. The opposite of that is a judge who exercises humility, who understands this limited role, and who understands that he or she has to decide the issues that are necessary to resolve the dispute that is before that judge at that time. Mr. Blakey. Thank you, Senator. I would define activism, judicial activism as a judge who has not only stepped out of his role as my colleague mentioned, which I agree with fully, but someone who has turned the law to their own purpose rather than serving the purpose of the law. A very smart person can achieve any result if they are willing to give up their service to the law, and I think that is what activism is. You should serve the law, not vice versa. Judge Mazzant. Thank you, Senator. I don't disagree with anything that my fellow nominees said, but I would just add that the simplest way is a judge who makes decisions based on what they feel should be the result is judicial activism. That is not what I would adhere to as a judge, and I will always follow the rule of law, and am bound by that precedent. Mr. Pitman. Again, Senator, at the risk of simply reiterating and repeating, I do understand that term to mean a judge who injects his or her personal beliefs or political agenda into the decisionmaking process. I believe that that is not the role of a judge, and it is not the mode that I would employ in interpreting the law or in engaging in my other duties as a judge. Mr. Schroeder. Thank you, Senator, for the question. I agree with what my fellow nominees have said. I think one way to avoid that result is by focusing on the narrowest issues in the case and deciding the case as narrowly as possible and not deciding things that don't need to be decided. Senator Cruz. Thank you very much, gentlemen. Thank you, Mr. Chairman. Senator Durbin. Gentlemen, I would like to ask a question in the second round. From the beginning of this nation, the drafting of the Constitution, we have grappled with one fundamental issue, many, but this one recurs. The issue of race and justice in America--a Constitution which acknowledged slavery, a nation which as recently as a few weeks ago in Ferguson, Missouri was reminded that it is still a challenge in this modern America despite all the progress that has been made, all the effort that has been put into it. You are seeking an opportunity to serve as a member of the Federal judiciary. It is likely that many of the criminal defendants who come before you will be minorities. It is also likely that many of them feel that this system is rigged against them. Statistics in the past--and they do go back a few years, so they may have changed some--suggest, for example, that out of the 12 or 15 percent minority population in this country, when it comes to arrest for drug crimes, it is 35 percent. When it comes to incarceration for drug crimes, it is 60 plus percent minorities who are being incarcerated. How do you view--and I know you cannot address any specific case, but how do you view this issue in terms of your responsibility and if you wish to step out a little further, and my responsibility on the legislative end of it, when it comes to dealing with establishing or in some cases restoring a sense of fairness in our system of justice when it comes to minorities? Let me start with Mr. Schroeder. This applies as well to Illinois as well as Texas, so I am not singling out any State. It applies to all of us. Mr. Schroeder. Thank you, Senator, for the question. I think you do it one case at a time. I think you approach every case impartially and with an open mind, and you seek to do justice in each case. I think that it is very important that the way you run your courtroom makes clear to everyone that it is a place where everyone is going to be treated fairly and that people who come into the courtroom without regard to their race or their gender or their socioeconomic status or their station in life, that they are going to get a fair shake. Senator Durbin. Let me take this to another level. You may find it incredible that Senator Cruz and I would find agreement on a basic issue, but we have on the Smarter Sentencing Act. In that situation, we are trying to make sure that the mandatory minimum sentencing under the Federal law gives judges more discretion in a specific category of cases, drug offenses that don't involve guns, gangs, or violence, to give more latitude. One of the things that inspired me to move in this direction was the judiciary, judges who came back after applying our laws to their case and saying, ``Senator, this is not fair. It is not just.'' They stepped out of their role as strictly judges and became, at least, commentators on the state of law. So I ask you do you think that is part of your responsibility? Mr. Schroeder. Senator, thank you for the question. I think it is your responsibility to understand the impact that any individual result or judgment has in a case, and I think it is important for you to try to treat everyone fairly and impartially and obviously, I do not have great experience in the criminal field. I have handled 15 to 20 cases over the years. I did a fair amount of work in criminal cases when I was a law clerk and I certainly understand the importance of uniformity in sentencing and I think that is an important goal to be achieved. Senator Durbin. Mr. Pitman, you have had to live with these laws that we've passed here and apply them as a prosecutor. What are your thoughts on this issue of race and justice? Mr. Pitman. Well beyond just that, Senator, I will say that as you know, the Attorney General has proposed and implemented the Smart on Crime Initiatives within the Department. And one of the goals of that is to make sure that we are reserving--the very serious sanctions made available to us under statutes passed by Congress are reserved for the most serious offenders and to scale the tools that we have at our disposal to make sure that the law is enforced. Getting back to your question about the profile of some of the defendants that we deal with, one of my practices as a magistrate judge was before I went out onto the bench, I considered the fact that even if it was a very--what to me was a very routine and perhaps not something that was going to be on the front page of the paper, for the person standing there, it was the most important thing in the world and that it deserved my full attention. So I would make every effort not only to go out and be fair and impartial and to treat everyone the same regardless of their background, but to make sure that they felt that way and they got the message from me that I was taking their problem and their situation seriously. And I will continue to do that if confirmed. Senator Durbin. Judge Alonso, as a criminal judge in Cook County, you have faced many criminal defendants. You know what I am talking about on this issue of race. Judge Alonso. Yes, I do, Senator. I think that in essence, we always have this tension between wanting uniformity across the system in sentencing, but we also want to make sure that the judge has discretion. So at the system, we look at all of these cases and we try to figure out what category they fit in, but it really is an impossible task. Every defendant in a criminal case is different. Every case is different factually. So it is always a challenge to remember that, to treat every case as the most important case and not one of 400 cases, but just that case. I think it is important to have discretion and to trust the judge to exercise that discretion within certain limits, and it appears to me that the recent adjustment in the Federal sentencing provisions lands in a good place, starting with the guidelines, but moving from there and giving more discretion to the judges. I think it is important. I think also that we see across the system more and more talk about restorative justice and helping courts, or problem solving courts. And when we have sentencing provisions that don't allow us to take advantage of that in a situation where we can identify a specific problem and we actually think we can make a difference in this person's life, both to help the defendant and to help us as a society so that there is not recidivism, which is what we are trying to stop. I think it is important to make sure that judge's hands are not handcuffed and that the judge does have discretion in those situations to give the appropriate sentence. Senator Durbin. Mr. Blakey, I recently attended an Innocence Project dinner in Springfield, Illinois where formerly incarcerated people spoke. They had been found to be innocent and had been incarcerated for long periods of time, unjustly. One of them, African American, said, ``They sat me down and they said if you don't plead to this crime, here is what you face. You face the possibility of a mandatory sentence and it is stiff, and you are going to face a jury that may not be friendly to an African American defendant. So do you want to roll the dice here, or would you rather plead to a lesser offense and get this behind you?'' And the man said, ``I have no choice.'' He went to jail for something he had not done. Have you run into this? What are your thoughts on this circumstance? Mr. Blakey. Senator, that is a horrific story and a failure of the role of a prosecutor to be a fair administrator of the law and to do so impartially. I also think it is important in a prosecutorial role to be vigilant with respect to race disparity and the way the criminal justice system is run. In fact, as a Federal prosecutor and as a State prosecutor, I have devoted much time to police corruption and civil rights violations and have done a lot of work in that area. And it is important to do that and to assess each case on an individual basis and have a fresh look and an individual assessment so that each individual is only charged with what they have done and that as a prosecutor that your just sentence is the only sentence that is going to be adhered to. Senator Durbin. Mr. Mazzant, your thoughts on this issue? Judge Mazzant. Thank you, Senator. As to the issue of mandatory minimums, naturally in my purview as a judge, I am not sure that is part of my job, but if this august body would change the mandatory minimums, I will enforce the law as you all change that, if that is changed. As to how I deal with anyone who comes before the court, as a magistrate judge, I do handle the pretrial criminal. So I do all of the initial appearances and the motions prior to trial. I make sure--and my goal would be that anyone who comes before the court, by the time they are finished, they feel they got a fair treatment before the court. And that is what I would try to do. Senator Durbin. I thank you very much. I know there is no easy answer to the questions I have been asking. It is a challenge to us on this side as it is to those on your side of the table to restore that sense of justice and feeling of fairness in our courts across America. We have a lot of work to do. I thank you all for being here today, thank your families for attending at this hearing of the Senate Judiciary Committee. The record is going to remain open for a week. There may be some additional information asked of you or questions sent your way and I hope you can respond in a timely fashion. I thank you all for being here today and the Committee stands adjourned. [Whereupon, at 10:52 a.m., the Committee was adjourned.] [Additional material submitted for the record follows.] A P P E N D I X Additional Material Submitted for the Record [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] NOMINATIONS OF ALLISON DALE BURROUGHS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS; JEANNE E. DAVIDSON, NOMINEE TO BE JUDGE OF THE U.S. COURT OF INTERNATIONAL TRADE; HAYWOOD STIRLING GILLIAM, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA; AND AMIT PRIYAVADAN MEHTA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA ---------- TUESDAY, SEPTEMBER 17, 2014 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:05 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein, presiding. Present: Senators Grassley and Lee. OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. I would like to welcome everyone to this nomination hearing. There are two big announcements today. Today is the 227th anniversary of the signing of the Constitution in the United States in 1778. So it is a big day. It is also a big day for this Committee because the Ranking Member on my right--it is his birthday. [Applause.] Senator Grassley. Thank you. Senator Feinstein. And the rumor mill has told me a story. On every birthday he runs to the Capitol, and it is six miles. This morning--and I am not going to tell you his age because we are very close. [Laughter.] Senator Feinstein. Well, I am not going to tell you his age, but he ran the six miles. That is what really deserves a round of applause. [Applause.] Senator Feinstein. Now we will get down to business. I am pleased to welcome Eleanor Holmes Norton from the House of Representatives to be with us today. Let me make just a brief introduction and then call upon the Ranking Member. We have today three nominees to the United States District Courts, one of them from California, as well as a nominee to the Court of International Trade. So I would like to ask Senator Grassley to make his opening statement and then we will go to those introducing the nominees and then we will go to the nominees. Senator Grassley, happy birthday. Senator Grassley. Thank you very much. Elizabeth Warren sent me a letter yesterday. Senator Feinstein. Oh, she knew. Maybe you are the source of the rumor. Who knows? [Laughter.] Senator Grassley. Anyway. I have no opening statement. We do not believe, at this point, any of these nominees are controversial. You never know until you get through all of these hearings and go through all of the papers and stuff, but right now it looks like no controversy. That is why I do not have an opening statement. Senator Feinstein. Okay. We will go to introductory statements, and if I may if you are not in a rush, I would like to recognize the presence of the Delegate from the District of Columbia. As I said to her privately, we welcome you here. I have followed your career for many, many years and it is a very impressive one. So welcome, and we would be very happy to hear your statement. PRESENTATION OF AMIT PRIYAVADAN MEHTA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA Delegate Norton. Thank you very much, Madam Chair. I will say that following is mutual. Many happy returns, Senator Grassley. I have been told to keep it very short. I agree with Senator Grassley. There should be nothing controversial about, certainly, my nominee. I will say only that Amit Mehta will be the first person of Asian Pacific background in the U.S. District Court for the District of Columbia, and boy what does he come with, magna cum laude graduate from Georgetown, Phi Beta Kappa, University of Virginia Law School, Order of the Coif, clerked on the Ninth Circuit, experienced now as a partner in a major law firm, and before that criminal experience at the renowned public defender service of the District of Columbia. He has got it all. It is a whole package. I strongly recommend him and we would be very proud to have a young able judge like this on our U.S. District Court for the District of Columbia. Senator Feinstein. Thank you very much. Now I would like to recognize the distinguished senator from Massachusetts, Senator Warren. PRESENTATION OF ALLISON DALE BURROUGHS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS, BY HON. ELIZABETH WARREN, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS Senator Warren. Thank you very much, Madam Chairman, and happy birthday Ranking Member. Delightful to be here today. Thank you for holding this hearing allowing me to be here today. I am very pleased to have the chance to introduce Allison Burroughs who has been nominated to fill a judicial vacancy on the District Court for the District of Massachusetts. Ms. Burroughs is joined today by her husband, Mike; her children, Jake and Harry; her sister, Carol; her niece, Haley; and her mother, Rima. I know they are all tremendously proud to have the chance to share this moment with her. Now Ms. Burroughs' nomination came after she was recommended for this position by the Advisory Committee on Massachusetts Judicial Nominations. The Advisory Committee is composed of distinguished members of the Massachusetts legal community, including prominent academics and litigators and is chaired by former Massachusetts District Court Judge, Nancy Gertner. The Committee's recommendation reflects the broad consensus of the Massachusetts legal community that she will be a superlative member of the Federal bench. Ms. Burroughs attended Middlebury College in Vermont and law school at the University of Pennsylvania where she graduated in 1988. She immediately began a 1-year clerkship with Judge Norma Shapiro on the United States District Court in Philadelphia beginning what has been a long and distinguished career in public service. After her clerkship, Ms. Burroughs went to the United States Attorney's Office, first in Philadelphia and then later back home in Boston. For 16 years, Ms. Burroughs has worked as a Federal Prosecutor and her record is one of significance, success and extraordinary integrity. Allison won three Director's Awards for superior performance as an Assistant U.S. Attorney. I want you to hear this one--her first in 1994 recognized her role in the investigation and prosecution of the Junior Black Mafia, one of the most ubiquitous and dangerous Philadelphia gangs in the 1980s and 1990s, a group believed to have killed more than 40 people. Her most recent 2004 Superior Performance Award recognized another kind of work that Allison did, her critical role in the Massachusetts U.S. Attorney's Office investigating and prosecuting individuals who perpetrated a complex offshore tax avoidance money laundering scheme. Since 2005, Ms. Burroughs has worked as partner and a defense lawyer in private practice in the firm of Nutter McClennen and Fish. Her extensive experience both as a prosecutor and a defense attorney gives Ms. Burroughs significant insight into both law and the practicalities of our adversarial system that will serve her well on the bench. She has also devoted significant time to civic and charitable work. She was founding member of Womanade, an organization that focuses on philanthropy to support programs that positively impact women and girls in the Boston area. She is also the former president of the board and a longtime trustee of Agassiz Village, a nonprofit camp for physically challenged and economically disadvantaged inner-city kids. Agassiz Village was founded by Allison's grandfather, a Russian immigrant who sold newspapers on a Boston street corner before putting himself through law school. Ms. Burroughs has received numerous honors recognizing her skills as a litigator, including multiple listings as a Massachusetts Super Lawyer and is a superlatively talented lawyer with a demonstrated commitment to public service. I am proud to have recommended her to President Obama. I look forward to her full approval by the Committee and her swift confirmation by the full Senate. Thank you very much for letting me be here today. Senator Feinstein. Thank you very much, Senator. If you would like to be excused--I meant to say that to Delegate Norton--but you are certainly able to. Thank you for taking the time. Senator Warren. Thank you, Madam Chairman. Senator Feinstein. I appreciate it. It is my pleasure to introduce Haywood Gilliam, Jr. He is a nominee I recommended to the President after my bipartisan screening committee--similar to what Senator Warren has in Massachusetts--gave him a strong recommendation. Mr. Gilliam's wife, Estela; daughter, Maya--nine years old, whose favorite author is a man by the name of Jackson. I told her I am from the ``Little House on the Prarie'' school, so I did not recognize him. He does mythology; right, Maya? So she is here. Mr. Gilliam's father is here. He was trained as a thoracic surgeon in the United States Army. I would like to thank him for his years of service on active duty as well as reserve duty. This is a distinguished practitioner at a major firm, Covington and Burling, and a former Federal Prosecutor. He graduated magnum cum laude from Yale in 1991, earned his law degree from Stanford in 1994, was an article editor for the Stanford Law Review. After graduation, he clerked for Judge Thelton Henderson of the Northern District of California. From 1995 to 1998, he worked as an associate at the law firm of McCutchen, Doyle, Brown and Enersen. He joined the United States Attorney's Office in San Francisco in 1999, serving until 2006. He was the Chief of the Securities Fraud Section from 2005 to 2009. He has handled several securities fraud cases as well as cases involving immigration fraud, health care fraud, commodities price manipulation and narcotics possession with intent to distribute. In 2006, he rejoined his prior firm, at that time called Bingham McCutchen as a partner. In 2009, he joined Covington and Burling where he has been a partner for the last 5 years. He is focused on corporate and individual clients facing investigation by the Federal Government. At Covington and Burling, he is the vice chair of the firm's white collar defense and investigations practice group which includes dozens of partners. So you can see he has had both sides of the question with respect to securities fraud, both as a U.S. Attorney and as a corporate defense lawyer. He has served on the District Court's Merit Selection Panel for magistrate judges, chairing it 2013, on the Stanford Law School Board of visitors from 2010 to 2012, and he serves on the board of Vincent Academy, a charter school in west Oakland. So for his family, you should know that your father and your son has an outstanding record of academic success, legal practice, and community involvement. I am confident he will serve with distinction as a district court judge. Let me add just a few words about Jeanne Davidson who has been nominated to serve on the Court of International Trade. This court has exclusive jurisdiction to hear important cases arising out of international trade, such as customs disputes. Jeanne Davidson, the nominee, earned her bachelors from UC Berkeley and her law degree from New York University of Law. For three decades, she has served in the Civil Division of the Department of Justice where she has held a variety of supervisory positions, some involving international trade. The American Bar has given her the highest rating of well- qualified. So now I would like to call forward the nominees, have them sworn in, and give them a chance to do very brief opening statements and then we will begin our questions. If you would raise your right hand, please and affirm the oath as I tell it. I do solemnly swear that I will support the Constitution of the United States in all cases, so help me God. Ms. Burroughs. I do. Ms. Davidson. I do. Mr. Gilliam. I do. Mr. Mehta. I do. Senator Feinstein. Thank you very much. The normal rule is 5-minute rounds. So I would like to begin with Ms. Burroughs and go right down the line with a brief opening statement and then ask Senator Grassley to be the first one to ask questions. Please, if you will. You need your mic on. Ms. Burroughs. I do not think you can be a judge unless you are smart enough to figure out how to turn it on. [Laughter.] Senator Feinstein. Sometimes that means you are just very brilliant. STATEMENT OF ALLISON DALE BURROUGHS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS Ms. Burroughs. I would like to thank the Committee for inviting me here today. Senator Grassley, happy birthday. I was gratified to hear you say we were noncontroversial and I hope none of us do anything today to change your mind about that. I would also like to thank Senator Warren for her kind and generous introduction as well as Senator Markey for his support. I would be remiss not to also thank the Massachusetts Selection Committee and its Chair, Nancy Gertner, who I know worked very hard to get this right. And of course, my thanks to President Obama for his nomination. I am very fortunate to have many friends here today and others watching on the webcast, including my colleagues at Nutter McClennen and Fish. Friends in this room who were generous enough to make the trip from Boston include Amy Holman, Al Ulatom, Mark Kmetz, John Levy, and Mathilda Willey. My wonderful family is also here or watching and I am grateful for their support as well. There is one family member, though, that is not here and is very much on my mind today. My father died this summer during the selection process and shortly before I was nominated. There is no one that wanted this for me more than he did, and no one that would have gotten more of a kick out of being here today than he would have. I miss him and very much wish he could be here, but I am fortunate to have my fabulous mother, Rima Burroughs here, my sister, Carol, her husband, Brett, and their children Eli, Tessie, and Topher are watching or at least will be when school is out for the day. My niece Haley, who is a high school senior is here today. I know she is hoping to get an interesting college essay out of her experience in Washington. My brother, her father, Warren Burroughs, Jr., her mother, Cindy, and her sister Linsey, along with my other siblings, Cathy and John are also watching today. John's wife, Anita as well as my Aunt Jean and her family. My husband, Mike Leslie's family is also watching, his parents, John and Susan, his brothers, Bill and John and their families. And last, but certainly not least, I want to mention my husband Mike Leslie and our boys Jake and Harry who are sitting in back and are 4-years old. My husband is also a lawyer and I know he too feels very honored and humbled to be a part of this proceeding today. I think that Jake and Harry are enjoying their first trip to Washington, although Harry did tell me he was looking forward to my concert today and I can only hope he is not disappointed. [Laughter.] Ms. Burroughs. I thank you, again, for your consideration and I look forward to your questions. Senator Feinstein. Thank you very much. [The biographical information of Ms. Burrough appears as a submission for the record.] Senator Feinstein. Ms. Davidson. STATEMENT OF JEANNE E. DAVIDSON, NOMINEE TO BE JUDGE OF THE U.S. COURT OF INTERNATIONAL TRADE Ms. Davidson. Good morning. Thank you, Senator Feinstein, for chairing this hearing and for your kind introduction. I would like to thank the Committee for holding this hearing and I would like to thank President Obama for the honor of nominating me to the Court of International Trade. I also would like to wish Senator Grassley happy birthday. I would like to thank all of my friends and family who could not be here today, but are watching on the webcast in California, New York, Maryland, and in the District all in one fell swoop. Thanks to all of you for your support. With one exception, I will limit my introductions to people who are here today. The exception is my parents. They were California natives and members of the greatest generation. My father served in World War II, in the Navy, and then was in the Naval Reserve until he retired. My mother was a public school teacher in California. With me today are two family members who flew all the way from California, my son, my greatest achievement in life, Jeremy Davidson Hoffman. He obtained his bachelor's and master's degree in computer science at Stanford University and is now a senior software engineer at Google. My brother, Dr. John Michael Davidson, served in the Army during the Vietnam war era and then went on to obtain a doctorate in physics and for 35 years worked at the Jet Propulsion Laboratory in Pasadena where I can only describe his job as rocket scientist. My sister, Mary Elizabeth Davidson, is here today with her husband Matthew Seiden. They met almost 45 years ago when they were both serving in the Peace Corp in Brazil. Their son, Gabe Seiden, is here today. He also served in the Peace Corp many years later in Guatemala and is the proud father of Zev and Jacob Seiden. I would like to recognize some family friends, Virginia Lum and Dr. Robert Young, originally from the State of Hawaii, but now from the State of Maryland. My colleagues from the Federal Circuit Bar Association, of which I am privileged to serve as the president, currently, are here today and I welcome their support. Finally, I would like to recognize the lawyers from the Department of Justice, many of them are here today, with whom I have had the privilege of serving for almost 30 years and who are extraordinary, dedicated, talented group of lawyers. I would particularly like to mention those from the National Court Section in the Office of Foreign Litigation. Thank you very much. Senator Feinstein. Thank you. You have pretty much filled up the place. [The biographical information of Ms. Davidson appears as a submission for the record.] Senator Feinstein. Mr. Gilliam. STATEMENT OF HAYWOOD STIRLING GILLIAM, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA Mr. Gilliam. Thank you, Senator Feinstein. Thank you very much for your kind introduction and for recommending me to President Obama. I deeply appreciate the trust that you have placed in me. Thank you to Ranking Member Grassley and the rest of the Committee for holding today's hearing. I am honored to be here today to answer your questions. I thank President Obama for placing his trust in me by nominating me to this very important position. I would like to acknowledge my family who have traveled here today. My wife, Estela Lopez Gilliam--Stella and I met when we were young lawyers speaking to a class of tenth graders--who were reading ``To Kill a Mocking Bird''--about our jobs as lawyers. I can tell the young lawyers here always take the chance to do volunteer work when you can because it paid off for me. We celebrated our 12th anniversary this past June. My daughter, Maya Pearl, is here as well. Maya is a fourth grader at Hillcrest Elementary School in Oakland, California. She is very excited about the opportunity to visit the Smithsonian this week and we are hoping that her teachers give her extra study credit for that. My parents, Dr. Haywood Gilliam, Sr. and Audrey Gilliam have traveled from Alameda, California to join me today. I appreciate their support. I would like to also acknowledge four people who are not here, but who are very much here with me in spirit, and that is my grandparents John and Pearl Bryant and Marvin and Emma Gilliam. I know that if they were here, they would be very proud. I can say with certainty without the love and support and encouragement of my family members, there would be no way that I could be sitting here before you as a nominee to the Federal bench. Finally, I would like to recognize those who are joining us today on the webcast, especially the folks in California who got up very early to view these proceedings. Thank you to everyone watching on the webcast. Thank you, again, and I very much appreciate the opportunity to be here before you today. Senator Feinstein. Thank you, Mr. Gilliam. [The biographical information of Mr. Gilliam appears as a submission for the record.] Senator Feinstein. Mr. Mehta. STATEMENT OF AMIT PRIYAVADAN MEHTA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA Mr. Mehta. Thank you, Senator Feinstein. I would also like to thank the Chairman and the Ranking Member for convening the meeting today. I wish Senator Grassley a happy birthday. I would also like to thank Senator Feinstein for chairing the meeting. I would like to thank Congresswoman Norton for her kind introductory remarks as well as her faith in me, and nominating me to the President as well as her nominations commission for considering my application and recommending me to the Congresswoman. I would also like to thank President Obama for the honor and the privilege of the nomination. I thank him very much for the trust that he has placed in me. I would like to acknowledge my family and friends who are here today, starting with my wife and best friend, Caroline Mehta. We have been married for 9 years and without her, I certainly would not be here today. My daughter, Devan, who is 7 years old--she is a second- grader at John Eaton Elementary here in Washington, DC. She is here and this is her first true civics lesson. My son Kian, who is 3 years old is here as well. My Parents, Priyavadan and Ragini Mehta are here from Baltimore, Maryland. My parents came to this country 42 years ago. My presence here today is a testament to them as well as the opportunities that this country has afforded my family. My sister, Sheetal Prasad, is here from New York city. I would like to acknowledge my in-laws, my wife's parents, Charles and Susan Judge, who could not be here today. My wife is fond of saying that I have already met the most important Judges in my life, and she is right about that. My dear friends are here, my law partners and dear friends William Taylor, Roger Zuckerman, and Susan Taylor. I would also like to acknowledge my friends Marybeth Rathman, Ephraim Leavy and Michael Zamor who are here as well. Last, I would like to thank Este Berwinkle for being here. Ms. Berwinkle is staying with our family from South Africa for the year and this is a nice way for her to see how the American judicial and Congressional process work. Thank you. Senator Feinstein. Thank you very much. [The biographical information of Mr. Mehta appears as a submission for the record.] Senator Feinstein. We will now go to questions. I will ask our distinguished Ranking Member, Senator Grassley, to begin. Senator Grassley. Well, thank you. I usually only ask one or two questions of each of you here orally. I submit questions for response in writing and sometimes when those come back, we ask for further elaboration on some of the questions. So do not be surprised if you get questions in writing and maybe even followups. I am going to start with Ms. Burroughs. I have three or four questions of which I am only going to ask one, but they deal with the issue of the death penalty. In the case of the Boston bomber, you wrote that a decision to forego the death penalty ``would have required political courage''--just a short explanation of what you meant by the statement. Ms. Burroughs. Thank you for giving me an opoortunity to address that topic. The marathon bombing case was, obviously, a high profile case in Boston. It struck at an iconic event in both Boston and in the United States. There is obviously a lot of strong emotion over what should happen to the defendant in that case. Because it was so high profile and the crime so atrocious, including the taking of a life of a small child, to forego the death penalty in that case, I believe, would have required political courage of a different sort than, perhaps in a more run of a mill, gang kind of case. Senator Grassley. And just a short answer to this question. Do you hold any personal views regarding the death penalty that would make you unable to impose it if the law required it? Ms. Burroughs. No, Senator, I do not. Senator Grassley. All right. Now I am going to go on to Ms. Davidson. In a 2004 panel you said, ``your credibility before the court is your most important asset as a lawyer.'' If confirmed, how would you evaluate the credibility of lawyers who appear before you? Ms. Davidson. Thank you, Senator. If confirmed, I would prepare very carefully and very thoroughly for every case that came before me, and I would evaluate the credibility of the lawyers based upon their candor in making their arguments to the court, whether their arguments were well-based in the record and in the law, in the Constitution, the statutes, the decisions of the Supreme Court. Senator Grassley. Thank you. Mr. Gilliam, you would not know this, but I spend a lot of time considering points of view of whistleblowers. So you have had an interest in that. In your capacity as a partner of a law firm, you represented clients during governmental investigations. You have written extensively on how to conduct investigations and how to deal with whistleblowers. What is your view in the role of whistleblowers? Mr. Gilliam. Thank you, Senator. Whistleblowers have a very important role under the law. A number of statutes that I deal with routinely--for example, the False Claims Act, have expressed provisions that provide for whistleblowing. I think that those statutes are clear. They set out the proper process by which whistleblowers can bring claims and by which those claims would be adjudicated. Were I to have the honor of being confirmed as a District Court Judge, I would follow those precedents in individual cases. Senator Grassley. Mr. Mehta, you have, I think, had almost an entire career as a defense attorney. If confirmed, you will have to make a transition from an advocate to impartial judge. I am not questioning whether you can do that, but what do you expect will be the most difficult of that transition if it is difficult for you? It may not be. I am not assuming it would be, but I want to know how you would make that transition. Mr. Mehta. Senator, I think every part of the transition will be difficult. The position of Federal judge is one that is extraordinarily demanding and obviously quite different than that of the role of the advocate. It is critically important for any Federal judge to be impartial, come to any case with an open mind and particularly in criminal cases it is critically important to be an open-mind with respect to both the Government's position as well as that of the defendant. I can assure you, Senator, that I will approach the position in that way, impartially, fairly, and honestly. Senator Grassley. Thank you, nominees. Thank you, Madam Chairman. Senator Feinstein. Thank you very much, Senator Grassley. You have asked the death penalty question I was going to ask of Ms. Burroughs. I would like to ask each person to quickly go down the line and say why they believe they are--Senator Grassley must excuse himself. There is a Committee hearing, of this Committee, on the subject of net neutrality. So I will just perk along. I would like each one of you to tell us why your believe that you are well-qualified for the job, how you will handle your caseload which can be very high, and how you feel about being a District Court Judge and what that means. This is not an appellate court. It is a district court. So perhaps I can begin. Mr. Gilliam, you are for our district court. Mr. Gilliam. Thank you, Senator Feinstein. I believe that in my career I have had a broad range of experience that will prepare me well if I am fortunate enough to be confirmed as a district judge. I began my career as a law clerk for a Federal judge in San Francisco and had the opportunity to see the judicial system from that perspective and have the experience of neutrally evaluating cases and recommending an outcome, not as an advocate, but as a neutral assistant to the judge. I have represented parties in criminal and civil matters in my career. I have served as a prosecutor for a number of years, and I have also handled matters as a defense counsel on behalf of clients of different types. I think all of those experiences have prepared me well to evaluate and understand the perspectives of the different participants in the system and reach decisions that are based solely on the controlling law and the fact of any given case. The role of the district court is to follow precedent, apply it to the case before me, and reach a decision that is based on nothing other than those considerations. I think that my career has well-prepared me to do that. In terms of caseload management, briefly, I think that is critical for a district judge. In our district, it is very common for judges to issue case management orders very early in the case, set out a reasonable schedule and expect the parties to adhere to it unless there is a good reason to depart from it, and especially to urge the parties to meet and confer early in the process to narrow the issues and work out whatever issues they possible can without the intervention of the court. I think that that is a powerful tool for managing a caseload and a docket. I would intend to implement those sorts of procedures were I to be a district judge. Senator Feinstein. Thank you very much. Ms. Burroughs. Ms. Burroughs. Thank you, Senator. Like Mr. Gilliam, I have had a varied career in the law. I have been a law clerk, a prosecutor, and now a defense lawyer in a major law firm. I love being in the courtroom. I love trial work. I am firmly committed to the principles of our judicial system, that cases are decided by neutral, impartial open-minded, fair judges. I am very interested in being a part of that process. I am very thrilled about being a district court judge for the reasons I just stated. I love being in a courtroom. I love the woof and warp of it. I love the human drama in there. The Judge that I clerked for, Judge Norma Shapiro once told me that jurors got it right 95 percent of the time. I think it is more like 98 percent of the time. I think that is unbelievable, and I think about the challenge of getting 12 of my friends to agree to anything, much less a room full of strangers agreeing to something. So I think that our system of justice is really amazing and I am very excited about being a part of the institution that can continue those very wonderful traditions. In terms of case management, I would also mange my docket proactively. I am a believer that justice delayed is, in fact, justice denied. I would try and move my docket along as quickly as possible, consistent with fairness and making sure that everybody has an adequate chance to be heard on all of the issues. Senator Feinstein. Thank you very much. Mr. Mehta. Mr. Mehta. Thank you, Senator. I too have been fortunate to have had a varied career. I have served both in the public sector and worked in the private sector as a criminal defense attorney. I have also had the opportunity to have served--to be an advocate in civil cases, both on the plaintiff side and on the defense side. I have also been fortunate enough to do some appellate work, and I also have clerked. I think those experiences provide a strong foundation for the challenges that will lie ahead as a Federal district judge if I am so fortunate to be confirmed. In terms of the caseload question, like my fellow nominees, I would take that, obviously, quite seriously. It is critically important that a Federal judge at the district court level move cases along. It is critically important that judges come in day after day and commit themselves to the hard work of making decisions so that the parties before them and the public have the confidence that the judicial process is working and working efficiently. I too look forward, if I am so honored to be confirmed, to be part of the institution. It would be no greater honor in my career than to serve the people of the District of Columbia in that capacity. Senator Feinstein. Thank you very much. Let me just ask you one question. Now you have been a criminal defense lawyer for-- now that is a critical role, obviously, but for a long time. Do you feel you can look with an open mind at the facts on both sides? Mr. Mehta. I do, Senator Feinstein. I recognize that my role as an advocate on behalf of defendants is a very different role than the one I would play as a jurist. A jurist must be impartial, must be fair, and open-minded to all the parties in every kind of case that comes before him or her. Certainly in criminal cases I would do that. The government has a very strong interest on behalf of the people in any courtroom in any criminal case. I would give that interest as much due consideration as that of the defendant. Senator Feinstein. Thank you very much. Ms. Burroughs. Oh wait. We did that. Sorry, Ms. Davidson. Ms. Davidson. Yes. Thank you, Senator. Senator Feinstein. For the court. The court you are going to be serving on is a little bit different. Perhaps, you would tell us what you anticipate and how you would handle it. Ms. Davidson. Yes. Well many of the considerations are the same, so the question applies almost equally to the Court of International Trade. I am qualified to be a judge in that court because I am extremely familiar with international trade law as a result of my practice over many years. I am qualified to be a judge because I have been both in private practice and at the Department of Justice. I have appeared before numerous judges personally, both at the trial and the appellate levels. So I am very comfortable in the courtroom and I know what the transition will be like to move to the other side of the bench and to assume the very different role as a judge. I also have worked with bar associations throughout my whole career where often I am one of the very few government lawyers in the bar association and I have listened carefully to the concerns of private counsel and found that often our underlying interests are not all that different. And at the Department of Justice a large part of my role as a supervisor is evaluating the Government's arguments and critiquing them and serving as a moot court judge for younger lawyers who are going to court. So I am very familiar with questioning the Government's arguments. In terms of caseload, I know from my practice and from my work with the private bar how important it is to have an expedited review system for courts to resolve cases promptly in the commercial world, in the criminal world, in every aspect of the law. I would be very conscious of that. I think I could bring to the Court of International Trade some new ideas for case management and technology that I have gained through my work in other courts. As a trial court judge, I would view my role in addition to the role of every judge of being fair, impartial, objective--I also would view my job as making sure that the record was fully developed, cognizant that the case might go up on appeal. So I would want to be sure that I completely understood the arguments that the parties were making and the issues that were raised and that the record was complete and clear in case the court went up on appeal. Finally, as a national court, the Court of International Trade has jurisdiction over the entire country, and I would be cognizant that it is not just a court that sits in New York and decides cases in New York, but must look throughout the country. I am familiar with that role because I also work in other national courts, the Court of Federal Claims and the Court of Appeals for the Federal Circuit. So the national courts have a different role than the district courts. I would be very cognizant of that responsibility to look throughout the United States and not just within the courtroom in New York. Thank you. Senator Feinstein. Thank you. I think as Senator Grassley has said, this is not a controversial panel. It is a well-qualified panel of individuals who have sufficient background, history, commitment, and particularly in the law. I want people to know that this is a relatively short hearing as these things go, but that is not to say that you each have not been scrupulously evaluated by staff who go through volumes of paper. Even the slightest little thing can be brought to our attention. I think the statements you made are really cognizant of the roles that you will go into and very well handled. So I am just going to say we will do our best to get this before the full Committee as soon as possible, and hopefully confirmed also as soon as possible. So thank you everybody, families, everyone for coming. I would like to just announce that the record will be held open for 1 week. Thank you very much. The hearing is adjourned. [Whereupon, at 10:46 a.m., the Committee was adjourned.] [Additional material submitted for the record follows.] A P P E N D I X Additional Material Submitted for the Record [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] NOMINATIONS OF HON. JOAN MARIE AZRACK, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK; LORETTA COPELAND BIGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA; ELIZABETH K. DILLON, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA; AND MICHAEL P. BOTTICELLI, NOMINEE TO BE THE DIRECTOR OF NATIONAL DRUG CONTROL POLICY ---------- THURSDAY, NOVEMBER 13, 2014 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 12:21 p.m., in Room SD-226, Dirksen Senate Office Building, Hon. Mazie Hirono, presiding. Present: Senator Grassley. OPENING STATEMENT OF HON. MAZIE HIRONO, A U.S. SENATOR FROM THE STATE OF HAWAII Senator Hirono. The hearing of the Judiciary Committee will now come to order. I do apologize to our nominees and Senator Burr, Senator Grassley and others for this delay. I thank you very much for your patience. Senator Burr, we can start with you. I will forgo my opening statement. [The prepared statement of Senator Hirono appears as a submission for the record.] PRESENTATION OF LORETTA COPELAND BIGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, BY HON. RICHARD BURR, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA Senator Burr. Chairman Hirono, thank you very much and let me just thank the Committee for holding this hearing with these nominees. Madam Chairman, I am here to support and to voice a strong support for Judge Loretta Biggs. She is a North Carolinian with the professional integrity and legal experience that makes her an outstanding candidate to serve on the Federal bench. I feel confident that the community will come to the same conclusion after reviewing all of the documentation about this exceptional nominee. Not only is she exceptional from the standpoint of her service on the bench and in law, she has been active in her community and I know her active role has made the Piedmont Triad of North Carolina a much better place to live. Countless others have benefited from her wealth of legal knowledge. She has also served as an adjunct professor at Wake Forest University Law School. In this regard, I find it reassuring to know her legal knowledge merged with the academic genius usually attributed to Demon Deacons. Without doubt, North Carolina is better off because of this. I would like to highlight, very quickly, a few points of Judge Biggs' resume which I believe signal a unique and highly accomplished career and make her an excellent candidate for the Federal bench. She served as a Federal and State prosecutor. She is admitted to practice in all North Carolina courts, the Supreme Court, the U.S. Court of Appeals and the U.S. District Courts. She has significant experience in both public and private practice, from the general counsel's office of a fortune 500 company to the Assistant D.A. position in my home county of, Forsyth County. She began her service as a judge in 1987 when she was appointed to the 21st Judicial District Bench in North Carolina. She served in the U.S. Attorney's Office for the Middle District of North Carolina where she coordinated crime prevention efforts. While there she helped develop the model for Juvenile Crime Prevention Councils that are currently being used statewide by the North Carolina Department of Safety to reduce and prevent juvenile crime. In 2001, she was appointed to serve on the North Carolina Court of Appeals. In addition to her professional achievements, she has also received numerous awards for her service and commitment to the community. These include the YMCA Public Leadership Award, the Visionworks Humanitarian Award, the Dream Catchers Award, the Tar Heel Girl Scouts Council, the Community Service Award, Family Services of Forsyth County, the Strong and Smart and Bold Award, Salvation Army Girl's Club, Woman of the Year in the Winston-Salem Chronicle and Best Choice Center Wall of Fame. Madam Chairman, let me reiterate my support for Loretta Biggs as a nominee for the Federal bench. I believe she has the necessary experience, the temperament and the judgment required for the bench, as well as the character that we all look for in judicial nominees. I believe this Committee will agree with me that Loretta Biggs is well qualified to serve on the Federal bench. But let me assure you and those Members who are not here today, this is a fine woman. This is a woman that we can be proud of, a woman that will not only perform in a professional manner, but she will represent the decision of this President and of this Congress in her nomination in a very distinctful way. I thank the Chair. Senator Hirono. Thank you Senator Burr. Senator Hagan, we will give you a moment to settle in and then please proceed with your testimony in support of Ms. Biggs. PRESENTATION OF LORETTA COPELAND BIGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, BY HON. KAY HAGAN, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA Senator Hagan. Thank you Madam Chairman. I also want to thank all of the Members of the Judiciary Committee and I am greatly honored to be able to join you today with my colleague, Senator Burr, to introduce an exceptional candidate for the U.S. District for the Middle District of North Carolina, Ms. Loretta Biggs. I appreciate the opportunity to be here to speak about Ms. Biggs exemplary experience and contributions to public service during her 35 years of service as an Appellate Court and a State Trial Court Judge, a Federal and State Prosecutor and a successful attorney in private practice. I first want to recognize Ms. Biggs' daughter, Jahmela; her brother, William Miller; her friend, Larry Biggs; and former North Carolina Supreme Court Justice, Patricia Timmons-Goodson. I am delighted that you were all able to join us today. I also want to recognize Ms. Biggs' mother, the late Ernestine Miller, whom she credits for every achievement in her life and who is with us in spirit today. I also, at this time, want to thank Judge James Beaty, Jr., who assumed senior status in the Middle District earlier this year. Judge Beaty served honorably for 20 years in the Middle District, including 6 years as Chief Judge. I am so grateful for his dedicated service to our State. Loretta Biggs is currently a partner at the law firm of Allman, Spry, Davis, Leggett and Crumpler in Winston-Salem, North Carolina where her practice includes litigation, mediation, arbitration of complex family law cases and interstate and international child abduction cases. She was formerly the managing partner at Davis, Harwell and Biggs where her specialties included family law, complex civil litigation, and appellate practice. She is a North Carolina Board Certified Family Law Specialist and Board Certified Family Law Financial mediator and a Fellow in the American Academy of Matrimonial Lawyers, one of the highest honors a family law litigator can claim. Ms. Biggs was previously an Associate Judge on the North Carolina Court of Appeals where she authored over 175 opinions and participated in approximately 300 additional opinions, including criminal and civil substantive law and procedural law issues. Prior to her appointment to the Court of Appeals, Ms. Biggs was Executive Assistant, U.S. Attorney for the Middle District of North Carolina where she oversaw the planning and coordination of all crime prevention and reduction efforts of the U.S. Attorney's Office and developed the model for the Juvenile Crime Prevention Councils that are now operating in all 100 counties in North Carolina. She was recognized for her work at the U.S. Attorney's Office in 1999 as one of only three recipients in the country of the United States Attorney General's Award for Outstanding Contributions to Community Partnerships for Public Safety. From 1987 to 1999, Ms. Biggs served as a District Court Judge for the 21st Judicial District of North Carolina, having first been appointed by the Governor and subsequently winning two local elections to retain her seat. She got her start in public service as an Assistant District Attorney in Forsyth County and began her legal career at the in-house counsel's office at Coca-Cola. She also served as an adjunct professor at my alma mater, Wake Forest University School of Law, where she taught at the legal clinic and began a mentoring program for black law students at the school. Ms. Biggs has been recognized among the Best Lawyers in America since 2006 and the Super Lawyers since 2007. In 2007, she was also one of the Top 50 Women Lawyers in the Super Lawyers publication. In addition to her professional honors, she has also been recognized for her outstanding community service, having earned such recognitions as the YMCA Public Leadership Award, the Visionworks Humanitarian Award, the Community Service Award from the Family Services of Forsyth County and the Salvation Army Girls Club Strong, Smart and Bold Award. Ms. Biggs graduated with Honors from Spelman College in 1976 with a Bachelor of Arts Degree. She went on to earn her Juris Doctorate from Howard University School of Law in 1979, where she was fifth in her class and the Deputy Article Editor for the Howard University Law Journal. I believe that Ms. Biggs' experience, acuity, leadership and deep roots in her community make her an exemplary choice for the Middle District of North Carolina. If appointed, she will be the only African American to sit as a U.S. District Judge in Winston-Salem. Her extensive legal experience and dedication to public service demonstrate her imminent qualifications for service on the Federal bench and I am confident that she will make an outstanding judge for the Middle District. I thank you, Madam Chair, for holding this hearing today and allowing me to speak to Ms. Loretta Biggs' abilities. I wholeheartedly support the nomination of Loretta Biggs and look forward to working with you to confirm her to this position as swiftly as possible. Thank you, Madam Chair. Senator Hirono. Thank you, Senator Hagan and thank you Senator Burr. I realize that you have other business to attend to, so thank you very much for your presence here. We do have other Senators who are inadvertently delayed, but I did want to mention that Senator Gillibrand was going to introduce Judge Azrack, Senator Warner to introduce Ms. Dillon, Senator Kaine to also introduce Ms. Dillon and Senator Markey to introduce Mr. Botticelli. Their testimony in support of these nominees will be entered into the record of this hearing. [The prepared statements of Senator Gillibrand, Senator Warner, Senator Kaine, and Senator Markey appear as submissions for the record.] Senator Hirono. At this time I would like to ask the table to be cleared so that our nominees can come to the table. While this is happening, I would like to introduce my statement for the record--but to say that all of our judicial nominees are filling emergency positions, so this hearing is very important. [The prepared statement of Senator Hirono appears as a submission for the record.] Senator Hirono. Before we get to our nominees, I would like to turn now to Ranking Member Grassley for his opening statement, if any. OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. For the same reason that you put your statement in the record, I am going to put my statement in the record. I would announce for the judicial nominees, I am not going to ask questions to be answered today, I am going to issue statements for the record that I would like to have answered in writing, but when we get around to asking questions, I would like to have a short discussion with the Drug Czar. [The prepared statement of Ranking Member Grassley appears as a submission for the record.] Senator Hirono. Certainly. Will all of our nominees come to the table. I would like you all to rise and raise your right hand for the oath. Do you solemnly swear that the testimony you are about to give the Committee will be the truth, the whole truth and nothing but the truth so help you God? Judge Azrack. I do. Ms. Biggs. I do. Ms. Dillon. I do. Mr. Botticelli. I do. Senator Hirono. Thank you. Let the record show that the nominees have answered in the affirmative. We will start with opening statements from all of our nominees. We will start with you, Judge Azrack. STATEMENT OF HON. JOAN MARIE AZRACK, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK Judge Azrack. Thank you, Senator. I want to thank you and the Committee for convening this hearing today and for inviting me to attend. I want to thank Senator Gillibrand for recommending me to the President and of course, I want to thank President Obama for nominating me for this position. I would like to take a moment and introduce my family who is here. I would not be here without their love and support. My husband, William Ballaine, is here. My daughters, Katie Ballaine and Annie Ballaine are here. Katie Ballaine is 23. She is a 2013 graduate of Yale University now working in New York City for NBC. Annie came down from New Haven last night. She is a junior at Yale. My first cousin, Patricia Loeb is here--who is like a sister to me. A dear friend, Kerry Docherty, and former law clerk is also here. My intrepid and loyal three law clerks came down very early this morning, so chambers is closed today--Bob Terranova, Charlotte Petilla and Diana Srebenik. I want to thank them all for being here with me. My brother is watching on the webcast as are many members of my Eastern District Court family and I thank them for their support as well. Before I close, I want to acknowledge two very important people in my life, my parents, John Azrack and Theresa Wieland Azrack, who died some years ago. I know they are with me in spirit and I know they are up there somewhere bursting with pride at me sitting here before a U.S. Senate Committee being considered for a Federal judgship. Thank you. Senator Hirono. Thank you and welcome to all of your family. [The biographical information of Judge Azrack appears as a submission for the record.] Senator Hirono. Ms. Biggs. STATEMENT OF LORETTA COPELAND BIGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA Ms. Biggs. Thank you, Senator. First of all, I do want to thank you for--I know, on a very busy day--conducting this hearing. To our Ranking Member of the Judiciary Committee, Senator Grassley, I thank you, sir, for being here. I do want to thank both of my home-state Senators, both Senator Hagan and Senator Burr. I am humbled by their undaunting support of me through this nomination and now through this confirmation process. I do want to thank the President for the nomination. I am very proud to be here. I do have with me here today my daughter, Jahmela, who took the redeye from Los Angeles to ensure that she would be here with her mom, seated here. I have my brother here, William Miller, from Atlanta, Georgia. And I have my dear, good friend, Larry Biggs, here along with me. We also have the Special Assistant to Former North Carolina Supreme Court Justice, Justice Timmons-Goodson, Cheryl Cozart who is here in support of me as well as Justice Timmons- Goodson. By webcast, I would like to acknowledge my son, Jolonnie; his wife, Kelsie; and our 1-year-old grandson, Jamison Walter. I would also like to acknowledge my sister and brother-in-law in Atlanta, Antoinette Sewell and her family. I would like to acknowledge my brother and sister-in-law--my brother, retired Air Force in Moreno Valley, California, as well as his three children, my nieces and nephews. I would like to acknowledge my in-laws, Louise and Earl Newsom from Williamston, North Carolina, who have been very active in my life. I would like to thank all of my friends, all of my colleagues, all of my family for supporting me throughout my career. As Senator Hagan mentioned, I would do a special thank you to my mother, Ernestine Lucretia Miller who is no longer with us, but has been my guardian angel throughout my life and continues to be here in her spirit. Thank you so very much for this opportunity. [The biographical information of Ms. Biggs appears as a submission for the record.] Senator Hirono. Thank you very much. And now Ms. Dillon. STATEMENT OF ELIZABETH K. DILLON, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA Ms. Dillon. Thank you Ranking Senator Grassley, presiding Senator Hirono, and this Committee for allowing me to be here today. I would like to convey my thanks to Senators Warner and Kaine for their recommendation to the President and of course, I am deeply honored by the nomination by President Obama and thank him. I would also like to introduce and give thanks beyond measure to my family who are here with me today, my husband, Barry Dillon; my daughters, Katie and Anne. Katie is a graduate student studying speech and language pathology. Anne is a junior in college studying human relations and anthropology. Also with me today I have family friends Ben Strickler and Steward Hundley who are both young men interested in government and happen to be studying and working in Washington, DC, right now. Watching by webcast today I have my proud parents, Kay Shields, my mother; Ted Hillman and his wife, Bernie--my father. My parents instilled in me a love of learning that continues to benefit me today. I would like to thank my mother-in-law for all of her support, Lucille Dillon, in spirit, my father-in-law, A.W. Dillon. Also my sisters, Joannie Dunn and Laura Heitzman who helped me hone my verbal skills at an early age. My sisters-in- law Debbie Dillon and Janet McClain and all of their families. Also everyone at my law firm and my many special friends that are supporting me today. Thank you. [The biographical information of Ms. Dillon appears as a submission for the record.] Senator Hirono. Welcome to all of you. Mr. Botticelli, you have a different role here. You are not a judicial nominee and you have submitted your testimony, so perhaps you would like to take 5 minutes or so to give your testimony to this Committee. STATEMENT OF MICHAEL P. BOTTICELLI, NOMINEE TO BE THE DIRECTOR OF NATIONAL DRUG CONTROL POLICY Mr. Botticelli. Great. For the sake of dialogue and discussion, I will submit my formal statement for the record to really preserve time. But I do want to thank you, as Chair of this Committee, and Ranking Member Grassley. It is an incredible honor for me to be in front of you today. I would also like to acknowledge Senator Markey for his willingness to introduce me and for his support. I have the privilege when he was in the House to be one of his constituents when I lived outside of Boston, so I have a long association with him. I really want to thank President Obama for nominating me for this position. It is a tremendous honor for me to be here. I would like to introduce and acknowledge my husband, David Wells for his love and encouragement. I know that I would not be here today without his love and support. Watching by way of webcast, my two older brothers who are instrumental in guiding me to this point and continue to provide support and guidance for me. I am also joined here today by many friends and colleagues that I have known for a long time who have given me a tremendous amount of guidance and support not only during my time at ONDCP, but also my time at the State level. I would also like to recognize my parents who are no longer here. My parents were first-generation Italian immigrants and to have their son nominated to this position, I cannot thank them enough for all of the hard work and sacrifice that they gave me and my brothers to be in this position where we are today. And finally, I would like to thank my staff at ONDCP, many of whom are here today. I really have the privilege and honor of representing their fine work as we think about protecting the American people from drug use. Thank you. [The biographical information and prepared statement of Mr. Botticelli appear as submissions for the record.] Senator Hirono. Thank you very much. And just for purposes of clarification, Mr. Botticelli, you are being nominated to be the Director of the National Drug Control Policy. At this point, the Committee will open for 5 minutes of questioning by myself and the Ranking Member Grassley. As our judicial nominees have come all this way, I know that Senator Grassley will be submitting his questions for the record for your response for the record. I would just like to ask each of you, very briefly, to tell us a little bit about what you see as the challenges in serving as a Federal District Court Judge. We realized that you have diverse experiences as judges and in the private sector, but if each of you could just briefly share with this Committee what you see as the challenges in serving as a Federal Court Judge. Let us start with you. Judge Azrack. Thank you, Senator. The challenges I see are the challenges I have been confronting for 23 years as a United States Magistrate Judge in the Eastern District of New York. That is making sure that everyone who comes into my courtroom is respected, their views are heard, they are given their day in court, they feel as if our justice system is working for them and that I hear their case and base my decision on existing law, applying the existing law to the facts and give them a ruling promptly and with clarity so that when they leave my courtroom, they understand--even if they may not have prevailed--they understand why I did what I did and they leave with some enduring confidence in our system. Ms. Biggs. The challenges that I would see are ensuring that every person that comes before the court understands that the court is a vehicle through which they can ensure that their claims are heard, that their claims are heard by a knowledgeable judge, that their claims are handled in an efficient way, that they have a full opportunity to have those claims heard in a very fair and impartial way. It is critical that each person that comes into our Federal courthouse believes that the court will hear them, allow their attorneys to try their cases in the best way that they know how and that there will be a deliberate and speedy trial. Thank you. Ms. Dillon. Thank you, Senator, for that question. The challenge I see is to honor and have the outmost respect for the tremendous responsibility placed on a person in the position of district court judge. From that respect flows all of those other things, the respect for the rule of law, the respect for the litigants and the respect for the lawyers appearing in that court, a sense of fairness and impartiality and that transition from advocate to judge to fair and impartial decisionmaker. I pledge to this Committee that I have that utmost respect and recognize the tremendous responsibility placed on that position. Also, with the Western District of Virginia, I will tell you that I have a special place in my heart for that court. It is a welcoming court. We recently lost Judge Turk, one of the senior judges, at age 91 years old who was very active in the court and has taught every litigant and every lawyer who has appeared before him that with responsibility comes the duty to be fair and impartial and kind. I would hope that I could do the same. Thank you. Senator Hirono. Thank you. I have a question for Mr. Botticelli. We know that opioid addiction is on the rise and the result is an increase in overdoses, death and costs. I cosponsored the TREAT Act, which I believe you are familiar with, earlier this year which would expand the number of patients that a provider can treat for opioid addiction as well as the type of providers eligible for providing this kind of treatment. Can you comment on how you think the TREAT Act fits into a national plan for dealing with opioid addiction? Mr. Botticelli. Senator, as you indicated, we have been significantly concerned about the dramatic increase in opioid use, both prescription drugs and heroin use throughout the country and as you indicated, the devastating impact that that has had on mortality. The recent yearly data show that 110 people are dying every day of a drug-related overdose. These are deaths that are entirely preventable. In 2011, our office sponsored a prescription drug abuse plan that we are making significant progress on. One of those principles I think is very much in keeping with the intent of your legislation, that we have effective medications that we know are highly effective, not only in treating opioid use disorders, but preventing mortality. So we are very supportive of looking at ways that we can work with our Federal agencies and State and locals to increase access to these lifesaving medications. Part of what I started as Deputy Director was convening a treatment workgroup of all of our Federal partners to look at not only how could we increase access to treatment that we know is effective, but especially focused on increasing access to all of the FDA approved medications for opioid use disorder. We would be happy to work with you to look at how we can continue to focus our efforts on making sure that people with those disorders have access to those lifesaving medications. Senator Hirono. My 5 minutes are up. Senator Grassley, would you like to proceed? Senator Grassley. Thank you. Just let me explain to our judicial nominees so you do not think you are less important. Normally, I would be asking questions orally and I am not today because we got started so late. It is neither one of our faults. As you probably know, it was the caucuses for the Democrat and Republican parties that help us up. So I am going to just ask of Mr. Botticelli. You have been a leading voice against legalization of recreational marijuana. First of all, I would thank you for that. Could you explain why you are against legalization and tell us what the latest scientific studies have shown about the effects of marijuana use on young people's brains, a potential for facilitating addiction. Mr. Botticelli. Thank you Ranking Member Grassley. As you indicated, we have been opposed to legalization efforts and that is a direct result of the abundant scientific evidence we have about the public health harms and public safety harms around marijuana. We know that about 1 in 11 people or 9 percent become dependent on marijuana when they use it on a regular basis. And we know that the earlier people use and the earlier youth use, the more likelihood they have in developing a more significant substance use disorder. While we have made progress in many of the areas on reducing drug use in the United States, marijuana is, unfortunately, not one of them. We have more youth in the United States now who are smoking marijuana than they are tobacco. That is directly tied to the lack of risk that youth have in the United States of using marijuana and that is directly tied to the messages that youth are getting both in terms of legalization efforts as well as medical marijuana, that these substances are not harmful. Part of what I do when I go across the country is talk to youth about the messages that they hear. We have made considerable progress on tobacco and youth will tell you that it is harmful. But I am really disturbed by what they say to me about marijuana and they see it as benign and in some cases they see it as healthful because of a medical community prescribing this medication. So we have significant issues all ready with marijuana and we are really concerned about the commercialization of marijuana and what that is going to mean in terms of increased access to youth. Senator Grassley. Some have said that legalization of marijuana should only be a first step, that the use of other drugs like cocaine, heroin, and methamphetamine should be legalized. Now you have publically described--and you have got to be complimented for doing this--your courageous story, personal story of recovering from addiction. Are you in favor of legalizing the use of these drugs and what would legalizing use of these drugs do to public health, especially those at risk of addiction? Mr. Botticelli. We do not support that and I do not support that. As you indicated, Senator, I only have to look back at my own story around addiction and recovery to know the devastating impact that alcohol and other drugs have on people. I know that that is entirely preventable and I know that legalization is not the solution to our problems. We also know that many of the folks who are promoting legalization of marijuana see this as a first step and they want to legalize other drugs which we think is entirely antithetical to a public health approach. We want to make sure that we are preventing drug use from happening. We want to make sure we have safe communities that are free from these substances to improve the probability that our youth are going to make healthier choices in their lives. So I do not see legalization of marijuana or any other drugs as enhancing that public health approach and have significant concerns about the availability of these substances and what it says to the youth of our country. Senator Grassley. We have a situation where a person by the name of Vinita Gupta has been nominated as Acting Assistant Attorney General for Civil Rights. In addition to being in favor of marijuana legalization, she has written that ``states should decriminalize simple possession of all drugs'' with emphasis upon ``all drugs.'' So based on your recent statement, I assume it is your view that Ms. Gupta's recommendation would be disastrous for public health if adopted. Mr. Botticelli. I cannot speak to exactly what her positions are, other than what I have read in the paper. I will tell you that this Administration remains firmly opposed to legalization and other liberalization of our drug policies. Again, that is not coming from an ideological perspective. It is really based on the robust scientific evidence that we have. Senator Grassley. Sure. My last question, and it follows on---- Senator Hirono. Feel free to. Senator Grassley. Thank you. It follows on with your discussion of opioids, but a little bit different. The Administration's most recent prescription drug prevention plan, issued April 2011, the plan focused on prescription opioids. One of its goals was to reduce deaths associated with these drugs. Since then we have seen an epidemic of prescription drug abuse develop even in my State and in many parts of the United States. So my last question is, do you think the plan needs to be revised in any way in light of the alarming developments over the last 3 years and if so, would you plan to issue one? Mr. Botticelli. Let me share with you what I think has been some significant progress that we have made since we implemented many of the strategies of that plan. So most recent data suggests that the misuse of prescription pain medication among youth and young adults has been dropping and for the first time in 15 years, we actually saw a decrease in prescription drug-related mortality. So we know and we are cautiously optimistic that our plan is taking root and taking hold. One of the things that has been a significant concern for us--although a smaller level--has been the dramatic increase that we have seen in heroin and heroin use rates. To really reflect that, our most recent 2014 National Drug Control Strategy talks about our continued efforts, both in terms of demand reduction and supply reduction efforts specifically focused on the heroin issue. We know that many newer users to heroin actually start their opioid addiction on prescription pain medication. So we know we have to keep up our efforts on that front and augment our plan to really focus on the heroin issues that we are now seeing taking hold across the country. Senator Grassley. I thank you for your questions. And I thank the other people for answering them in writing. Senator Hirono. Thank you Senator Grassley. I will submit a few more questions for Mr. Botticelli, if you can respond for the record. I would also like to enter into the record numerous letters of support for Mr. Botticelli. [The letters appear as submissions for the record.] Senator Hirono. I would like to thank all of you and your families and friends for being here and being available to respond to our Committee. The record will remain open for 1 week for submission of written questions for the witnesses and for the submission of other materials. With that, this hearing is adjourned. [Whereupon, at 12:56 p.m., the Committee was adjourned.] [Additional material submitted for the record follows.] A P P E N D I X Additional Material Submitted for the Record [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] NOMINATIONS OF MICHELLE K. LEE, NOMINEE TO BE UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND TRADEMARK OFFICE, AND DANIEL HENRY MARTI, NOMINEE TO BE U.S. INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE OFFICE OF THE PRESIDENT ---------- WEDNESDAY, DECEMBER 10, 2014 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:11 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman, presiding. Present: Senators Durbin, Whitehouse, Klobuchar, Franken, Blumenthal, Hirona, Grassley and Hatch. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. I was just apologizing to Senator Hatch for being late because of a family semi-emergency. I am so glad Michelle Lee and Daniel Marti are here today. These are nominees to two very important leadership positions. They are charged with supporting our Nation's creators and artists and inventors. Those are categories that showcase the best of America and they also need to be protected. I take a strong personal interest in these positions, both as the leader of this Committee and as the Senator from Vermont who is Dean of the Senate. These are important things. In our State of Vermont, we have a diverse range of artists, writers and creators. We are a State of only 625,000 people, but every year it ranks among the most innovative States, has the highest patents per capita of any State. We know firsthand that creators and innovators are the lifeblood of this country. They fuel our imagination. They create jobs. They contribute billions of dollars to the economy. It is probably the fact that we have had such creators in Vermont that we have always--even during the recent recession, some call it depression, we maintain the lowest unemployment rate in the country. The two nominations we are considering today play a central role promoting this important work. Intellectual Property Enforcement Coordinator or IPEC was created by legislation I authored in 2008. It was reported by this Committee and then in a Senate, sometimes called divisive, it passed the Senate unanimously. Our objective was to take a comprehensive approach to intellectual property enforcement within the U.S. Government. IPEC plays a valuable role bringing together members of the Internet ecosystem, addresses a complex problem of online IP theft. Earlier this year, Senator Grassley and I sent a letter to President Obama urging him to nominate someone to fill this position. It had been vacant for over a year. Today's confirmation hearing is an important step in filling the vacancy following the calls of Senator Grassley and myself. Compared to the IPEC, the position of the Director of the Patent and Trademark Office is not so new. Our Nation's first official charged with granting patents was Thomas Jefferson. That is kind of a proud lineage to be in--when he was Secretary of State. By serving America's innovators, the PTO helps Vermonters and citizens across the country build their businesses. Three years ago Congress came together to pass the Leahy-Smith America Invents Act. It is the greatest transformation to our patent system in over 60 years, not my words, but the words of most who followed it. The Committee worked for 6 years to pass that landmark legislation bringing our patent system into the 21st century. AIA sought to improve patent quality, creating new and more efficient administrative proceedings at the PTO and I want to hear more from Mrs. Lee about these and other efforts as the PTO continues its work delivering the promise of AIA. I am pleased in the funding bill released last night, we were able to assure that the PTO receives a budget of $3.46 billion, reflecting the amount that it collects for user-fees that are strengthened by the Leahy-Smith bill. Full funding of PTO should remain a priority and we have to do more work to strengthen our patent system. I think that is something that Senator Hatch, Senator Grassley and I would all agree on. We have been working over the past 18 months to address misconduct by bad actors who are abusing the patent system. Let me state that I will work with my colleagues on both sides of the aisle next year to address these so-called patent trolls who send threatening letters to small businesses in Vermont or Utah or anywhere else. They tie up companies across the country in bad faith lawsuits. They hamper innovation and harm our economy. We dedicated months of committed work to make some bipartisan progress this year and I am told by the new leadership of the Committee we will continue to do that. [The prepared statement of Chairman Leahy appears as a submission for the record.] I know that Senator Grassley has been delayed on an Agriculture matter which is important to both our States. Senator Hatch, did you want to make any comments? OPENING STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. Let me just say that I am pleased that these two nominees are here and that we are moving ahead. These are very important positions in our country and they are sorely in need of management so I am grateful to both of you for being willing to serve and we will have some questions for you, but that is par for the course. Thanks for being willing to serve and we appreciate the effort. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Daniel Marti is the managing partner of the Washington, DC, office of Kilpatrick Townsend and Stockton. He has spent his entire legal career specializing in intellectual property law, focused in trademark law. I am going to hear from both witnesses, but do you have members of your family here, Mr. Marti? Mr. Marti. I do. Chairman Leahy. So they will someday be in the Marti archives, that they will know who was here, would you please introduce them. Mr. Marti. Yes, with pleasure. My entire family is here, joining me and supporting me today on this important day. I have my mother and father, Enrique and Patricia Marti from Florida who just came in last night; my beautiful wife, Lauren; our two children Myles and Alyssa; my sister, Patty and her son; and my sister, Andrea, from Boston could not make it, but hopefully she is following online. Chairman Leahy. We have a tad bit of snow up northeast here. Mr. Marti. Yes. Chairman Leahy. I am hearing from a couple of my neighbors in Vermont. Michelle Lee currently serves as the Deputy Director of the U.S. Patent and Trademark Office. She was the first Director of the Silicon Valley Satellite Office to the PTO. She has served on the PTO's Public Patent Advisory Committee. She was Deputy General Counsel, head of patents strategy at a little startup company called Google. Ms. Lee, do you have members of your family here? Ms. Lee. I do, Senator Leahy. I have the privilege of having with me my husband, Christopher Shen; our 4-year-old daughter, Amanda Mavis; and my mother, Agnes Lee from Palo Alto, California. Chairman Leahy. Well, welcome to Washington. You must be awfully proud of your daughter, your wife and your mother. She is thinking hmm [indicating]. Our youngest was that age when I was sworn into the Senate. My parents were more impressed than he was at the time. [Laughter.] Chairman Leahy. So let me start. Who would like to go first with their statement? Mr. Marti, do you want to? STATEMENT OF DANIEL HENRY MARTI, NOMINEE TO BE U.S. INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE OFFICE OF THE PRESIDENT Mr. Marti. Thank you Chairman Leahy, Ranking Member Grassley and distinguished Members of this Committee. I am honored to have the opportunity to be considered by this Committee as the President's nominee to serve as the Administration's Intellectual Property Enforcement Coordinator or IPEC. I would like to thank the President for his confidence in my ability to serve in this important post and I thank Victoria Espinel for her remarkable leadership and service during her time as the first IP Enforcement Coordinator. As I mentioned a minute ago, I am joined here and supported today by my entire family including my 6-year-old daughter, Alyssa, and 9-year-old son, Myles, who may be the only children in their elementary school who speak about intellectual property matters while swinging from the monkey bars on the playground. I also would like to specifically acknowledge and thank my beautiful wife, Lauren, for her love and support. I know it may be often said, but it has never been more true, I am a better man because Lauren is in my life. This opportunity to serve my country is truly humbling. I am a first-generation American born in Washington, DC, of Spanish and Chilean parents who came to this country speaking little English. My father, Enrique, chose to leave the seminary in Germany where he was studying to be a Jesuit priest so he could teach philosophy and theology at a university in Washington, DC. My mother, Patricia, has dedicated her life to making sure that my two sisters and I have the chance to follow our educational and professional pursuits wherever they would lead. Their real sacrifices have allowed me to be here before this distinguished Committee, and for that I am immensely grateful. I currently serve as a managing partner of the Washington, DC, office of Kilpatrick Townsend and Stockton, which has one of the largest IP practices of any law firm in the country. I have devoted the entirety of my professional practice to matters concerning intellectual property enforcement. My clients have included companies in the fields of technology, banking, consumer products, entertainment media and sports, fashion and luxury goods, hospitality and gaming, and food, beverage and agriculture. Through these and other client representations, I have developed a deep and broad view of IP rights and IP policy. If confirmed, I will work to achieve a thoughtful and strong intellectual property system that encourages innovation, creativity and fair competition based on the rule of law. An effective intellectual property enforcement strategy must consist of a comprehensive and multifaceted approach to this dynamic issue, one that is well-positioned to anticipate and, indeed, respond to the evolving nature of intellectual property issues. An intellectual property enforcement strategy should, for example, involve sustained coordination among Federal agencies and enhanced sharing of information, focused diplomatic efforts, including engagement with trading partners, the use of trade policy tools and IP related training and capacity building, private sector voluntary best practices, the adoption of technological solutions and public awareness, education and outreach, to name a few. I will work to promote our ongoing efforts to protect intellectual property from unlawful infringement both home and abroad. These efforts will involve a broad range of stakeholders, including Congress, Federal Agencies, the private sector and public interest groups. Each of these stakeholders and the views and positions they represent will be key resources for me in pursuing the goals of my office. America's great spirit of innovation and creativity has been a primary driver of our economic growth and national competitiveness. Intellectual property is also critical to our balance of trade and intellectual property-intensive industries represent a substantial portion of our gross domestic product and support millions of jobs. Congress and Members of this Committee, in particular, had the vision to create the IPEC position in order to elevate the coordination of IP efforts across the United States and indeed internationally. And if confirmed, I look forward to building on the success and the momentum of the office and to carry forward the efforts of the United States Government's economic, criminal and national security agencies engaged in intellectual property policy and enforcement. Thank you, again, for the opportunity to appear before you. I look forward to answering your questions. Chairman Leahy. Thank you very much. Thank you for mentioning your parents' journey to this country. My paternal grandparents came to this country also not speaking the language, raised six children, started a wonderful business in Vermont and got to see their grandson come to the U.S. Senate. So we are, as I often add, a Nation of immigrants and better for it. [The biographical information and prepared statement of Mr. Marti appear as submissions for the record.] Chairman Leahy. We have been joined by Senator Grassley who was tied up, necessarily, at the Agriculture meeting. Did you want to say something and then I was going to have Ms. Lee speak? Senator Grassley. No. Let her speak and then before I ask questions, I will do a short opening statement. Chairman Leahy. Well, thank you very much. Ms. Lee, please go ahead. STATEMENT OF MICHELLE K. LEE, NOMINEE TO BE UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND TRADEMARK OFFICE Ms. Lee. Thank you. Chairman Leahy, Ranking Member Grassley and distinguished Members of the Committee, thank you for the opportunity to be here before you today. I am honored and grateful to President Obama for nominating me for such an important position and to Secretary Pritzker for her past and ongoing support. With me here today, as I mentioned and without whom I would not be here today, are my husband, Christopher Shen; our 4- year-old daughter, Amanda Mavis; and my mother, Agnes who traveled from Palo Alto, California. I was born and raised in the Silicon Valley, the daughter of an immigrant family that settled in a place that turned out to be one of the most innovative regions in our country, if not the world. My father was an electrical engineer. We spent our weekends and evenings tinkering, working together to fix or build things like a Heathkit handheld radio. In fact, all of the dads on the street that I grew up on were engineers, innovators in the truest sense of the word. It was not uncommon for them to work for companies founded by a person with a clever invention who patented that idea and who obtained venture capital funding to bring that technology to the marketplace. Some of the companies succeeded. Some of them did not. But for those that did, they created good jobs for families such as mine and in some cases, new products and services that revolutionized the world and the way in which we live. Seeing the process up close and personal growing up made a lasting impression on me. I wanted to contribute and to enable others to contribute to innovation. It is why I studied electrical engineering and computer science and later intellectual property law with a goal of representing innovative companies. While working at MIT's Artificial Intelligence Laboratory and HP's Research Labs as a computer programmer, I witnessed innovation at its inception. It was an exciting experience and one that I will never forget and that still informs my work to this day. Later as an attorney, I worked on patents and patent strategy for a then small company that grew into a Fortune 500 Corporation in the span of eight short years. Along the way, we built the company's patent portfolio from a few handfuls of U.S. patents to over 10,500 patents worldwide and in the process, I used many of the services offered by the USPTO. Through my experiences as in-house corporate counsel and before that as a partner in a Silicon Valley law firm, I represented a wide range of innovators, from independent inventors to Fortune 500 companies. I came to understand and practice many areas of intellectual property law and almost every aspect of patent law including writing patents, asserting patents, defending against patent infringement and licensing, buying and selling patents. I understand and appreciate from a business perspective the important value and uses of intellectual property for innovators and to our country. During the past 3 years, through my service on the USPTO's Patent Public Advisory Committee, then as the Agency's first Silicon Valley Satellite Office Director and now during the past year as the Deputy Under Secretary and Deputy Director, I have been leading the agency and have worked with a broad range of stakeholders from almost every industry, gaining first-hand understanding of the USPTO, its strengths, challenges, potential and opportunities. I have seen and worked with the impressive talent of the dedicated USPTO team. It is clear to me how the USPTO's work benefits our Nation's innovation. I believe the USPTO must remain focused on reducing backlog and pendency while maintaining the highest level of quality of both patents and trademarks. Given the increasingly global economy, it is also imperative that American companies have access to effective, cost-efficient and strong intellectual property protection overseas. In my current role, I have had the privilege of working on many of these initiatives and if confirmed, would continue to work on these important goals. I believe that our intellectual property laws and the USPTO play a critical role in advancing America's technological competitiveness, which is so necessary for our country's continued economic growth. If confirmed by the Senate, I commit to bring to bear all of my energy, creativity and intellect to protect and strengthen the intellectual property system that has served our country so well. Thank you. [The biographical information and prepared statement of Ms. Lee appear as submissions for the record.] Chairman Leahy. Thank you very much, Ms. Lee. That is most impressive. Again, like Mr. Marti, you speak of the contribution made to our country by those who come to our country, like my grandparents or my great, great grandparents. Senator Grassley has joined us. Did you wish to say something? Senator Grassley. Why do you not ask your questions and then I will give my statement and ask my questions. Chairman Leahy. That would be fine. Thank you very much. After I ask my questions--because I have to go, also something involving Agriculture, I am going to leave the gavel in the competent hands of Senator Whitehouse. Ms. Lee, 3 years ago we acted to modernize the patent system. We passed the, as I mentioned earlier, the Leahy-Smith America Invents Act. Now the PTO has already received over 2000 petitions for the AIA post-grant proceedings. The proceedings were designed to create an efficient forum, as you know, to provide a fast and cost-effective resolution for all challengers and patent holders. How is PTO implementing those provisions? What effect have you seen on patent quality since they were enacted? Ms. Lee. Thank you very much for your question, Senator Leahy. The PTO has been and has implemented three post-grant proceedings that resulted from the America Invents Act. They have been exceedingly popular with our stakeholders. In fact, in the last fiscal year, we received more than three times the anticipated number of filings. It has proven to be a cost-effective, faster method of resolving the issue of patent validity and the participants get the benefit of a panel of three technically trained adjudicators, jurists, deciding their cases. So they have been very popular. That said, the USPTO and if confirmed as Director, I would continue to work to improving those procedures. In fact, very recently we had an outreach to the Nation to get input on how we can further improve those proceedings. Chairman Leahy. Thank you very much. Mr. Marti, I was thinking of Victoria Espinel's tenure, the first IPEC, the office made great strides in voluntary agreements between stakeholders. You know from your own practice of law if you can find voluntary agreements, it is a lot quicker than having to litigate something. You have the important role there in addressing problems of counterfeiting, IP theft online. Last month, I sent a letter to the major credit card companies urging them to do more to prevent use of their payment networks for illegal activity. My staff has had some very good conversations with them. Visa, for one, has taken proactive steps with respect to a number of cyberlockers engaged in online piracy. Once the IPEC position is filled, I want them to continue these discussions and I would hope that IPEC would renew the office's work with advertising networks that are inadvertently sending money to illegal websites. How do you intend to build upon the agreements we have because it was one thing in the old Bonnie and Clyde days, somebody to drive up to the bank and steal it. Now, as you know, we are talking about billions of dollars that can be moved back and forth illegally. How would you work on this? Mr. Marti. Thank you, Senator. I agree that threats to the US IP interests are immense and growing both in size and scope. The private sector must be part of the solution. Intellectual property enforcement is a multipronged approach and voluntary initiatives are an important part of that approach. I look forward to working with the private sector to continue the good work of the office and continue to assess those voluntary initiatives from the past years and where improvements need to be made, certainly look forward to proposing some additional improvements to existing voluntary initiatives and looking for new ones. Particularly on the point that you mentioned, making sure that we can cut off funding from rogue sites, from infringers, from criminal enterprise, and part of that is going after the money through payment processors and also through the ad networks that also direct payments to these rogue websites. Chairman Leahy. Thank you. As you know, we can pass legislation, we can bring the lawsuits, but if you can work out the agreements, it is a lot quicker and they can usually be tailored to the problems we need. So I would encourage that. Speaking of legislation, over the past 18 months, as I mentioned earlier Ms. Lee, we have been trying to develop legislation to curb some of those people who are abusing the patent system. I still want to get through some patent troll legislation, for example. We have had some very positive steps. We have improved transparency. We have taken steps against bad faith demand letters. We have protected the end users. We tried to address frivolous lawsuits through targeted reforms. What do you think are the most valuable strategies we could use to go after the bad actors, but at the same time to protect the people the patent system is setup to protect, the legitimate patent holders and those who want to legitimately get a patent? Ms. Lee. Thank you, Senator Leahy. That is a very good question and it is something that I have been giving a lot of thought to. I think to strengthen the patent system we need to have change from really all aspects of our patent ecosystem. Legislation is certainly a piece of it. We are seeing a lot of changes now in the courts in terms of heightened discretion for attorneys fees and heightened definiteness requirements. I will say, Senator Leahy, the USPTO has taken on a lot of initiatives including an enhanced patent quality initiative, including making the patents that we issue clearer by having examiners putting more statements on the record so litigants are not litigating the same issue again years down the road. So through all of these efforts, I think what we need to do is we need to look at all of the issues, listen to our stakeholders and work with all of you to achieve the right balance for a meaningful and impactful patent reform. Chairman Leahy. Well, thank you. I will put the last of my questions in the record. I am glad that you are here and I think it is an important position and as Senator Grassley and I said in our letter to the President, it should be filled. [The questions of Chairman Leahy appear as a submission for the record.] Chairman Leahy. Senator Grassley. OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Thank you very much. I want to do an opening statement and then I will have 5 minutes of questions as well. I want to congratulate Ms. Lee and Mr. Marti for your nominations to serve as Director of the Patent Office and Intellectual Property Enforcement Coordination. You both have strong qualifications, a proven record in the field of IP law and are well respected among that IP community. Both the Patent and Trade Office and the Office of IPEC need strong and accountable leadership, so I am pleased that the President has submitted your nomination. The United States is at the forefront for innovating, creating and developing new technologies. Intellectual property supports technological advances in innovation. Intellectual property also plays a critical role in job creation and economic growth and balance of trade. In fact, the entire U.S. economy relies on some form or another of intellectual property because virtually every industry either produces or uses it. We need to ensure that intellectual property rights are protected here in the United States and abroad. Improved coordination between our government agencies will strengthen enforcement of our intellectual property laws. Enhanced cooperation by different industry stakeholders will also help protect our intellectual property. In addition, we need to be doing our best to utilize limited resources in the most efficient way possible and reduce wasteful duplication. The bottom line is that if we want the United States to remain a world leader in innovation and creativity, we must have a system in place that respects and enforces our IP laws. Consequently, now more than ever before, the Patent Office and the IPEC need strong capable leadership. These offices play a crucial role in promoting American innovation and economic prosperity, so there is simply too much at stake to settle for anything less. Speaking specifically to Ms. Lee, you have been nominated to a tough position, the continued implementation of the America Invents Act, clearing out the backlog of patents and trademark applications and putting a stop to abusive patent litigation are just a few of the many challenges facing that agency. Further, we have learned about time and attendance fraud, preferential hiring practice and other mismanagement issues at the PTO. These are very concerning findings and they will be corrected, I am sure, with your leadership. That is what I am hopeful about. Mr. Marti, you also are nominated to a position that will require a lot of smarts to bring together differing agendas and priorities. Your predecessor did a good job at working with the private sector to reach voluntary agreements on how to protect intellectual property against bad actors, but there is still much to be done. I am sure that you know that you have your work cut out for you. So I look forward to hearing more about how you both intend to lead these two important offices. I would like to have a paragraph here on the process. I would like to say a few words about what we are doing today in today's hearings. I think everybody in the room today, including the nominees, understand that there is not enough time for these nominations to be confirmed before we adjourn. We also know, of course, that when the new Congress is sworn in, this Committee will have new Members and those Members should have an opportunity to participate in a hearing. I expect that next year those new Members will have that opportunity. So I wanted to make sure that the nominees are on notice about that and don't have any false expectations. And what I just said here at the tail end is not meant to detract from what I said about your qualifications and the fact that we are glad that the President nominated you. Chairman Leahy. If the Senator would yield? I would hope that would mean that in January we would be moving on them because these have been vacant for some time as you and I said when we wrote to the President. Senator Grassley. Yes. I hate to be too advanced in what is going to happen, but I think it is a reasonable request and I think it is probably one that can be handled. Chairman Leahy. Thank you. Senator Grassley. I have questions. I am sorry. You got me all nervous there. [Laughter.] Chairman Leahy. If I got Senator Grassley nervous, it is the first time in his life anybody has made him nervous. And the fact that he and I have been friends for 30 years, I don't think I make him nervous. Senator Grassley. All right. I'm going to start with Ms. Lee--well, no. This will be for both of you. Mr. Marti, as you know, we have been working on patent reform legislation to deal with trolls. In your opinion, are they a problem? If confirmed, would you work with us on trying to resolve this issue and craft strong comprehensive legislation? Then I will have a question for Ms. Lee. Go ahead, Mr. Marti. Mr. Marti. Thank you, Senator Grassley. Abusive litigation is certainly a problem. I think we can all agree that a strong and well functioning patent system is something that is in this country's best interests and certainly if confirmed, I look forward to working with you, this Committee and with Congress to address abusive litigation of any sort. Thank you. Senator Grassley. Ms. Lee, kind of a gentle question, but an important one, what do you see as the most significant challenge facing the PTO? Ms. Lee. I think it is the PTO's obligation to issue the very best quality patents possible. I think we have taken huge strides in reducing our backlog and pendency. Since January 2019, we have reduced the backlog in pendency by 20 percent despite on average 4 percent year-over-year increases and filings. So I think the next priority, the very next priority beyond that is making sure that we issue the very best quality patents and we have steps well on the way to handle that. Senator Grassley. Yes, and I should have asked you the same question that I asked Mr. Marti. Is patent troll a problem, and if confirmed, would you work with us on helping deal with that issue, possible legislation? Ms. Lee. Yes, absolutely. There continues to be a problem with abuse of patent litigation and I believe that there can and should be further legislative improvements and I very much look forward to working with all of the Members and all of our stakeholders to striking the right balance. Senator Grassley. All right. Mr. Marti, your predecessor made significant progress in bringing stakeholders together to address the problem of Internet piracy through voluntary initiatives. However, there is still a lot to be done. What voluntary initiatives would you view as most critical in addressing Internet piracy and let me also ask the fifth question at the same time, what do you see as the most significant challenge at IPEC? Mr. Marti. Yes, thank you Senator Grassley. As I previously mentioned, what is important and effective IP strategies, it is a multipronged strategy. There must be varies initiative that we undertake. Here the private sector must be part of the solution. I absolutely look forward to carrying on the good work of the office and believe that voluntary initiatives have a very important role in our fight against online piracy. Specifically when it comes to online initiatives, the office's past initiatives that target payment processors with the transactions, monetary transactions to rogue websites, to criminal enterprises is of utmost importance that we get it right, that it is effective. If more needs to be done, then we need to do that. Similarly, where money comes through by the ad networks, that is another area where voluntary initiatives have proved to be useful and if confirmed, I look forward to assessing those initiatives and seeing if additional advancement can be made. Senator Grassley. Ms. Lee, I get a lot of information and ask a lot of questions from IG reports. The IG report concerning time and attendance problems at the PTO stated that ``The multiple hurdles and approval levels required to follow through with a time and attendance case along with senior management's reluctance to sustain proposed disciplinary or adverse action is a likely factor in the perception that the time and attendance abuse is overlooked and that it is fruitless to request any kind of records as part of an investigation. This leads to an erosion of supervisors following up with employee misconduct.'' Do you agree with the finding of the IG report and if so, what specific hurdles would you work to remove as the Director of PTO to ensure that misconduct is appropriately addressed? Ms. Lee. Thank you, Senator Grassley, for allowing me to address your concern and to answer your question. Let me just say that my senior leadership team and I take the allegations and the findings in the report very seriously. We appreciate the work of the OIG and we are working closely with the IG's Office to discuss and implement many, if not all, of their recommendations. Although these events occurred before my arrival at the USPTO, know that I will take all reasonable actions to strengthen the operations of the PTO, curtailing abuse of time and attendance and strengthening the telework program. To give you a sense, as I understand, when these issues came to the attention of PTO management, they immediately took action to implement additional controls, policies, procedures and training. Upon my leadership, I asked my team to double down on their efforts to find ways to prevent time and attendance abuse. So in September, we just provided additional training to all patent managers on time and attendance abuse. I have also established to cross-agency bureaus to prevent abuse and intervene early and to review the entire employee disciplinary process for consistency in application of our processes and I am also pleased to report that we have recently engaged the National Academy of Public Administration to review the entire Telework Program and its controls and to suggest additional best practices that we can implement to make sure that we have a telework program that is the gold standard. Senator Grassley. Mr. Chairman, could I ask one more question, then I will quit? Senator Whitehouse. Of course. Senator Grassley. All right. A follow-up on what you just told me and I do not question everything you said that you have done already, but specifically have there been any terminations of PTO supervisors or other agency employees as a result of alleged time and attendance abuse? If so, what role did you play in the disciplinary process? You probably have not heard me say, but I have said many times, that if there is abuse of the nature that we are talking about here, if heads do not roll, nothing really changes. Ms. Lee. Thank you, Senator. There have been terminations. They occurred before my arrival at the office. However, I will say that if I find time and attendance abuse at the agency, we will take all appropriate actions and that includes anything from termination to suspension to letters of reprimand, whatever is appropriate given the circumstances. Senator Grassley. I will have questions for answer in writing. That will be the last of my questions today. Senator Whitehouse. All right. Thank you Senator Grassley. Senator Hirono. Senator Hirono. Thank you Mr. Chairman. I congratulate both of our nominees for what I hope will be your confirmation to these important positions. I do have questions for Ms. Lee. You would be the first woman and the first person of color to head the Patent Office and that is historic. You, obviously, come to this path with a lot of background. I noted that particularly on the issue of patent trolls which this Committee spent a lot of time on, it is a matter of listening to the stakeholders and striking the appropriate balance. I appreciate that kind of perspective very much because I think that is the challenge in addressing the patent troll issues, is balancing what we should do because one person's patent troll is another person trying to protect his or her patent. Having said that, I know that you were the Director of the Silicon Valley Office and there are a number of satellite patent offices and I presume that one of the reasons that these satellite offices were opened was so that the Office of PTO could more directly work with the applicants, people who are submitting their applications. What have the satellite offices been able to do, particularly, to support the small inventors? Ms. Lee. Thank you, Senator Hirono, for your question. I did have the pleasure of serving as the first Silicon Valley Satellite Office Director. To really create the vision of what would these satellite offices that you, Members of Congress, with your foresight created--and let me just say Senator, those are incredible offices both in terms of providing the services of the USPTO to our local innovation communities. We have small startups, small entrepreneurs who do not have the resources to come to Washington to interview their patent applications or to learn about the patent rules or to provide input on what the PTO does. Now with these four satellite offices located throughout the country in Denver, Dallas, Detroit and the Silicon Valley, what it means is that all of our innovators, large and small now have easier access to both the educational content that we provide. We hear their input more directly, they are able to examine or interview their cases either via video or in person and that makes a huge difference. That means we issue better quality patents more quickly. So I think there's all upside to the satellite offices. And I can go on and on but I will stop right there. Senator Hirono. As a result of these satellite offices, are you getting more applications from the small inventors or has that been pretty much a stable situation or are these offices really focused much more on the quality of the patent applicants? Ms. Lee. So they are just coming online so it is too soon to say how many more but we have a lot of education and outreach. So we are talking to small inventors on the ground, informing them and educating them about the patent process and the advantages of and the services that we offer. So I anticipate that we will be getting more, but I also anticipate that we will be able to issue better quality patents faster because they are more informed about our process. We understand their technology better and all of that just leads to---- Senator Hirono. Is there any plan to open more satellite offices? We would like one in Hawaii. [Laughter.] Senator Hirono. As would everybody else here probably, in their States. Ms. Lee. I appreciate the question, Senator Hirono. I don't know of any current plans and I know we are very busily working to implement and open the four satellite offices of which we have all of them open in temporary locations and two open in a permanent and we are looking to open the other two permanently. Senator Hirono. Well, you come from a family of engineers and you, yourself, have a background in science and technology, so that is one of the ways that our country can remain competitive. Are there things that PTO is doing to support STEM education for our young people? Ms. Lee. Yes. Thank you, Senator Hirono, for the question. I care deeply about STEM education to our youngsters and the USPTO has a whole range of initiatives, including for example, I had the pleasure--and one of the most pleasurable opportunities I had was going down to Camp Invention which was an elementary school program in Alexandria, Virginia. We basically partner with Invent Now. We have school aged children, ages 12 and under, and they are basically given literally a pile of junk, boxes, motors, wheels and they are asked to create something and write their inventions down in a notebook and really provide a patent disclosure. So I think getting more women and all aspects of our society involved in STEM, having come from that background, is hugely beneficial to our country, our economy and the USPTO has many initiatives underway, including things like Camp Invention and including an effort to have a Girl Scout patch for IP and innovation. So I am very pleased about those efforts and I look forward to continuing and expanding those efforts. Senator Hirono. Thank you. Thank you Mr. Chairman. Senator Whitehouse. I now turn to Senator Hatch who is a distinguished leader on these intellectual property issues and is my Co-chair of the Antipiracy Caucus. Senator Hatch. Senator Hatch. Thank you so much, Mr. Chairman. I also appreciate your leadership in these areas. Ms. Lee, some have argued that 35 U.S.C. 101 which governs patent eligibility should be reformed for the good of the patent system. Could you tell me your thoughts on that particular issue? Ms. Lee. Thank you, Senator Hatch, for your question. The case law is undergoing a lot of change in the area of patent eligible subject matter. The Supreme Court has issued many rulings. We are in the process of interpreting those rulings and issuing guidance and as to whether or not a legislative solution is appropriate, I think we should be open to and if confirmed, I wouldn't be open to evaluating everything including legislation on that issue and others because it is really the totality of all of these issues that will make a difference I think. Senator Hatch. We need your help on that if it comes to that, but you can make a lot of internal changes that would help there too, it seems to me. For the better part of the year, Congress worked toward a legislative solution to combat patent trolls which has been raised here. I am determined with many of my Committee colleagues to make such patent reform a priority early this next year. Just tell me what you think USPTO's rule should be in this process and do you agree that the USPTO does not have subject matter expertise or jurisdiction over proposals to reform pleading standards, discovery, fee-shifting and recovery of awards? Ms. Lee. Thank you, Senator Hatch, for your question. By statute, the Director of the United States Patent and Trademark Office is to advise the President through the Secretary of Commerce on Domestic and certain international intellectual property matters and policy matters. At the request of Members of Congress, we do provide input, but that is at the request. Senator Hatch. Do you agree that USPTO does not have subject matter expertise or jurisdiction over proposals to reform pleading standards, discovery, fee-shifting and recovery of awards, all legal issues? Ms. Lee. We work with our stakeholders, we get their input and at your request, we facilitate and help you in your efforts. Senator Hatch. What are your thoughts about the proposed shift from the broadest reasonable interpretation, the BRI, at the USPTO's Patent Trial and Appeal Board to a district court style claim construction? And I might add, how does changing the BRI standard help in combating patent trolls? Ms. Lee. Thank you very much for the question, Senator Hatch. That was one of the issues that was considered in the last round of patent reform discussions and it is the standard by which the USPTO interprets the scope of the claims and the question is sort of how broad or narrowly--the broader the interpretation, the more one can uncover. So again, I think this is a very important topic and it is one of the many topics that if we move forward in the 114th Congress, which I understand that is likely to happen, that we look forward to having conversations with our stakeholders about that and with all of you and working together with all of you on that. Senator Hatch. Well, thank you. In view of the Supreme Court's recent decision in Alice Corporation v. CLS Bank International, do you know when the USPTO plans to issue concrete guidelines to examiners? And as I am sure you can appreciate, there is a mounting backlog of applications caused by this delay. Ms. Lee. Thank you, Senator, for the question. When CLS Bank came out around the summertime, we immediately issued some preliminary guidance and since then, we have been receiving input from the public on that guidance and we are working very hard. We have reviewed it and we have updated our guidance, in fact, as recently as last Friday, there was a new case law development from the Federal Circuit and we have incorporated that into our guidance and I am pleased to say that it is working its way to the Federal Register notice for publication. The public will be able to see it. We look forward to working with the public to receive their comments on our updated guidance. Senator Hatch. Right. Mr. Marti, we congratulate you on this as well as Ms. Lee. These are very important positions and I look upon them as extremely important, myself. Let me just ask you one question. As you may know, there is strong bipartisan bicameral support for creating a harmonized uniform Federal standard for protecting trade secrets. Here in the Senate, Senator Chris Coons and I introduced the Defend Trade Secrets Act and in the House, Representative George Holding introduced the Trade Secrets Protection Act. Now through our collective efforts, we have shed light on an often- overlooked form of intellectual property. If confirmed, we will need your support in pushing this critically important legislation forward next Congress. Can I count on you to help us do that? Mr. Marti. Yes, Senator. As a practitioner in the private sector, I appreciate the fact that trade secrets is often overlooked. Infringement of any intellectual property, but particularly trade secrets, is a threat to dichotomy, the news that we have been seeing trickling out, unfortunately it seems like week, after week, after week of U.S. innovation being stolen is an issue that needs to be addressed and addressed aggressively and if confirmed, I look forward to working with Congress in an appropriate manner. Senator Hatch. Mr. Chairman, if I could just ask a followup on that. The lure of advertising revenue continues to fuel online piracy across the globe. Now a recent study examined 600 websites around the world dedicated to the theft of intellectual property. The study concluded that the websites generated an estimated $227 million per year in advertising revenue. Now for sometime the International Creativity and Theft Prevention Caucus, on which I serve as the Co-Chairman, has called on the advertising industry to cutoff these profits and cripple the capabilities of these bad actors on the internet. Now through voluntary best practices, we have seen progress in combating online piracy. Have you given much thought to how you might collaborate with industry stakeholders to keep advertising dollars off of illegitimate websites? Mr. Marti. Yes, thank you, Senator. Companies do not want to see their own ads appear on these rogue websites and the ad networks do not want to place them there. So it is important that we get together will all stakeholders, that includes internet companies, the ad networks, the payment processors to understand how we can have an effective and meaningful solution to make sure that these ads are not placed there in the first place. The IPEC Office did move forward with voluntary initiatives and I think that is an important first step, but there certainly are some additional steps to go. If confirmed, I look forward to assessing the existing voluntary initiatives in this space and bringing these and new stakeholders back to the table and see what more can be done to ensure that we stamp out payments to these rogue websites. Senator Hatch. Well, thanks to both of you and thank you, Mr. Chairman. I appreciate that. Senator Whitehouse. Senator Klobuchar. Senator Klobuchar. Thank you very much, Mr. Chairman. Thank you to both of you. I am excited for you for your new jobs. It could not be more important. Senator Franken and I have a State where we have one company where we actually have more patents than they have employees, that would be 3M. So they have a patent for each employee. We care a lot about intellectual property. Making things, inventing things is one of the reasons that we actually have the lowest unemployment rate in our metro area of any metro area in the United States. And our unemployment rate for our State is down to 3.9 percent. I believe it is really--given that we do not have some major energy source, like our neighbors in North Dakota--it is a combination of a diverse economy but it is also a lot about this idea that you can come up with new technology and invent new things and cross new frontiers and that is what has made this country's economy strong. So that is why I see your jobs as so important. Ms. Lee, some of my colleagues have addressed the issue of excessive litigation in the patent troll issue. I appreciated the work of Senator Leahy on this and I was in the group that was trying to craft a bill so that we could go forward. It was disappointing to me that we were not able, despite Senator Leahy's valiant efforts, to get that done and I hope that we are going to get it done in the future. Prior to your current service with the Patent and Trademark Office, you served as Deputy General Counsel at Google. How did that experience inform your outlook on issues faced at the PTO? And I think you know that while some patent holders are big tech companies like Google, others are industries that are smaller and how do you work with some of the other industries around besides tech? Ms. Lee. Thank you, Senator Klobuchar, for your question. I guess I would say that my background and experience is very diverse. I have been in the intellectual property field my entire career, going on 25 years now. I have worked for a whole range of interests. I have asserted patents where a small innovator came up with an invention, invested money in it, developed a company around it and found a big company infringing it. I have represented defendants in patent litigation cases. I have bought, licensed, sold and wrote patents, so I would like to think that all of those experiences through a wide range of industries come to bear and would help me do my job if confirmed as director of the USPTO. Senator Klobuchar. All right. Thank you. As part of the America Invents Act, there is a grace period for public disclosure of inventions prior to the filing of a patent application. But I know that intervening disclosures by third parties can have an impact on the grace period. Do you have any comments on the practice and do you see any changes that are needed? Ms. Lee. It is an issue that we are looking at and that we were discussing with our counterparts across overseas as well as with our stakeholders. So I think I would like to have further conversations on that, but I know it is an important issue. If confirmed, I look forward to digging into it more deeply and coming up with a sensible proposal. Senator Klobuchar. Thank you. I appreciate that. The Supreme Court considered a number of different patent cases in the last term on issues from fee-shifting to patent eligible subject matter. How will these decisions impact your work and how is the PTO working to apply the Alice decision and the follow-on case in the Federal Circuit, DDR Holdings ? Ms. Lee. Yes, the Supreme Court has been very active in patent cases, including panel eligible subject matter and we have to give guidance to 8000 of our examiners as they examine patents on a daily basis. So this is a very real issue for the United States Patent and Trademark Office and as soon as that one came down from the Supreme Court, we issued preliminary guidance. As I had mentioned earlier, we put that out for the public comment. We have received those comments. We have updated the guidance and I have signed and the public should expect to see a Federal Register ``Notice'' on our updated guidance on patent eligible subject matter, including on the implications of the Alice case. So we look forward to working with the public on an ongoing basis to iterate, to get it right provided we stay within the confines of the case law and the laws of Congress. Senator Klobuchar. Okay. That is a good idea. There has been a lot of discussion about the backlog of patent applications at the PTO. I know that some progress has been made. What more can we do to reduce the backlog and do you view this issue mostly as an issue of resources and fees or are there other things that can be done? Ms. Lee. Thank you, Senator Klobuchar, for that question. Members of Congress have been good enough with their foresight, through their America Invents Act, to give us fee-setting authority. So we now are in a position where we get the full amount of our estimated fees via appropriations this year and hopefully in subsequent years as well. So that has helped tremendously. What do we intend, if confirmed, to do to reduce the backlog further? I will say that, as I mentioned earlier, there has been a 20 percent reduction despite a 4 percent year-over- year increase in filing, but we are hiring additional examiners including through our satellite offices. This is the first time in U.S. history where we can hire talent outside of the DC area and there is lots of technical talent in all of the regions where the satellite offices are. Senator Klobuchar. Surprise. [Laughter.] Ms. Lee. So it is a real advantage, I think, for the agency in terms of reducing the backlog. Senator Klobuchar. I had never thought that through. That is a very good idea. Ms. Lee. Right. So hiring and being efficient in our prosecution and working with our stakeholders, we look to further reduce the backlog. Senator Klobuchar. And I am just going to leave you with one example and you do not have to really respond to it, but that I heard at a roundtable I did last year on patent issues and trying to get the reform done. This was with patent stakeholders in Minnesota and it is about an infusion pump used to administer critical medicines to patients, including premature babies. The maker of these pumps has been sued by a patent troll who is claiming that the infusion pump infringes on a fuel delivery system that is intended for tractor- trailers. So I just want to leave you with that. We can send you the details, but those are the kinds of things were seeing all of the country and whatever ideas you have about how we deal with this, I just do not want to slow down what I see as an increasing economic boom when it comes to new inventions and making things again in America. So thank you very much. Senator Whitehouse. Senator Franken. Senator Franken. Thank you. I just want to make something clear that Senator Klobuchar talked about. 3M does not have a patent on each employee. [Laughter.] Senator Franken. It is not that kind of company. We have one for every employee. Senator Klobuchar. Good. Thank you for that. I appreciate that. Senator Franken. You are welcome. Senator Klobuchar. And he invented the Post-it Note. No, I'm kidding. [Laughter.] Senator Franken. Well, that is an issue I have with 3M. Mr. Marti, congratulations on your nomination. Part of the mission of IPEC is to address the problem with counterfeit medicines that may enter the US supply chain. This is an area I have worked on in the HELP Committee. I helped write a bill on compounded medicines. That bill was combined with another bill on the drug supply chain, and I was actually proud that we got that done in the law. Now, counterfeit drugs are those that are produced and sold unlawfully with the intent to deceive consumers about the drugs' origin, authenticity or effectiveness. These drugs pose real health risks. They may be contaminated or contain the wrong active ingredient or none at all. They may have the right active ingredient but the wrong dose. Partly because of the legislation that I mentioned, the FDA has been actively working on this issue and drug manufacturers and distributors are increasingly investing in countermeasures such as authentication technologies to try to minimize the impact of counterfeit drugs. Mr. Marti, what do you see as IPEC's role and what steps would you anticipate taking on this important issue? Mr. Marti. Thank you, Senator Franken. I share your view. I am troubled by the significant threat that counterfeit pharmaceuticals pose to the American consumer. Intellectual property theft is troubling, but when it deals with issues like pharmaceuticals and frankly, even automotive parts, electronics that pose a threat to the health and safety of our citizens, more needs to be done. IPEC, I believe, serves a very important role to help coordinate these functions. As you are aware, my predecessor focused on some voluntary initiatives including CSIP, the Center for Safe Internet Pharmacies. In 2013, CSIP members took down or blocked 5 million sites that were violating policies relating to the sale of prescription drugs. And more recently, CSIP participated with FDA and law enforcement officers to shut down more than 18,000 illegal pharmacy websites. It is that type of sharing of information and coordination across Federal Governments and across Federal Agencies that is necessary to combat this serious issue. Senator Franken. Well speaking of shutting down websites-- this is something maybe we can work together on outside of this hearing--we had an attempt a while ago, and it has been mentioned here a couple of times, intellectual piracy and we have touched on voluntary actions on intellectual property and on websites that sell intellectual property. Do you see any role, possibly, in again coming back to legislation to do something to create some framework to use the law to stop that? Mr. Marti. Thank you, Senator. If confirmed, I look forward to carrying out the statutory responsibilities at the office that is helping to coordinate the effective enforcement of intellectual property. That does require a multipronged approach and for us to look, as you mentioned, certainly at voluntary initiatives but also many other aspects. To the extent that there may be additional legislative solutions to some of these issues, then I look forward to partnering with this Committee and with Congress to do so. Senator Franken. I would like to talk to you about that. Ms. Lee, also congratulations. You said your goal is to reduce the total time that patent applications are pending to approximately 21 months by 2018. What are the main steps you will take to accomplish that and how will you balance those efforts with the important work you have been leading to improve quality standards for those examinations? Ms. Lee. Thank you, Senator Franken, for the question. We will increase our hiring. Last year, we hired 1000 examiners and we are projected to hire at least 750 in 2015, including, as I had mentioned, through our satellite offices. We intend to continue with what we call efficient prosecution which is, the examiner identifies all grounds for rejection upfront and early so that there can be a more informed discussion earlier on. We intend to encourage and promote additional interviews between applicants and the office to, again, more quickly identify what is the patent eligible subject matter and issue the patents more quickly. We are also working with our international counterparts on worksharing. So there is a lot of redundancy in what the patent offices do throughout the world and we are not rubber stamping it, but we can certainly benefit by leveraging some of the work that they have done and then adding more to it. So those are some of the initiatives we have underway and if confirmed, I would look forward to continuing and expanding to reduce the backlog and pendency. Senator Franken. Thank you. Senator Whitehouse. Senator Durbin. Senator Durbin. Thank you very much, Mr. Chairman and thank you for chairing this hearing. I never took a patent law course in law school. I remember there was one fellow there who was an engineer who said he was going into patent law and I had to ask somebody what that meant. So I do not profess to be an expert, though I sit on a panel that is supposedly charged with the responsibility of evaluating and changing, if necessary, the patent law. The first round in 2011, when we did the America Invents Act, was an eye-opener for me. I went back to my State of Illinois, which is very diverse in terms of manufacturers and universities and inventors and so forth, and I was determined to make sure that whatever I did met with their approval because I think it is an important part of the growth of the American economy. So they proposed a number of amendments to the original act. I worked with the Chairman, added those amendments in good faith and then proceeded to vote for the bill. They all called me and just went ballistic, said why did you vote for that bill? And I said it included the changes you wanted. They said, but it is a bad bill. It is one of those eye-opening moments when you say I wonder if there is a good bill out there somewhere. The America Invents Act passed. I understand it was the first major patent reform in over half a century. I do not know if that is accurate, but I will take that at face value. Now a few years later, we were asked to amend it again. I stepped back and said this time I am going to invite the world to come in and tell me what they think about the change. The world showed up and told me, for the most part, they thought it was unnecessary and premature. This morning I received a letter, maybe others did as well, from a diverse coalition. This coalition included major universities, the Association of American Universities, Public and Land-grant Universities, University technology managers, American medical colleges, the biotech industry organization, the Innovation Alliance, the medical device manufacturers, pharmaceutical research and manufacturers, and others signed a letter and basically said slow down. Things are changing dramatically. Let me read one paragraph of that letter. I would like, Ms. Lee, if you would respond to it. After summarizing all of the things that have occurred over the last 7 years, ``Taken together these judicial and administrative developments and the plunge in patent litigation rates have fundamentally changed the landscape which patent legislation should be considered. As Congress considers potential changes to the patent system that threaten the constitutionally guaranteed property rights of innovators, it must assess the full affects of the AIA, changes to the Federal Rules of Civil Procedure's, case law developments and administrative developments.'' They are urging caution. We are in a time of change, from their point of view. Do you agree? Ms. Lee. Thank you very much, Senator Durbin, for your question. I could not agree more. The patent landscape that we are living in, the patent environment is extremely dynamic. Probably the issues mentioned in your letter, changes occurring in the courts, lots of changes occurring at the U.S. Patent and Trademark Office as well. We implemented the AIA post-grant review proceedings. They are very popular. Stakeholders are filing petitions. So all of this needs to be taken into account as we carefully and cautiously determine what additional changes need to occur. And changes can occur through any number of channels. They can occur judiciously, they can occur legislatively and they can occur administratively through the Patent Office, through the FTC. But I look forward to, if confirmed, working together with all of the stakeholders and all of the Members of Congress to strike that balanced meaningful reform. Senator Durbin. Ms. Lee, what is a patent troll? As I go around and speak to people involved in this, many people call them advocates. Others call them trolls. Some say it is a systematic exploitation of our existing system. Others say the only way to protect intellectual property is litigation, particularly, when it is David versus Goliath. What is your definition of patent troll and do you see this as a problem? Ms. Lee. So thank you for the question, Senator. I do not think it is productive to define patent troll. I think people have different definitions. I think the important thing is to focus on abusive behavior and work together to find out what we can do to curtail abusive behavior. Senator Durbin. Do you note the change in patent litigation, the rate of patent litigation being filed? Ms. Lee. I understand that there is a study that has been conducted. It is based upon a limited time period. I think we should definitely be keeping our eye on that because as I said, the patent landscape is very dynamic. There are lots of changes occurring including many at the PTO. So I think we absolutely need to keep our eye on this one. Senator Durbin. Thank you. Thank you, Mr. Chairman. Senator Whitehouse. Ms. Lee, Mr. Marti congratulations on your appointments and congratulations on the exemplary performance through a tedious hearing of Amanda, Alyssa, and Myles. As a parent, I appreciate how well behaved they have been through what must be a really tedious time for them. We have a number of letters supporting your nominations, including for Mr. Marti, letters from the International Trademark Association, the Chamber of Commerce, the Copyright Alliance, the Motion Picture Association of America, the National Music Publishers Association, and the American IP Lawyers Association. For Ms. Lee, from the International Trademark Association, the American IP Lawyers Association, Engine Advocacy, the Asian-Pacific Islander American Chamber of Commerce and Entrepreneurship Group and 39 general councils and chief legal officers of American companies coordinated through the National Asian Pacific American Bar Association as well as a group of 220 attorneys, academics and executives in the high- tech pharmaceutical and biotech and semiconductor fields. So without objection, those will all be put into the record. [The letters appear as submissions for the record.] Senator Whitehouse. Mr. Marti, one of the things about being a Senator is you get a 6-year term and you get a certain amount of time in. I can remember Ms. Espinel coming here some time ago to talk about the progress that she intended to make on dealing with the criminal activity that steals American intellectual property, particularly entertainment content, and provides it to viewers and that they were going to work really hard with other American corporations that were supporting that activity to try to knock it down. So while we were having this hearing, I picked up my iPad and I went to Google and I Googled pirate movie and Google gave me the Pirate Bay, which is an illegal enterprise operating out of Sweden. And if you go to the page where you would get access to the pirate content, it says ``Get Access Now'' and underneath it you have the flags of Visa, of MasterCard, of American Express, of Cirrus and of PayPal. And below that, it tells you all of the devices that it works on and shows you the logos of Apple, Android and so forth. It looks to me like this criminal activity is still being wrapped around with the apparent support of a wide variety of American corporations. Explain to me how there has been progress made. Mr. Marti. Thank you, Senator. Criminal actors, criminal enterprises have no limit. Senator Whitehouse. They actually do. There are ways in which these companies could go to court and try to knock this stuff down. There are ways in which prosecutors can have discussions with companies about aiding and abetting offenses and about being accessories to offenses. There is a lot that can be done in this area, it seems to me. Mr. Marti. Absolutely. I fully agree. What I meant to say is that these criminal enterprises will continue to put up some sites and wrap themselves with some level of authority by putting up some logos of some companies and pretending to be something they are not. So it does require a forceful and coordinated IP enforcement effort to continue to go after site, after site, after site that does engage in criminal activities. Senator Whitehouse. You were the former counsel to Google in these areas, were you not, Ms. Lee? Ms. Lee. I was deputy general counsel and head of patents and patent strategy. Senator Whitehouse. Does Google have the capability to know that it is alerting users to pirate websites and find a way to take them down? That would seem to be within its technical capacity. Ms. Lee. So, Senator I do not know the answer to that question. I do not know the answer to that question. Senator Whitehouse. You would think that if you guys were really pushing this issue very hard she would know the answer to that question, having been deputy general counsel to Google. So I hope that this effort will get some added momentum. There are people whose jobs depend on this and there are industries that will succeed or fail based on our ability to have the rule of law prevail in this area and the vacancy that has existed in this position now for more than a year is not your fault, but it is not a signal of great attention. And when I am looking at the exact kind of website that Ms. Espinel talked about trying to get rid of through a voluntary process, it causes me some real concern about whether that voluntary process is actually working and getting the attention that it deserves. Mr. Marti. Senator, progress has been made but there is certainly more work to be done and if confirmed, I look forward to carrying out the statutory responsibilities of the office. Thank you. Senator Whitehouse. The last thing that I will mention is that we had long conversation about the intellectual property theft that was taking place, not so much of entertainment content, but of technical specifications, chemical formulas, manufacturing processes and so forth, largely China driven. That appears to be their policy, to increase their technical and manufacturing capacity by stealing from American companies largely through a cyber means of access. The Department of Justice finally brought an indictment against PLA officials and that seems to have had a somewhat salutary effect. Would you comment on what you see as the effect of the DOJ indictment of the Chinese officials who are actively engaged in stealing American intellectual property for the purpose of advancing Chinese business interests? Mr. Marti. Thank you, Senator Whitehouse. Yes, the theft of this type of data, technical know-how, trade secrets undermines national security and puts jobs at risk. The IPEC office, under statute cannot direct law enforcement action, but certainly can help coordinate, bring to light and help share information across some Federal Agencies. From where I sit in the private sector, I certainly have read and spoken to some clients about those indictments. Like you, many of them cheered the indictments as showing that the U.S. is serious and will not tolerate this type of very critical and serious threat. Certainly others in industry show some concern that there might be some retaliation when the Government takes these actions. I trust that the Department of Justice and the Federal Government have taken all of these issues into account and felt that it was still necessary to call out these bad actors who have been engaged in trade secret misappropriation and IP theft. If confirmed, I look forward to working with those in other agencies for an effective IP policy going forward. Senator Whitehouse. Good. Well, I wish you both well as you go forward. I think it was very good to see bipartisan support and you also saw key and substantive interests in the areas that you will be entering, so get ready. And we hope that if your nominations cannot be cleared in this particular Congress, that they will be taken up and rapidly cleared in the Congress ahead of us. Thank you for your time. The hearing record will stay open for 1 week and I wish you both well. Congratulations. [Whereupon, at 11:29 a.m., the Committee was adjourned.] [Additional material submitted for the record follows.] A P P E N D I X Additional Material Submitted for the Record [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]