[Senate Hearing 113-515, Part 8] [From the U.S. Government Publishing Office] S. Hrg. 113-515, Pt. 8 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION ---------- MARCH 12, APRIL 1, MAY 13, and MAY 20, 2014 ---------- Serial No. J-113-1 ---------- Part 8 ---------- Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] S. Hrg. 113-515, Pt. 8 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ MARCH 12, APRIL 1, MAY 13, and MAY 20, 2014 __________ Serial No. J-113-1 __________ Part 8 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] ______ U.S. GOVERNMENT PUBLISHING OFFICE 24-285 PDF WASHINGTON : 2017 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman 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 ---------- MARCH 12, 2014, 9:30 A.M. STATEMENTS OF COMMITTEE MEMBERS Page Durbin, Hon. Dick, a U.S. Senator from the State of Illinois presenting Staci Michelle Yandle, Nominee to be District Judge for the Southern District of Illinois.......................... 5 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, prepared statement........................................... 246 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement........................................... 245 PRESENTERS Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania presenting Cheryl Ann Krause, Nominee to be Circuit Judge for the Third Circuit............................ 3 Heller, Hon. Dean, a U.S. Senator from the State of Nevada presenting Richard Franklin Boulware II................................... 9 Murray, Hon. Patty, a U.S. Senator from the State of Washington presenting Hon. Salvador Mendoza, Jr., Nominee to be District Judge for the Eastern District of Washington................... 2 Reid, Hon. Harry, a U.S. Senator from the State of Nevada presenting Richard Franklin Boulware II................................... 11 Toomey, Hon. Patrick J., a U.S. Senator from the State of Pennsylvania presenting Cheryl Ann Krause, Nominee to be Circuit Judge for the Third Circuit.............................................. 4 STATEMENTS OF THE NOMINEES Witness List..................................................... 25 Boulware, Richard Franklin, II, Nominee to be U.S. District Judge for the District of Nevada..................................... 7 biographical information..................................... 77 Krause, Cheryl Ann, Nominee to be U.S. Circuit Judge for the Third Circuit.................................................. 7 biographical information..................................... 26 Mendoza, Hon. Salvador, Jr., Nominee to be U.S. District Judge for the Eastern District of Washington......................... 8 biographical information..................................... 117 Rodriguez, Leon, Nominee to be Director of the U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. 10 biographical information..................................... 198 prepared statement........................................... 242 Yandle, Staci Michelle, Nominee to be U.S. District Judge for the Southern District of Illinois.................................. 10 biographical information..................................... 162 QUESTIONS Questions submitted to Nominees Richard Franklin Boulware, II, Cheryl Ann Krause, Hon. Salvador Mendoza, Jr., and Staci Michelle Yandle by Senator Cruz................................ 282 Questions submitted to Richard Franklin Boulware, II, by Senator Grassley....................................................... 254 Questions submitted to Cheryl Ann Krause by Senator Grassley..... 249 Questions submitted to Hon. Salvador Mendoza, Jr., by Senator Grassley....................................................... 258 Questions submitted to Leon Rodriguez by: Senator Feinstein............................................ 248 Senator Grassley............................................. 266 Follow-up questions submitted by Senator Grassley............ 273 Senator Hatch................................................ 280 Questions submitted to Staci Michelle Yandle by Senator Grassley. 262 ANSWERS Responses of Richard Franklin Boulware, II, to questions submitted by: Senator Cruz................................................. 307 Senator Grassley............................................. 299 Responses of Cheryl Ann Krause to questions submitted by: Senator Cruz................................................. 296 Senator Grassley............................................. 283 Responses of Hon. Salvador Mendoza, Jr., to questions submitted by: Senator Cruz................................................. 319 Senator Grassley............................................. 310 attachment................................................... 321 Responses of Leon Rodriguez to questions submitted by: Senator Feinstein............................................ 347 Senator Grassley............................................. 348 Follow-up questions submitted by Senator Grassley............ 371 Senator Hatch................................................ 345 Responses of Staci Michelle Yandle to questions submitted by: Senator Cruz................................................. 343 Senator Grassley............................................. 335 LETTER RECEIVED WITH REGARD TO RICHARD FRANKLIN BOULWARE, II American Bar Association, January 17, 2014, letter............... 396 LETTERS RECEIVED WITH REGARD TO CHERYL ANN KRAUSE American Bar Association, February 6, 2014, letter............... 389 Bibas, Stephanos, et al., March 7, 2014, letter.................. 393 Brest, Paul, et al., March 10, 2014, letter...................... 391 Clarification by Cheryl Ann Krause to the U.S. Senate Committe on the Judicary, March 13, 2014, letter........................... 395 LETTER RECEIVED WITH REGARD TO HON. SALVADOR MENDOZA, JR. American Bar Association, January 17, 2014, letter............... 398 LETTERS RECEIVED WITH REGARD TO LEON RODRIGUEZ Grifa, Lori, January 15, 2014, letter............................ 408 Hawkins, Dennis R., Esq., January 27, 2014, letter............... 410 Honda, Hon. Michael M., a Representative in Congress from the State of California, February 14, 2014, letter................. 412 Johnson, J. Alan, January 9, 2014, letter........................ 402 Manger, J. Thomas, January 14, 2014, letters..................... 404 Major Cities Chiefs Association, January 14, 2014, letter........ 414 Wallenstein, Arthur M., January 14, 2014, letter................. 406 LETTER RECEIVED WITH REGARD TO STACI MICHELLE YANDLE American Bar Association, January 17, 2014, letter............... 400 MISCELLANEOUS SUBMISSION FOR THE RECORD Ros-Lehtinen, Ileana, a Representative in Congress from the State of Florida,.................................................... prepared statement with regard to Leon Rodriguez, Nominee to be Director of the U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security............. 415 C O N T E N T S ---------- APRIL 1, 2014, 10:04 A.M. STATEMENTS OF COMMITTEE MEMBERS Coons, Hon. Christopher, a U.S. Senator from the State of Delaware....................................................... 417 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 418 PRESENTERS Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting Hon. Beth Bloom, Nominee to be District Judge for the Southern District of Florida; Paul G. Byron, Nominee to be District Judge for the Middle District of Florida; Hon. Darrin P. Gayles, Nominee to be District Judge for the Southern District of Florida; and Hon. Carlos Eduardo Mendoza, Nominee to be District Judge for the Middle District of Florida.............. 418 Rubio, Hon. Marco, a U.S. Senator from the State of Florida presenting Hon. Beth Bloom, Nominee to be District Judge for the Southern District of Florida; Paul G. Byron, Nominee to be District Judge for the Middle District of Florida; Hon. Darrin P. Gayles, Nominee to be District Judge for the Southern District of Florida; and Hon. Carlos Eduardo Mendoza, Nominee to be District Judge for the Middle District of Florida........ 419 STATEMENTS OF THE NOMINEES Witness List..................................................... 433 Bloom, Hon. Beth, Nominee to be U.S. District Judge for the Southern District of Florida................................... 422 biographical information..................................... 434 Byron, Paul G., Nominee to be U.S. District Judge for the Middle District of Florida............................................ 422 biographical information..................................... 505 questionnaire update letter, March 25, 2014.................. 559 Gayles, Hon. Darrin P., Nominee to be U.S. District Judge for the Southern District of Florida............................................ 423 biographical information..................................... 575 Mendoza, Hon. Carlos Eduardo, Nominee to be U.S. District Judge for the Middle District of Florida............................. 423 biographical information..................................... 631 QUESTIONS Questions submitted to all Nominees by Senator Cruz.............. 694 Questions submitted to Hon. Beth Bloom by Senator Grassley....... 680 Questions submitted to Paul G. Byron by Senator Grassley......... 684 Questions submitted to Hon. Darrin P. Gayles by Senator Grassley. 688 Questions submitted to Hon. Carlos Eduardo Mendoza by Senator Grassley....................................................... 690 ANSWERS Responses of Hon. Beth Bloom to questions submitted by: Senator Cruz................................................. 703 Senator Grassley............................................. 695 Responses of Paul G. Byron to questions submitted by: Senator Cruz................................................. 715 Senator Grassley............................................. 706 Responses of Hon. Darrin P. Gayles to questions submitted by: Senator Cruz................................................. 722 Senator Grassley............................................. 718 Responses of Hon. Carlos Eduardo Mendoza to questions submitted by: Senator Cruz................................................. 730 Senator Grassley............................................. 724 LETTER RECEIVED WITH REGARD TO HON. BETH BLOOM American Bar Association, February 6, 2014, letter............... 732 LETTER RECEIVED WITH REGARD TO PAUL G. BYRON American Bar Association, February 6, 2014, letter............... 734 LETTERS RECEIVED WITH REGARD TO HON. DARRIN P. GAYLES American Bar Association, February 6, 2014, letter............... 736 Chacon, Raul J., Jr., March 31, 2014, letter..................... 744 Keys, Carol F., Esq., March 31, 2014, letter..................... 738 Poston, Rebekah J., March 31, 2014, letter....................... 742 Rosier, Patricia, Esq., April 1, 2014, letter.................... 749 Strader, Yolanda P., March 31, 2014, letter...................... 739 Wilkie D. Ferguson, Jr. Bar Association, March 31, 2014, letter.. 746 LETTER RECEIVED WITH REGARD TO HON. CARLOS EDUARDO MENDOZA American Bar Association, February 6, 2014, letter............... 751 MISCELLANEOUS SUBMISSIONS FOR THE RECORD Nelson, Hon. Bill, a U.S. Senator from the State of Florida, prepared statement with regard to Hon. Beth Bloom, Nominee to be District Judge for the Southern District of Florida..... 753 prepared statement with regard to Paul G. Byron, Nominee to be District Judge for the Middle District of Florida....... 754 prepared statement with regard to Hon. Darrin P. Gayles, Nominee to be District Judge for the Southern District of Florida.................................................... 753 prepared statement with regard to Hon. Carlos Eduardo Mendoza, Nominee to be District Judge for the Middle District of Florida........................................ 754 C O N T E N T S ---------- MAY 13, 2014, 9:30 A.M. STATEMENTS OF COMMITTEE MEMBERS Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut.................................................... 755 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 756 Leahy, Hon. Patrick J. Leahy, a U.S. Senator from the State of Vermont, prepared statement........................................... 1280 PRESENTERS Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia presenting Hon. Julie E. Carnes, Nominee to be Circuit Judge for the Eleventh Circuit; Jill A. Pryor, Nominee to be Circuit Judge for the Eleventh Circuit; Leslie Joyce Abrams, Nominee to be District Judge for the Middle District of Georgia; Hon. Michael P. Boggs, Nominee to be District Judge for the Northern District of Georgia; Mark Howard Cohen, Nominee to be District Judge for the Northern District of Georgia; Leigh Martin May, Nominee to be District Judge for the Northern District of Georgia; and Hon. Eleanor Louise Ross, Nominee to be District Judge for the Northern District of Georgia..................... 757 Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia presenting Hon. Julie E. Carnes, Nominee to be Circuit Judge for the Eleventh Circuit; Jill A. Pryor, Nominee to be Circuit Judge for the Eleventh Circuit; Leslie Joyce Abrams, Nominee to be District Judge for the Middle District of Georgia; Hon. Michael P. Boggs, Nominee to be District Judge for the Northern District of Georgia; Mark Howard Cohen, Nominee to be District Judge for the Northern District of Georgia; Leigh Martin May, Nominee to be District Judge for the Northern District of Georgia; and Hon. Eleanor Louise Ross, Nominee to be District Judge for the Northern District of Georgia..................... 759 STATEMENTS OF THE NOMINEES Witness List..................................................... 807 Abrams, Leslie Joyce, Nominee to be U.S. District Judge for the Middle District of Georgia..................................... 768 biographical information..................................... 1010 Boggs, Hon. Michael P., Nominee to be U.S. District Judge for the Northern District of Georgia................................... 768 biographical information..................................... 1044 questionnaire update letter, April l0, 2014.................. 1107 Carnes, Hon. Julie E., Nominee to be U.S. Circuit Judge for the Eleventh Circuit............................................... 760 biographical information..................................... 808 Cohen, Mark Howard, Nominee to be U.S. District Judge for the Northern District of Georgia................................... 769 biographical information..................................... 1133 May, Leigh Martin, Nominee to be U.S. District Judge for the Northern District of Georgia................................... 770 biographical information..................................... 1181 Pryor, Jill A., Nominee to be U.S. Circuit Judge for the Eleventh Circuit........................................................ 762 biographical information..................................... 908 questionnaire update letter, January 3, 2013................. 964 questionnaire update letter, January 10, 2014................ 989 Ross, Hon. Eleanor Louise, Nominee to be U.S. District Judge for the Northern District of Georgia............................... 771 biographical information..................................... 1234 QUESTIONS Questions submitted to all Nominees by Senator Cruz.............. 1312 Questions submitted to Leslie Joyce Abrams by Senator Grassley... 1292 Questions submitted to Hon. Michael P. Boggs by: Senator Blumenthal........................................... 1335 Follow-up questions submitted by Senator Blumenthal.......... 1339 Senator Coons................................................ 1333 Senator Feinstein............................................ 1321 Senator Franken.............................................. 1331 Senator Grassley............................................. 1296 Senator Leahy................................................ 1313 Follow-up questions submitted by Senator Leahy............... 1319 Questions submitted to Hon. Julie E. Carnes by Senator Grassley.. 1281 Questions submitted to Mark Howard Cohen by: Senator Grassley............................................. 1301 Senator Leahy................................................ 1316 Questions submitted to Leigh Martin May by Senator Grassley...... 1305 Questions submitted to Jill A. Pryor by Senator Grassley......... 1286 Questions submitted to Hon. Eleanor Louise Ross by Senator Grassley....................................................... 1308 ANSWERS Responses of Leslie Joyce Abrams to questions submitted by: Senator Cruz................................................. 1381 Senator Grassley............................................. 1374 attachment................................................... 1384 Responses of Hon. Michael P. Boggs to questions submitted by: Senator Blumenthal........................................... 1585 Follow-up questions submitted by Senator Blumenthal.......... 1596 Senator Coons................................................ 1580 Senator Cruz................................................. 1542 Senator Feinstein............................................ 1553 Senator Franken.............................................. 1577 Senator Grassley............................................. 1529 Senator Leahy................................................ 1545 Follow-up questions submitted by Senator Leahy............... 1593 attachment one............................................... 1605 attachment two............................................... 1622 attachment three............................................. 1638 attachment four.............................................. 1652 attachment five.............................................. 1662 attachment six............................................... 1667 Responses of Hon. Julie E. Carnes to questions submitted by: Senator Cruz................................................. 1353 Senator Grassley............................................. 1342 Responses of Mark Howard Cohen to questions submitted by: Senator Cruz................................................. 1678 Senator Grassley............................................. 1671 Senator Leahy................................................ 1681 Responses of Leigh Martin May to questions submitted by: Senator Cruz................................................. 1693 Senator Grassley............................................. 1687 Responses of Jill A. Pryor to questions submitted by: Senator Cruz................................................. 1371 Senator Grassley............................................. 1356 Responses of Hon. Eleanor Louise Ross to questions submitted by: Senator Cruz................................................. 1701 Senator Grassley............................................. 1695 LETTER RECEIVED WITH REGARD TO LESLIE JOYCE ABRAMS American Bar Association, March 12, 2014, letter................. 1706 LETTERS RECEIVED WITH REGARD TO HON. MICHAEL P. BOGGS Advocacy For Action, Inc., January 10, 2014, letter.............. 1713 American Bar Association, December 20, 2013, letter.............. 1708 Draper, Lucy Hargrett, January 9, 2014, letter................... 1712 Fort, Hon. Vincent D., Georgia State Senate, January 15, 2014, letter......................................................... 1715 Human Rights Campaign (HRC), May 14, 2014, letter................ 1723 Johnson, Hon. Henry C. ``Hank,'' Jr., a Representative in Congress from the State of Georgia, May 20, 2014, letter....... 1718 Lambda Legal, May 9, 2014, letter................................ 1725 Leadership Conference on Civil and Human Rights, The, May 12, 2014, letter................................................... 1734 Murry, Dorian, May 8, 2014, letter............................... 1717 NARAL Pro-Choice America et al., February 20, 2014, letter....... 1720 National Council of Jewish Women (NCJW), May 12, 2014, letter.... 1728 People For the American Way, May 14, 2014, letter................ 1729 Scott, David, a Representative in Congress from the State of Georgia, January 3, 2014, letter........................................ 1710 LETTER RECEIVED WITH REGARD TO HON. JULIE E. CARNES American Bar Association, December 20, 2013, letter.............. 1703 LETTERS RECEIVED WITH REGARD TO MARK HOWARD COHEN American Bar Association, December 20, 2013, letter.............. 1736 Levitas, Elliott H., March 20, 2014, letter...................... 1738 LETTER RECEIVED WITH REGARD TO LEIGH MARTIN MAY American Bar Association, December 20, 2013, letter.............. 1740 LETTER RECEIVED WITH REGARD TO JILL A. PRYOR American Bar Association, February 16, 2012, letter.............. 1705 LETTER RECEIVED WITH REGARD TO HON. ELEANOR LOUISE ROSS American Bar Association, December 20, 2013, letter.............. 1742 C O N T E N T S ---------- MAY 20, 2014, 10 A.M. STATEMENTS OF COMMITTEE MEMBERS Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1745 Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Andre Birotte, Jr., Nominee to be District Judge for the Central District of California................................. 1750 PRESENTERS Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana presenting John W. deGravelles, Nominee to be District Judge for the Middle District of Louisiana........................... 1746 McCaskill, Hon. Claire, a U.S. Senator from the State of Missouri presenting Hon. Ronnie L. White, Nominee to be District Judge for the Eastern District of Missouri........................................... 1747 Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting Hon. Robin L. Rosenberg, Nominee to be District Judge for the Southern District of Florida............................................ 1748 Norton, Hon. Eleanor Holmes, a Delegate in Congress from the District of Columbia presenting Randolph D. Moss, Nominee to be District Judge for the District of Columbia.................... 1749 STATEMENTS OF THE NOMINEES Witness List..................................................... 1769 Birotte, Andre, Jr., Nominee to be U.S. District Judge for the Central District of California................................. 1752 biographical information..................................... 1770 deGravelles, John W., Nominee to be U.S. District Judge for the Middle District of Louisiana................................... 1754 biographical information..................................... 1854 Moss, Randolph D., Nominee to be U.S. District Judge for the District of Columbia........................................... 1754 biographical information..................................... 1948 questionnaire update letter, May 15, 2014.................... 2024 Rosenberg, Hon. Robin L., Nominee to be U.S. District Judge for the Southern District of Florida............................... 1755 biographical information..................................... 2161 White, Hon. Ronnie L., Nominee to be U.S. District Judge for the Eastern District of Missouri................................... 1757 biographical information..................................... 2226 QUESTIONS Questions submitted to all Nominees by Senator Cruz.............. 2312 Questions submitted to Andre Birotte, Jr., by Senator Grassley... 2289 Questions submitted to John W. deGravelles by Senator Grassley... 2294 Questions submitted to Randolph D. Moss by Senator Grassley...... 2299 Questions submitted to Hon. Robin L. Rosenberg by Senator Grassley....................................................... 2304 Questions submitted to Hon. Ronnie L. White by Senator Grassley.. 2308 ANSWERS Responses of Andre Birotte, Jr., to questions submitted by: Senator Cruz................................................. 2323 Senator Grassley............................................. 2313 Responses of John W. deGravelles to questions submitted by: Senator Cruz................................................. 2335 Senator Grassley............................................. 2326 Responses of Randolph D. Moss to questions submitted by: Senator Cruz................................................. 2348 Senator Grassley............................................. 2337 Responses of Hon. Robin L. Rosenberg to questions submitted by: Senator Cruz................................................. 2358 Senator Grassley............................................. 2351 Responses of Hon. Ronnie L. White to questions submitted by: Senator Cruz................................................. 2369 Senator Grassley............................................. 2360 LETTER RECEIVED WITH REGARD TO ANDRE BIROTTE, JR. American Bar Association, April 4, 2014, letter.................. 2371 LETTER RECEIVED WITH REGARD TO JOHN W. DEGRAVELLES American Bar Association, March 14, 2014, letter................. 2373 LETTER RECEIVED WITH REGARD TO RANDOLPH D. MOSS American Bar Association, April 4, 2014, letter.................. 2375 LETTER RECEIVED WITH REGARD TO HON. ROBIN L. ROSENBERG American Bar Association, February 26, 2014, letter.............. 2377 LETTERS RECEIVED WITH REGARD TO HON. RONNIE L. WHITE American Bar Association, November 8, 2013, letter............... 2379 Aron, Nan, May 19, 2014, letter.................................. 2386 Fraternal Order of Police-Missouri State Lodge, May 13, 2014, letter......................................................... 2381 Leadership Conference on Civil and Human Rights, The, May 19, 2014, letter................................................... 2382 People For the American Way, May 19, 2014, letter................ 2384 ALPHABETICAL LIST OF NOMINEES Abrams, Leslie Joyce, Nominee to be U.S. District Judge for the Middle District of Georgia..................................... 768 Birotte, Andre, Jr., Nominee to be U.S. District Judge for the Central District of California................................. 1752 Bloom, Hon. Beth, Nominee to be U.S. District Judge for the Southern District of Florida................................... 422 Boggs, Hon. Michael P., Nominee to be U.S. District Judge for the Northern District of Georgia................................... 768 Boulware, Richard Franklin, II, Nominee to be U.S. District Judge for the District of Nevada..................................... 7 Byron, Paul G., Nominee to be U.S. District Judge for the Middle District of Florida............................................ 422 Carnes, Hon. Julie E., Nominee to be U.S. Circuit Judge for the Eleventh Circuit............................................... 760 Cohen, Mark Howard, Nominee to be U.S. District Judge for the Northern District of Georgia................................... 769 deGravelles, John W., Nominee to be U.S. District Judge for the Middle District of Louisiana................................... 1754 Gayles, Hon. Darrin P., Nominee to be U.S. District Judge for the Southern District of Florida............................................ 423 Krause, Cheryl Ann, Nominee to be U.S. Circuit Judge for the Third Circuit.................................................. 7 May, Leigh Martin, Nominee to be U.S. District Judge for the Northern District of Georgia................................... 770 Mendoza, Hon. Carlos Eduardo, Nominee to be U.S. District Judge for the Middle District of Florida............................. 423 Mendoza, Hon. Salvador, Jr., Nominee to be U.S. District Judge for the Eastern District of Washington......................... 8 Moss, Randolph D., Nominee to be U.S. District Judge for the District of Columbia........................................... 1754 Pryor, Jill A., Nominee to be U.S. Circuit Judge for the Eleventh Circuit........................................................ 762 Rodriguez, Leon, Nominee to be Director of the U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. 10 Rosenberg, Hon. Robin L., Nominee to be U.S. District Judge for the Southern District of Florida............................... 1755 Ross, Hon. Eleanor Louise, Nominee to be U.S. District Judge for the Northern District of Georgia............................... 771 White, Hon. Ronnie L., Nominee to be U.S. District Judge for the Eastern District of Missouri................................... 1757 Yandle, Staci Michelle, Nominee to be U.S. District Judge for the Southern District of Illinois.................................. 10 NOMINATIONS OF CHERYL ANN KRAUSE, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT; RICHARD FRANKLIN BOULWARE II, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA; HON. SALVADOR MENDOZA, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON; STACI MICHELLE YANDLE, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS; AND LEON RODRIGUEZ, NOMINEE TO BE DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY ---------- WEDNESDAY, MARCH 12, 2014 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 9:30 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Amy Klobuchar, presiding. Present: Senators Klobuchar, Durbin, and Grassley. Senator Durbin [presiding]. I am pleased to call this nominations hearing of the Senate Judiciary Committee to order. I know that we have votes scheduled around 10:30, so we will do our best to accommodate everyone's schedule. I am stepping in here for Senator Klobuchar who will be arriving momentarily. I want to give a warm welcome to all the nominees. We also welcome family and friends who accompany them, and you will have an opportunity to introduce them shortly. We have five nominees under consideration today. First I want to call upon Senators Murray and Casey to introduce the nominees from their home States. Senator Patty Murray. PRESENTATION OF HON. SALVADOR MENDOZA, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON, BY HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF WASHINGTON Senator Murray. Well, Mr. Chairman, thank you very much. It is my privilege today to introduce to this Committee Judge Salvador Mendoza, Jr., who has been nominated by the President to be the next United States District Judge for the Eastern District of Washington. I want to welcome Judge Mendoza. His wife, Mia, is with him today; his mother, Maria; and his long- time legal assistant, Monica; who have traveled out here from what we call ``the other Washington.'' And I especially want to welcome to this Committee his mother, who is visiting our Nation's capital for the very first time to witness her son testify before this Committee as a nominee of the President of the United States. Maria, I know how proud you must be. And we are honored that she is with us today as well. Mr. Chairman, it is not every day that I get to introduce a nominee who also happens to be a former intern in my office. And it is also not every day that a man who is the son of a migrant farm worker and who himself worked on the farms in Yakima Valley is called on by the President to become the first Latino Federal judge in the Eastern District of Washington. So as a Senator from Washington State, I am incredibly proud to introduce him to this Committee today, because through his life's story, Judge Mendoza represents the very best of our State's honest, hardworking spirit. Madam Chairman, through his work ethic, his commitment to his community, and his belief in equal opportunity, Judge Mendoza is a leader and a role model for families throughout our State and particularly young men and women born into poverty and difficult circumstances. In fact, in his application to serve as Federal judge, he discussed his own upbringing, and I want to quote it to you. He said: ``I worked and studied hard to better myself and my family. I understood then what I believe now: that both the quality of the educational system coupled with a strong system of justice will lift up the entire community.'' Madam Chairman, I could not agree more, and it comes as no surprise that throughout his professional life, Judge Mendoza has stayed true to those words. From serving as a trustee for Columbia Basin College to helping coordinate the annual Tri- Cities Youth and Justice Conference, to helping to create the first drug court for Benton and Franklin counties, Judge Mendoza has given his time and experience investing in institutions that each and every day lift up communities throughout our State. He is currently a superior court judge, but his judicial career spans private practice, service as an Assistant Attorney General, and years of experience in superior, district, municipal, and juvenile court. He is an experienced practitioner in Federal court and served from 2010 to 2013 as lawyer representative to the Ninth Circuit Judicial Conference. And through his many years of legal practice and judicial experience, Judge Mendoza will come to the Federal bench well prepared. He has described his judicial philosophy as guided by the principles of patience, respect, and humility--the same principles that have guided his life and legal career and principles that will serve him well as a member of the Federal judiciary. So I want to thank Judge Mendoza for his willingness to serve Washington State as a Federal judge. I have said time and again that as a country we are best when good people are willing to give of themselves in service to others. It is service to others that has defined Judge Mendoza throughout his career and will continue to define him as he assumes the duty of this new office. I am very proud to be here today to support his nomination. Thank you, Madam Chair. Senator Klobuchar [presiding]. Thank you very much, Senator Murray. Senator Casey, you are here to introduce Cheryl Ann Krause. PRESENTATION OF CHERYL ANN KRAUSE, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT BY HON. ROBERT P. CASEY, JR., A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Casey. Madam Chair, thank you very much. I am honored to be here along with Senator Toomey to speak in favor of the nomination of Cheryl Ann Krause to be a member of the United States Court of Appeals for the Third Circuit, one of our great circuits in the United States. I would say first that Cheryl's life has been a commitment to excellence, a commitment to public service, and I think it is a great American story of hard work and achievement. The academic credentials that she brings to this job are substantial. She attended Stanford University Law School. She clerked for--and the University of Pennsylvania, graduating summa cum laude, undergrad. I wanted to make sure I got that Pennsylvania, University of Pennsylvania academic credential in there. It is significant. After law school, Cheryl served Justice Anthony Kennedy on the Supreme Court of the United States, later served as a prosecutor in the United States Attorney's Office for the Southern District of New York for 5 years, where, among other things, she was fighting public corruption cases and dealing with all kinds of prosecutions involving international bank fraud, securities fraud, all the range of prosecutorial achievements that she was able to amass in those years. I think also when you look at her work as a lawyer in the private sector, as a Federal prosecutor, it is a life and a degree of excellence that you often do not see. But I think it is infused by a deep and abiding commitment to public service. And when any of us make a determination about the person we should vote for on a district court or appellate court, we, of course, consider a range of credentials and questions. One, of course, is experience. I think when it comes to experience in the private sector or as a Federal prosecutor, as well as a whole other range of experiences, very few people would be able to outdistance what Cheryl brings to this nomination. Second, we ask that the nominees have the kind of commitment to public service and the integrity to serve as a judge on either the district or appellate court. And, third, I think--and these are broad categories, but we hope as well that they can be a judge that will not just judge fairly but will bring a judicial temperament to their work as a judge. I think on that measure as well Cheryl stands out. So I think whether it is a combination of academic credentials, her broad experience in the public and private sector, and especially her experience as a prosecutor, but I think overall a commitment to public service is the reason that I and so many others have decided to support her nomination with enthusiasm and with a degree of intensity that is, I think, pretty rare in this town. And I am grateful to have worked with Senator Toomey bringing this nomination forward, along with the White House and the Obama administration, and so we are grateful. And I will say finally that Cheryl's family is here. I know they will be introduced later. We are especially grateful they are here, led by Colonel Bradford R. Everman, her husband, who has made a deep commitment to the security of the United States, and we are grateful for his service as well. Senator Klobuchar. Thank you very much, Senator Casey. Senator Toomey. PRESENTATION OF CHERYL ANN KRAUSE, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT BY HON. PATRICK J. TOOMEY, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Toomey. Thank you, and good morning, Chairman Klobuchar, Senator Grassley, Senator Durbin. Thanks very much for giving me this opportunity to help to introduce Cheryl Ann Krause. I would like to point out that she was nominated by President Obama on February 6th, and so I appreciate the timely scheduling of this hearing and the progress we are making. I also want to take a moment to thank Senator Casey for the collaborative efforts that he and I have engaged in. We have had eight successful confirmations since I have taken office. We still have two very well qualified district court nominees, Ed Smith and Gerald McHugh, who are awaiting Senate confirmation, which I hope will occur soon. And we have eight more district court vacancies that we are working on, but I would just point out that this is a case of some terrific bipartisan cooperation that is, in fact, making real progress for Pennsylvania, and I appreciate Senator Casey's work in this area. As Senator Casey has already described, Cheryl Ann Krause has a very, very impressive personal and professional background. She clearly has a wealth of legal experience in public service and private practice. Her commitment to the community has been very impressive. Her work for children with disabilities, a Penn Law School project that supervises law students representing indigent defendants. As Senator Casey pointed out, she comes from a family that is committed to public service, her husband having spent years as a fighter pilot for the U.S. military. When I met with Ms. Krause, I found her to be a very, very impressive candidate, clearly very, very intelligent, very knowledgeable about the law, a very thoughtful and careful person. I can tell you from the many folks with whom I have discussed her candidacy, she has an outstanding reputation in the legal community and beyond for excellence, for competence, and most importantly to me, for an impeccable character. So I am confident that she will make a strong addition to the Third Circuit court, and I thank this Committee for its time and hope that they favorably report out this nominee. Thank you. Senator Klobuchar. Thank you very much to both of you. I know you want to stay for our entire hearing, but I am sure you have other business. Thank you for coming. Next, Senator Durbin, thank you for starting this hearing out. I had another commitment. He is here to introduce Staci Michelle Yandle, to be United States District Judge for the Southern District of Illinois. PRESENTATION OF STACI MICHELLE YANDLE, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS, BY HON. DICK DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS Senator Durbin. Thank you, Madam Chair. I am pleased to introduce Staci Yandle, nominated to serve as district court judge in the Southern District of my State. She has been nominated to fill the vacancy in the Benton courthouse when Judge Phil Gilbert assumes senior status on March 15th. Staci Yandle was born in Centreville, which, coincidentally, is the home town of my wife. That had nothing to do with her selection. [Laughter.] Senator Durbin. But it did not hurt. She currently lives in Carlyle. She received her undergraduate degree from the University of Illinois and her law degree from the Vanderbilt University School of Law. Over the course of her legal career, Ms. Yandle has gained extensive litigation experience. Currently she has her own solo practice in O'Fallon, Illinois, which she has operated since 2007, before that working for two prominent law firms in southern Illinois--Carr Korein Tillery and The Rex Carr Law Firm. Ms. Yandle has handled a wide variety of litigation matters, including employment, education, medical injury, civil rights, nursing home abuse. Most of her cases, she has either been sole counsel or lead counsel. She served as an arbitrator in the 20th Judicial Circuit Court in Illinois on approximately ten occasions. She was appointed to serve on the Illinois Advisory Committee to the U.S. Commission on Civil Rights from 1992 to 1996, and also appointed to serve by the Governor on the Illinois Gaming Board from 1999 to 2001; currently served on the board of the Illinois Bar Foundation; and she has also worked as an adjunct law professor at the St. Louis University School of Law; has a distinguished record of pro bono service in our area; spent over 50 hours per year representing indigent clients and nonprofit corporations, including the nonprofit Delta Economic Development Corporation, which operates a child- care center in my home county of St. Clair. Ms. Yandle's nomination is also historic in several respects. Never before in Illinois history has there been an Article III Federal judge who is openly a member of the LGBT community. Upon confirmation, Staci Yandle will be the first. Upon confirmation, she will also be the first African American Federal judge ever to serve in the Southern District of Illinois. And up to this point, no woman has ever served as a Federal judge in the Southern District. I believe that Ms. Yandle will be preceded by Nancy Rosenstengel, whose nomination is currently pending on the Senate floor, and she was the first woman ever nominated to serve on that court. In short, Staci Yandle's confirmation marks another important milestone in the journey toward equality of opportunity for all Americans. Ms. Yandle was recommended to me by a bipartisan screening committee that I established. I am pleased that she has been nominated here before the Committee today, and I am going to work with my colleagues to move her name through the confirmation process. One thing I want to note for the record which is very important only in southern Illinois, but extremely important in that place: Some are wondering what is going to happen to the Benton courthouse. I want to make it very clear that even after Judge Gilbert becomes a senior judge, I am committed to continuing the active status of a Federal judgeship in Benton, which Ms. Yandle will serve in that capacity if approved by the U.S. Senate. Finally, I will mention that Ms. Yandle is joined here today by her mother, Sylvia Yandle; her brother, Brian Yandle, and his wife, Sheila; and her nephew, Darell Yandle. Welcome to all. Thank you, Madam Chair. Senator Klobuchar. Thank you very much, Senator Durbin. We have a series of five votes that start at 10:30, and so we are going to change this up a little bit and have all of the nominees come up at the same time. And before that starts, I wanted to introduce Mr. Leon Rodriguez, who has been nominated to serve as Director of U.S. Citizenship and Immigration Services in the Department of Homeland Security. He is currently the Director for the Office for Civil Rights at the U.S. Department of Health and Human Services. He previously served as the Deputy Assistant Attorney General and Chief of Staff for the Justice Department's Civil Rights Division. He was born in Brooklyn, New York. Mr. Rodriguez earned his B.A. from Brown University in 1984 and his J.D. from Boston College Law School in 1988. I also know that both Senator Reid and Senator Heller are going to come in about 15 minutes to say some good words of introduction for Mr. Boulware, who is nominated to be United States District Judge for the District of Nevada, and so we are looking forward to their coming to join our Committee. So we will have to make a little room or bring up some chairs when they join us. But before you all come up, Senator Grassley, did you have any words before we start? Senator Grassley. I will put it in the record. Senator Klobuchar. Excellent. [The prepared statement of Ranking Member Grassley appears as a submission for the record.] Senator Klobuchar. Okay. So why don't all the nominees come up, and we will swear you in. Okay. Do you want to stand? Do you affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Ms. Krause. I do. Mr. Boulware. I do. Judge Mendoza. I do. Ms. Yandle. I do. Mr. Rodriguez. I do. Senator Klobuchar. Thank you very much. Thank you for being with us today, and we will start out with Ms. Krause. If you want to take a moment to introduce anyone from your family that is here with you today, we would love to meet them. STATEMENT OF CHERYL ANN KRAUSE, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT Ms. Krause. Thank you, Senator Klobuchar and Ranking Member Grassley, and thanks to the Committee for the opportunity to be considered today. My appreciation to both Senators Casey and Toomey for their gracious words and introduction, and also to the President for the profound honor of this nomination. With me in support today are many family and friends who have traveled from Pennsylvania and elsewhere. We have here my husband, Bradford Everman, who is my constant support and inspiration to public service. With me also are my son, Johnny, and 15-month-old Estelle, who, if left to their own devices, would have more to say to this Committee than me, and so I think will be excused shortly. Senator Klobuchar. She is looking good now, though. Ms. Krause. My sister, Elizabeth Krause, and her children, Zoe and Eli; my brother and sister-in-law, Aaron and Stephanie Krause, and their children, Sophie and Bryce; and many other family and friends who have come here. I would also like to note that coming from my firm Dechert are a number of partners and associates who are here supporting me and who are watching from afar, and I thank them all for their support. [The biographical information of Ms. Krause appears as a submission for the record.] Senator Klobuchar. Well, thank you very much. I appreciate it. Mr. Boulware. STATEMENT OF RICHARD FRANKLIN BOULWARE II, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA Mr. Boulware. Thank you, Senator Klobuchar. Thank you to this Committee. Thank you to the Ranking Member as well for being here. I also want to thank my home State Senators, Senator Reid and Senator Heller. I want to thank Senator Reid for recommending me for this nomination, and I want to thank Senator Heller for his support. With me today I have family and friends. I have my family here: my brother and his wife, Yvette, and their daughter, Elizabeth. I have my father, Frederick Boulware, and his wife, Pamela Callahan; and, of course, I have my family, three very vibrant and young children: my youngest, Zafeen, who is back there, who I am sure you will hear talking; my son, Kahlil--she is 4 going on 35. [Laughter.] Mr. Boulware. My son, Kahlil, who is 5 years old, my oldest daughter, Oniana; and, of course, the love of my life and my partner, Nancy. The one person who is not here today is my mother, so I want to thank her, too. [The biographical information of Mr. Boulware appears as a submission for the record.] Senator Klobuchar. That is very nice. Very nice. And I do see that Senator Heller has arrived. He wants to say a few good words about you, and maybe he wants to settle in here, and we will have Mr. Mendoza, Judge Mendoza say a few words, and then we will go to Senator Heller, and he can say a few good words about Mr. Boulware. Judge Mendoza, good to see you. STATEMENT OF HON. SALVADOR MENDOZA, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON Judge Mendoza. Thank you. Good morning, and I would really like to thank the Committee for scheduling this hearing so promptly after the nomination. I want to thank, of course, Senator Murray for those kinds words that she had this morning, and also Senator Cantwell for her continued support. Along with them, of course, I would like to thank Governor Inslee for his support as well. I would like to thank President Obama for this incredible nomination, this incredible opportunity. I am certainly honored. Here with me today is my wife, who is an excellent lawyer, an excellent wife, and an incredible mother. Senator Klobuchar. Which one is your wife? I see three women with smiles. [Laughter.] Judge Mendoza. The people that are not here are my three children: Carmen, who is 4; my son, Danny, who is 6, and Anthony, who today turns 9 years old, so Happy Birthday, Anthony, if you are watching. And an important person in my life who is here with me is my mother. My father and she--my father passed away in 2008, but both of those two individuals taught me an in credible amount of what it means to be a good human being, and I appreciate that. Also with me today is my long-time legal assistant, Monica Villanueva, who is not only my legal assistant but a very good friend of mine. Also, I have my three brothers who are not here, were not able to make the trip: Hector, who is taking care of my three kids and Josey; and my brothers, Robert--Bobby--and Raul. The person who is also not here is my sister, who passed away a year and a half ago, but I know that she is with me at this moment, and when I lost her, I lost my best friend, and I just would like her name to be in the record. My friends who are home watching, I appreciate them, especially Norma Rodriguez, Mario Anteriano, and Scott Johnson. I would also like to thank my colleagues on the superior court bench who have been amazing supporters and mentors. Also, my friends at the Supreme Court, State of Washington, Justice Gonzalez, Justice McCloud, and Justice Johnson, who have been very strong supporters. Additionally, and finally, I would like to thank the Federal bench of the Eastern District of Washington, especially Chief Judge Peterson, Judge Suko, and Judge Shea. Thank you. [The biographical information of Judge Mendoza appears as a submission for the record.] Senator Klobuchar. Well, thank you very much. Senator Heller, you are here to say a few good words about Mr. Boulware. PRESENTATION OF RICHARD FRANKLIN BOULWARE II, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA, BY HON. DEAN HELLER, A U.S. SENATOR FROM THE STATE OF NEVADA Senator Heller. I am. Thank you, Senator Klobuchar, and also to the Ranking Member, Mr. Grassley, for holding this meeting. And I want to congratulate all the nominees who are here with us today. Congratulations, Richard. It is good to see you again. Mr. Boulware. Thank you, Senator. It is good seeing you as well. Senator Heller. Judicial nominations and subsequent confirmations for qualified individuals are one of the most important and unique responsibilities we hold as Members of the U.S. Senate. Through the role of advice and consent, I believe each nominee must be carefully considered, and I am pleased to say that I believe we are continuing to accomplish this goal in this Congress through bipartisan support. In Nevada, where our delegation is certainly not one-sided, it is critical for us to work together to find qualified candidates who will uphold America's principles of impartiality under the law. I believe Mr. Boulware embodies these characteristics and serves as an example that, with a bilateral effort, we can find middle ground in instances where it is necessary. That being said, I believe Richard Boulware will make an excellent district court judge for the State of Nevada. After sitting down with him, discussing his nomination at length, I found him to be an extremely impressive nominee. A graduate of Harvard University, Mr. Boulware went on to earn his law degree from Columbia University in 2003. He currently serves as Assistant Public Defender, Federal Public Defender for the District of Nevada in Las Vegas. He also has extensive experience arguing before the Ninth Circuit Court of Appeals. This trial experience, coupled with his impressive academic accomplishments while clerking for the U.S. district court, I believe will serve him well on the bench. Outside of his professional duties, he is currently serving his local school system as a member of the Superintendent's Educational Opportunities Advisory Committee. Again, congratulations, and thank you again for the opportunity, Madam Chairwoman, for introduced this Nevadan, outstanding Nevadan, to this Committee, and I look forward to his testimony as well as the Committee's consideration for Mr. Boulware's nomination. Thank you. Senator Klobuchar. Thank you very much, Senator. Ms. Yandle. STATEMENT OF STACI MICHELLE YANDLE, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS Ms. Yandle. Thank you, Senator Klobuchar. I would like to thank you, Madam Chair, Ranking Member Grassley, and Members of this Committee for scheduling this hearing and allowing us the opportunity to speak with you today. I would like to thank Senator Durbin for his introduction and for his support. I certainly would like to thank President Obama for his nomination and for this honor. I would also like to thank various members of my community, my friends, family, who are not in the room with us today, but I certainly want to thank them for their continued support. I would like to thank and introduce the members of my family who are in the room with me today: first and foremost, my mother, Sylvia Yandle, who traveled here with me from southern Illinois. I would like to thank my brother and my sister-in-law--I actually normally refer to her as my sister, but we are on the record and I will be technically correct. She is my sister-in-law, Sheila Yandle. They traveled here from North Carolina; and my nephew, Darell, who traveled here from Detroit. I would also like to acknowledge and thank someone else who is not in the room. That is my father, Robert Yandle, who is deceased, and, frankly, has been deceased for quite some time, but who is ever present with me, and he is certainly--I feel his presence today, and I would like to acknowledge that as well. Thank you. [The biographical information of Ms. Yandle appears as a submission for the record.] Senator Klobuchar. Thank you very much, Ms. Yandle. Mr. Rodriguez. STATEMENT OF LEON RODRIGUEZ, NOMINEE TO BE DIRECTOR OF THE U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U. S. DEPARTMENT OF HOMELAND SECURITY Mr. Rodriguez. Thank you, Chairwoman, and what a great honor it is to be here this morning. I want to start by acknowledging my spectacular wife, Dr. Jill Schwartz. She is a research physician dedicated to the eradication of some of the most devastating diseases that we face in our society. I would also like to acknowledge my children: Talia and Elias Rodriguez, who are in the center aisle here today. Also with me today is former CIS Director, actually the founding Director of Citizenship and Immigration Services, Eduardo Aguirre, who was appointed by President Bush to stand up the new agency, along with his Deputy Director, Michael Petrucelli. Also here are our good friends Bicky Borman and Gerald Kell, and my current chief of staff, Juliet Choi. I would like to acknowledge the members of my staff from the Office for Civil Rights, some of whom I know are watching us this morning. And, finally, I would like to acknowledge my parents, who are watching us from Rody, Incorporated, in Miami, the small business they started in 1966. That business is still alive and well today, and Isaac and Sara Rodriguez are watching us as they do their work. And, finally, I would like to salute the great American stories of the other nominees here today. Their stories illustrate the long road that we all travel to days like this one, and it is stories like theirs that really inspire me to do hopefully, in the event of my confirmation, a job like Director of Citizenship and Immigration Services, which is such a great path to offer opportunities to new Americans. So thank you, Chairwoman, for this great opportunity. [The biographical information of Mr. Rodriguez appears as a submission for the record.] Senator Klobuchar. Well, thank you so much, Mr. Rodriguez. We welcome your family. We welcome all the nominees' families. And now we have our Majority Leader, kind of the head of our family, Majority Leader Reid here to say some good words about Mr. Boulware. PRESENTATION OF RICHARD FRANKLIN BOULWARE II, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA Senator Reid. Thank you, Madam Chair. I have had the good fortune over the years to be able to appoint people to different positions. I do not know how many judges, but 10 or so in Nevada. And it is always very difficult when family members are involved in a selection because you are always afraid: Am I showing too much favoritism? Is the person really qualified? Well, in this instance, I have known his Mom and Dad for many, many years, and they should be very proud of him, as I am, because his qualifications are unparalleled. This is a good man and a good candidate to be a judge for life. I am happy to introduce to the Committee Richard Boulware. He is an intelligent, talented young lawyer, and I have no doubt he will distinguish himself as a judge. He has worked very hard. He is the first African American man to be on the Federal bench in Nevada, but not the first African American. He has some really big shoes to fill with Johnnie Rawlinson, who was on the district court, as she has now really distinguished herself on the Ninth Circuit. He has been a public defender in Nevada since 2007. Before that, he was a public defender in New York for 4 years, worked at the prestigious firm of Covington and Burling in New York. He grew up in Las Vegas, attended Harvard University as an undergraduate, and then took some time off. He checked out the private sector. He clerked for a district court judge in the Southern District of New York, and prior to entering law school, he owned a consulting business. He told me the reason he decided to go back to school, to go to law school, is he was watching impeachment proceedings on television of President Clinton, and he said, ``I need to be a part of that, part of the legal profession.'' And so that is what he did. He went back to law school, Columbia, where he distinguished himself as a great scholar, a good student. He is really well qualified in every aspect. And he is not just naked from being in the court all the time. He has entered public service in many different ways: a leadership role in the NAACP in Las Vegas; he has also served as a volunteer attorney for U.S. Vets, an organization that serves homeless veterans of the armed forces since 2009. I would hope there were not homeless vets in Nevada, but that is not true. There are lots of them. It is commendable that he would devote his time to help these people who are really in need. He is past president of the Las Vegas chapter of the National Bar Association, has extensive experience trying criminal cases in the Federal court system. I have talked to many of the Federal judges who understand what an advocate he is for the rights of the accused. He has received the Medal of Justice Award from the State Bar of Nevada. He received the Dedicated Service Award last year from the Nevada Attorney General's Criminal Justice Program. So I am very impressed with him, and I know that he will be an outstanding judge. And I feel very good and proud of him and his family, most of whom are here today. Senator Klobuchar. Thank you very much, Majority Leader Reid. Okay. Senator Reid. I was afraid Senator Grassley was going to ask me some questions. [Laughter.] Senator Klobuchar. Yes, I know. Senator Grassley--can the reflect Senator Grassley is very good at asking questions. He asks a lot of questions. But that is not the case. You can leave and do your duties, Majority Leader Reid. Okay. We are going to begin here, and the reason Senator Grassley was talking to me was just about making sure that Senator Durbin would go after me, and then he was going to allow him to go after I do. And, in fact, Senator Durbin, maybe you want to go first. That is fine. All right. I am going to start here with you, Ms. Krause, and I am a former prosecutor like you, and I wonder if you could talk a little bit about how you think that experience will impact you on the bench. And also the pro bono work that you do, if you could talk about that. Ms. Krause. Yes, thank you very much, Senator. If I may, as a preliminary matter, I realize in my excitement to be here I omitted two of perhaps the most important people in the room: my parents, Robert and Marilyn Krause. Senator Klobuchar. Good call. [Laughter.] Ms. Krause. They have made the trip here from Pennsylvania as well, and it is a great joy to me to be able to share this day with them. Senator Klobuchar. Okay. Ms. Krause. Yes, Senator, I did serve as a prosecutor for many years, and I have continued with public service through my pro bono work in private practice. As a prosecutor, I had the opportunity to do both trial and appellate work, and that has given me a great appreciation for the importance of the record, how to read a transcript, issues of credibility of witnesses and motion practice in the district court, many of the things that, if I am fortunate enough to be confirmed as an appellate judge, will give me a good foundation for reviewing and understanding the record. I think further in both that commitment to public service and the honor there of serving as a representative of the United States, I was held to highest ethical standards and, of course, a mandate on prosecutors to think not only as an advocate, which, of course, is an important part of that job, but also the mandate to do justice. And if I have the privilege of serving on the Third Circuit Court of Appeals, of course, being fair, impartial, seeing all sides, and serving the public with the highest ethical standards would be paramount. Senator Klobuchar. Thank you. Mr. Boulware, you also served as a public defender, and could you talk about that experience and how that will help you on the bench? Mr. Boulware. Thank you, Senator Klobuchar, for the question. I think one of the things that it has given me an opportunity to do the most is participate in criminal trials. I have participated in at least 15 Federal criminal trials, including jury and non-jury trials, in two different districts, in both the District of New York and the District of--the Southern District of New York and the District of Nevada. I have also been able to participate in a variety of different types of Federal cases from white-collar complex cases, which I have been the lead attorney on with respect to my office for the past 3 years, but a variety of different types of cases that come to the public defender's office. So I believe that diversity of experience, in particular the trial experience, as my nomination is for a trial court, I believe all of that, if I am fortunate enough to be confirmed, will serve me well as a district court judge. Thank you. Senator Klobuchar. Very good. You also should note you were born in Rochester, Minnesota, since I had no one to introduce-- -- Mr. Boulware. Yes, I was born---- Senator Klobuchar. The home of the great Mayo Clinic. Mr. Boulware. Yes, I was born actually at the Mayo Clinic. Senator Klobuchar. You had a good hospital. Mr. Boulware. Yes. Senator Klobuchar. Excellent. It worked out well for you. Okay. Judge Mendoza, as a judge, do you want to talk a little bit about how being a judge, your current job as judge is going to differ from this one? Judge Mendoza. Thank you, Senator, for that question. Yes, as a judge currently, one of the duties that I have is being civil presiding judge for both of our counties, in Benton and Franklin County. As a practitioner, I primarily handled criminal law, so it is important to have both the criminal law experience and the civil law experience, and that will suit me well, if I am confirmed to this position. I think it is also important to note that I was a deputy prosecutor and an Assistant Attorney General, and I think those experiences would also help me. I think it is important to bring a wealth of experience to the position. Thank you. Senator Klobuchar. Thank you very much. Ms. Yandle, I have a feeling that Senator Durbin is going to ask you a question. Would that be right? Good. So I am going to use the remaining time that I have to ask Mr. Rodriguez a few questions. Again, it is an important job that you are going to be taking here. USCIS is an agency of 18,000 employees and contractors. Can you talk about how your management experience as county attorney and other positions is going to help you out there? Mr. Rodriguez. I appreciate that question. In particular, as county attorney for Montgomery County, I was on the senior leadership team of a county with a $2 billion annual budget, a $2 billion capital budget, 10,000 employees, an organization that had much of the same complexity as Citizenship and Immigration Services does. My prosecutorial positions really prepared me for the fraud investigation aspects and the national security aspects of the CIS Director's job. Senator Klobuchar. Very good. And I have a specific concern, and maybe you heard about this, about the plans to move--and this was, of course, before you were in your job--the U.S. Citizenship and Immigration Service office in Minnesota from its current location near The Mall of America, which is a very accessible location--accessible by bus, accessible by light rail, one of the biggest shopping malls in the country actually. And it obviously was a good location, and what your office decided to do or your soon-to-be office was that they moved the location, and it would be 3 miles from a metro transit stop. Obviously a lot of people that use this service do not have cars, and they are not able to afford cabs. And it has actually become quite an issue. Our newspaper, our major newspaper has editorialized about it a number of times, and the worst part about it, Mr. Rodriguez, is I like that they told the truth, but the GSA admitted that they actually made a mistake. They thought they saw a sign for a bus, and they thought it was a real public transit bus, but it was just some private bus service that hardly goes there. And so it is a glaring error, and last year, this office had 28,000 visitors, processed more than 13,000 applications for naturalization, and they have already now gotten a contract with this new place, and it is a huge problem. Could you commit to working with me and the GSA to address these concerns about what is happening here? Because it is kind of an outrage. Mr. Rodriguez. I can assure the Senator, first, that I am aware of the situation and that I can commit to working with you to find a resolution. In my current job, the work we do is all about accessibility to Government services, and so this is really core to my professional identity to tackle these sorts of issues. Thank you, Senator. Senator Klobuchar. Okay. Well, I appreciate that. I am looking forward to working with you on it. With that, we will turn it over to Senator Durbin. Senator Durbin. Thanks a lot, Senator Klobuchar. Let me for the record ask my nominee here, Staci Yandle, a question. I am familiar with your career and what you have done, and you have spent a lot of time representing the little guy, plaintiffs trying to recover in lawsuits where the odds are against them, pro bono defendants and clients, and folks who are usually considered to be the least likely to succeed under our system of justice. And that is one of the things that attracts me to you, and you know that. When Chief Justice John Roberts had his confirmation hearing before the Committee, here is what he said: ``If the Constitution says that the little guy should win, the little guy is going to win in a court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win.'' What do you think of Chief Justice Roberts' statement? Ms. Yandle. I think his statement is absolutely correct, and I think that is the proper role of a district court judge. It would be certainly what I would value as well. Based on my years of experience, as you mentioned, Senator, trying cases on behalf of plaintiffs, it has given me actually a very keen appreciation for the importance of impartiality and judicial integrity. I have gotten that appreciation from the other side of the bench. And so it is extremely important, and I agree with what Justice Roberts said. If confirmed, and in any matter that comes before me, based on the law and the applicable precedent, should, as you put it, the little guy win based on the law, they will; and should the corporation prevail based on the law, they will. Senator Durbin. One of the questions asked of you by Senator Kirk--and we were all together yesterday when he asked this question--was about a constitutional amendment, the Tenth Amendment, the role of the Federal Government, the role of the States, and it is something that we talk about night and day around here as part of the ongoing conversation. And he asked what your approach would be, what your views would be as a district court judge on that amendment. Ms. Yandle. Yes, and that was the Tenth Amendment, which guarantees, of course, the rights to the State where there is an absence of Federal right. And what I indicated was I have not engaged in any type of constitutional analysis about the strength or weakness of the Tenth Amendment. However, the Tenth Amendment as well as any other part of the Constitution, if there were a matter to come before me if I were confirmed, I would look first for Supreme Court guidance. Lacking that, I would look for any guidance from the Seventh Circuit. And I would certainly apply the law. Senator Durbin. Thank you. Mr. Rodriguez, it was 13 years ago when I introduces a bill called the DREAM Act in this Committee, and my cosponsor was Senator Orrin Hatch. It has been a long, long journey. Four years ago, I wrote a letter to President Obama, co-signed by Senator Lugar; a year later another letter, co-signed by, I believe, a dozen of my colleagues. In each of those, I asked for the President to consider an Executive order that would spare the DREAM Act-eligible young people in America from deportation. The President issued that Executive order, and it is known as DACA, and it defers deportation of those eligible for the DREAM Act, specifically those who came to the United States under the age of 16 and who have no serious criminal record, finished high school, and at least hold out the promise to be real assets to this Nation. Well, we are now moving forward with that, and some still criticize it. In fact, there has even been a vote in the House of Representatives to repeal this DACA provision, the Executive order of the President. A half million have come forward, roughly, and signed up with the Government, registered as promised, and now are leading otherwise normal lives. I just was told that nine of them have been admitted to medical school in the city of Chicago. I was with another just a week ago who is now a teacher in the suburbs of Chicago. They have been given their chance. I would like to ask you two things. First, what is your view about this prosecutorial discretion as it relates to DACA or other deportations? And, second, will you be prepared when the 2-year period ends and these and many others who have been given DACA seek renewal to have the administrative resources there so they can do that in a timely fashion? Mr. Rodriguez. Senator, I really appreciate your calling attention to the many wonderful young people who have participated in the DACA program. They speak to the great American promise that I discussed during my opening statement. These are students, these are strivers. And as you have observed many of them are now pursuing professions; a number of them have indicated their interest in serving in our armed forces if that opportunity were to become available to them. And so I certainly will commit to doing everything that I can and having the goal, in the hopeful event of my confirmation, to making that process work and to finding the appropriate resources to making that process work. Thank you. Senator Durbin. If I could do one followup, the question was raised about the critics have said the President did not have the authority to issue this Executive order. I have felt that the issue of prosecutorial discretion has been fairly clear in the past. In fact, justice Kennedy recently said, ``A principal feature of the removal system is the broad discretion exercised by immigration officials.'' This is from Justice Kennedy in a recent case striking down one of the controversial Arizona immigration laws. Would you comment on this issue of prosecutorial discretion? Mr. Rodriguez. Well, certainly I have spent a significant portion of my career as a prosecutor, primarily in the criminal justice context, in some cases in administrative context as well. There is prosecutorial discretion in all of those contexts. It is not unlimited. It is not uncabined. But there is prosecutorial discretion that would apply in all of the contexts that the Senator is describing. Thank you. Senator Durbin. Thank you. Thanks to all the nominees. Senator Klobuchar. Thank you very much, Senator Durbin. Senator Grassley. Senator Grassley. I will start with you, Ms. Krause. First of all, congratulations to all of you. I would have said that in my statement, but I put it in the record. Senator Durbin. Is your microphone on? Senator Grassley. My microphone is on, yes. Maybe I am not--you can always hear me. You have written about conditions of supervised release that courts have imposed on convicted cyber criminals and argued that restrictions on cyber criminals' Internet use was extreme in certain cases. So then the question: Under what circumstances do you believe it is appropriate for courts to require a cyber criminal to obtain permission before possessing or using an Internet-capable device like a computer or a smartphone? Ms. Krause. Thank you, Senator. That article was one summarizing the law of many different circuits and pointing out that in some cases there had been complete bans that had been overturned; whereas, the standard--and certainly the standard articulated by the Third Circuit in United States v. Freeman-- is that there be a relationship of the least restrictive necessary to serve the penological interest. I think that those restrictions would need to be considered on a case-by-case basis, and they may range from needing to seek permission or limited restrictions up to and including a complete ban in certain cases like the Mitnick case, which I described in that article as well. Senator Grassley. Okay. Now, you are just going to love when I ask you about something you wrote when you were a third- year law student. That would be your views on Title VII, reviews in which you stated your belief that, ``Discrimination remains a widespread social problem.'' Basically you said that although overprejudice was gone, a more subtle form of discrimination still persists. Based on that you, argued that a certain affirmative difference, the after-acquired-evidence defense, should be limited in Title VII cases. Now, I already recognize that you wrote that as a law student, but I would like to know whether your views have changed since 1993. Do you still believe that discrimination remains a widespread social problem? Ms. Krause. Senator, that article from 1994 related to the use of the after-acquired-evidence defense, and I still believe that Title VII should be enforced. It is the enactment of Congress' considered policy determination that there remains the need for protection of civil rights, including in the workplace. The position that I took there that it was Congress' view that the protections as embodied in Title VII still needed to be pursued ultimately was adopted by the Supreme Court in McKennon v. Nashville Banner Publishing Company, where, I might add, they actually cited to that article. I believe as a judge, if I have the privilege of being confirmed, that issues about Title VII would need to be addressed on a case-by-case basis, considering the applicable law and Supreme Court precedent, as well as Third Circuit precedent, applied to the facts of the particular case or controversy that might come before me. Senator Grassley. Do you have happen to believe that whether or not affirmative defenses that courts have recognized in Title VII cases should be limited or unavailable in order to combat discrimination in society? Ms. Krause. I do not have a view on that as a general matter, Senator. With that particular affirmative defense, the Supreme Court concluded, consistent with the EEOC and others that had looked at the issue, that it was not appropriate for that to be used as a complete defense, although it did cutoff damages. Senator Grassley. So you would follow the Supreme Court? That is an obvious answer. Ms. Krause. Senator, I would follow the Supreme Court in that, as in all things, if I have the honor of being confirmed. Senator Grassley. One last question that I offer a lot of judges, both district as well as circuit, or even Supreme Court nominees. You have had a distinguished career as a lawyer and appellate advocate, but never served in a judicial capacity. Lawyers use many resources in formulating arguments that judges might necessarily rely on in deciding your cases. So then this is about the issue of whether or not you as a judge ever think it is proper to rely on foreign law or on views of the world community, as some judges have stated it, in determining the meaning of the Constitution or Federal statutes. Ms. Krause. Thank you, Senator. No, I view the U.S. Constitution as well as statutes of Congress, of course, as domestic law, and I would look to domestic law sources to interpret them. I am aware that in certain cases, for example, in discussing the jury system, the Supreme Court on occasion has looked to British common law and referred to foreign law in some circumstances. Obviously, I would abide by the precedent of the Supreme Court in the holdings of those cases, but my approach, if I am confirmed would be to apply to domestic sources of interpretation to U.S. law. Senator Grassley. For the district nominees, I am going to submit questions in writing, and I am now going to go to Mr. Rodriguez. So if you would answer those when we submit them, I would appreciate it. [The questions of Ranking Member Grassley appear as submissions for the record.] Senator Grassley. Mr. Rodriguez, you were a board member of CASA de Maryland, a group that advocates for Latinos and immigrants. While I have strong disagreement over some of the stances that this organization has taken over the years regarding immigration policy, I would like to discuss several events that occurred while you were on the board, and especially in light of the job that you have been nominated for. While you were a member of that board, the organization published a booklet entitled, ``Warning: Protect Yourself from Immigration Raids.'' That was March 2007. The booklet was designed to inform undocumented workers how to avoid or minimize the chance of triggered lawful deportation proceedings. It encouraged undocumented workers not to give law enforcement a name of an individual, even while acknowledging that it is a crime in some jurisdictions not to do that. Some press accounts also noted how illustrations could be perceived as disparaging law enforcement. So my question: As a board member, did you have any knowledge of this booklet before it was published in March 2007? Then I will go on to another question. Mr. Rodriguez. Senator, I was not aware of that publication. Senator Grassley. Thank you. After the booklet was reported in the press, did you take any steps, either privately or publicly, to encourage the organization to retract the pamphlet? Mr. Rodriguez. Senator, what I might point out is that actually I separated from board service in May 2007. When I became county attorney for Montgomery County, I discontinued basically all of my nonprofit involvements at that time. So I did not become aware of this publication, Senator, honestly until you referenced it today. Senator Grassley. So you were gone 2 months after it was published. Mr. Rodriguez. That is correct. Senator Grassley. Okay. Let me go on then. As a board member, that organization, CASA, entered a lawsuit filed on behalf of undocumented immigrants. That lawsuit sought to prevent Maryland's Motor Vehicle Administration from complying with the Federal law REAL ID Act. That Act was enacted following September the 11th and was one of the recommendations of the 9/11 Commission. Among other things, it required States to strengthen their identity verification procedures to ensure State forms of identification could be used for Federal purposes, such as boarding an aircraft. Do you personally oppose the REAL ID Act? Mr. Rodriguez. Senator, I do not have a specific opinion on the REAL ID Act. Certainly if those are questions that this body is considering, I would look forward to working with the Senator in the hopeful event of my confirmation to discuss that Act. Senator Grassley. Well, this might be an easier one for you to answer. Do you believe that States should fully comply with the Federal law, the Federal REAL ID Act? Mr. Rodriguez. It is certainly my view, and a core part of what I did as county attorney advising Montgomery County, that States and localities should comply with Federal law. And certainly whatever Federal law there might be, it is my view that States and localities are obligated to comply with those laws. Senator Grassley. Okay. And then I think that answer probably applies to this question, but let me ask it anyway. Do you believe a State that is attempting to comply early with an upcoming Federal mandate deadline should be prevented from compliance until the 11th hour? Mr. Rodriguez. Senator, it is difficult to specifically-- without knowing all the facts applicable to a particular situation, it is difficult to offer a legal judgment on whether the Federal Government does or does not have the authority in the context that you describe. All of these situations tend to be factbound, and so I would not venture to offer an opinion on that subject today. Senator Grassley. Okay. Now, here is one that I think you can answer. If confirmed, you will have to help enforce the immigration law. Even though the REAL ID law is not under the jurisdiction of the Customs and Immigration Service, you may play a role in its continued implementation. If confirmed, will you use your position as Director to administratively obstruct the REAL ID law? Mr. Rodriguez. Senator, you can have my assurance that in my role as CIS Director I will uphold the laws of the United States. Senator Grassley. Thank you. I wanted to ask a question about congressional oversight. While you were chief of staff at Civil Rights, the U.S. Commission on Civil Rights conducted an investigation into the decision to decline to prosecute a case from Philadelphia concerning racial intimidation of voters on election day. On May 14, 2010, then Assistant Attorney General Thomas Perez testified before the Commission and answered questions concerning this inquiry. In regard to your working with him, did you help prepare Mr. Perez for his testimony before the Commission that day? Mr. Rodriguez. I was part of the team. I did not play a central role in preparing him for his testimony. Senator Grassley. At one point in the questioning, a Commissioner asked Mr. Perez whether any political leadership was involved in the decision not to pursue this particular case of voter intimidation. Mr. Perez responded, ``No.'' However, a FOIA lawsuit later revealed that the Department of Justice was aware of more than 50 emails between political appointees and career attorneys regarding the Government's ``decisionmaking process'' to decline to prosecute the case. A Federal judge even commented that these internal DOJ documents ``appeared to contradict Assistant Attorney General Perez's testimony before the Commission that political leadership was not involved.'' That is what the judge said in the decision to dismiss this case. At the time of Mr. Perez's testimony, then, the question to you is: Were you aware of these emails' existence? Mr. Rodriguez. I am aware generally about--is my--I am on. I am aware generally of the issue that the Senator describes. It was my understanding that the decisions were made by career staff that there certainly were communications with political leadership about the decisionmaking process that was being undertaken at that particular point in time by the career staff. That is my general understanding. I am not specifically aware of the context of the emails that the Senator describes. Senator Grassley. Also during this investigation, the Department of Justice and the Civil Rights Division refused to comply with the Commission's lawful subpoenas. Were you involved in the deliberation to refuse to honor the Commission's subpoenas? Mr. Rodriguez. I actually--I was involved in the process of gathering large numbers of documents and information to comply with the Commission's subpoena. And my recollection is we delivered thousands of pages of documents to the Commission. Senator Grassley. Here is a question that is very important to me because I concentrate on oversight as a Member of Congress. Do you believe that it is acceptable for an agency or agent of the Federal Government to refuse to comply with a lawfully issued subpoena? Mr. Rodriguez. No, I do not believe that it is within the authority of a Federal agency to refuse to comply with a lawfully issued subpoena. I do note that there are occasions where there are certain constitutional and statutory privileges that may shield certain information or documents from production, and I would assume that when those privileges are asserted, they are asserted in good faith. Senator Grassley. Let me ask you this next question, but let me preface it with something like this, that in all the years I have been in Congress, there is not a person like you or anybody else that has come before us for a political appointee that has not always said yes, will you respond to our letters, will you come before us to testify, will you cooperate with oversight, all those things. And invariably they never live up to it. So what is your view of the oversight authority of Congress? Mr. Rodriguez. So I think the Senator's question is how can I assure you that I mean it when I say that. Is that correct, Senator? [Laughter.] Senator Grassley. Yes. Thank you for understanding me. [Laughter.] Mr. Rodriguez. And I think particularly for an agency like USCIS, where the role that we play touches every single State, every single congressional district, I think our partnership with this body and with the House of Representatives is really critical, one, to our discharge of our duties as an executive agency, but really our ability to effectively do our business as Citizenship and Immigration Services. I need you to fully understand what we are doing, the challenges that we face, the opportunities that we are seeking. And so I really view it as in the interest--in the hopeful event of my confirmation, in the interest of my agency to have an open relationship with your office and to provide you the information that you need to fulfill your oversight role. Senator Grassley. You know, this may sound like I think this is a problem just with this administration. Do you understand, I think this is a problem throughout Republican and Democrat administrations, and there is a culture in these administrations to thumb their nose at the Congress, not to respond any more than they have to, have to write five or six letters before you really get the answers you want. I have had people at the start of this administration before I even knew what this administration might do, give a whole file of letters unanswered from the Bush administration that I thought surely they would help us get answered so that they would not be blamed for not answering our letters, you know. My last question on another subject. You told Senator Durbin that you would put more resources into DACA. That tells me you will continue the program. Will you expand the program beyond its current form? And, second, news reports have suggested that DACA has taken resources away from other immigration programs, including family and employment visas. Are you saying DACA does not have enough resources today? Won't adding more just harm other programs further? Mr. Rodriguez. Yes, well, what I meant to say in responding to Senator Durbin's question is that we will do what we need to do to make sure across the board, throughout our functions as Citizenship and Immigration Services, that we have the resources that we need, that we are efficiently allocating the resources that we have to discharge all of our functions, and that we discharge our obligations as to all of our lines of business. I was not meaning to forecast the future of DACA or to say what I would do in the future about DACA. I cannot prejudge those situations without yet being confirmed, and I do hope that I will be confirmed. What I can say is that if I am confirmed, I view it as part of my stewardship of the agency to make sure that the agency is proper resourced to do everything that it does and that no one line of business suffers over any other line of business. Senator Grassley. Okay. You have answered my questions well. I may not agree with you. You may have too much leeway in some instances. But if you answer my letters, you are going to satisfy me more than a lot of---- [Laughter.] Mr. Rodriguez. So, Senator, you should also know that I have a particular--I am a former false claims prosecutor, and so I wanted to take an opportunity---- Senator Grassley. You are okay then. [Laughter.] Mr. Rodriguez. Well, I wanted to thank you for your leadership on the whistleblower provisions of the False Claims Act. Senator Grassley. Well, thank you. And thank you, Madam Chairman. Senator Klobuchar. Well, thank you, Senator Grassley. Has anyone else done anything with false claims? No, you do not have to answer. That is fine. I want to thank you all--and, Mr. Rodriguez, I just wanted to put something on the record, and we do not have to go into it. Maybe we can later in writing. But Congresswoman Ros- Lehtinen from the House of Representatives, a Republican, put in a good letter of support for you and your nomination, and specifically mentioned the work that Senator Grassley had asked about with CASA de Maryland and your good work there, and I wanted to put this on the record, and just wondered why you got involved in that organization and the kind of work that you saw yourself as doing in the organization. I know Senator Grassley had a serious question about a booklet and some things, but I am giving you that chance to talk a little bit about the organization. Mr. Rodriguez. I come to really my entire professional and personal life with the perspectives that came from being the son of immigrants. My parents came here fleeing from the Castro dictatorship in Cuba. My grandparents actually went to Cuba fleeing anti-Semitism and poverty in Turkey and Poland. So it is profoundly part of our identity as a family to understand what it means to be starting fresh in a new country, what those hardships are. And so I always have an affinity to any enterprise, be it a Government agency of 18,000 people or a small community nonprofit, to support people who are trying to pull themselves up by their boot straps and make a good life here in America and to help their families realize the dreams of this country. So those are really my motivations. Senator Klobuchar. Well, thank you. That was a very nice way to end this excellent hearing. I know many of you are pursuing your dreams in these jobs, and we want to thank you for your patience here with our rather interrupted proceeding here and there. And also your family members, I did not hear any babies crying. I do not know what happened to that baby, but I do not know, fell asleep, whatever. And we want to thank you for being here, and we will keep the record open for a week for further questions, and this hearing is adjourned. Thank you, and thank you, Senator Grassley. [Whereupon, at 10:39 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 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] NOMINATIONS OF HON. BETH BLOOM, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; PAUL G. BYRON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA; HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; AND HON. CARLOS EDUARDO MENDOZA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA ---------- TUESDAY, APRIL 1, 2014 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:04 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Christopher Coons, presiding. Present: Senators Coons and Grassley. OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR FROM THE STATE OF DELAWARE Senator Coons. Good morning, everyone. I am pleased to call this nominations hearing of the Senate Committee on the Judiciary to order. I would like to welcome each of our four nominees, their families and friends, to the U.S. Senate and congratulate them on their nominations. I would also like to welcome Senator Nelson, who is here to introduce the nominees, and we may well be joined by Senator Rubio. Today there are 83 vacancies in our Federal judiciary. This is an unacceptably high number. Over 5 years into this administration, the Federal bench still sits nearly 10 percent vacant, a 70-percent increase in the number of vacancies since the President took office. The result is that Americans are getting less justice and more slowly. In some districts, such as the Eastern District of North Carolina, a seat has been vacant for 3,000 days. In Texas, vacancies nearly 2,000 days old are leaving courts suffering under caseloads more than double that recommended by the Judicial Conference. And yet the Senate delegations from those States have not agreed with the President on any nominees to fill those longstanding and now critical vacancies. The judicial selection and confirmation process, broadly speaking, is quite simply failing to achieve the results contemplated for it by our Founders under the Constitution. This hearing is an important step in addressing the judicial vacancy crisis. There are five current vacancies on Florida's Federal trial courts, and today we will hear from nominees for four of those seats. I applaud Senators Nelson and Rubio for their progress and am grateful for their bipartisan cooperation and look forward to their introduction of today's four nominees. First, though, I will offer the opportunity to our distinguished Ranking Member, Senator Grassley, to say a few words. Senator Grassley. OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. First of all, congratulations to the nominees. I will take just a minute to talk about the productivity of the Committee, compare the term of President Obama with the term of President Bush. After yesterday's confirmation votes, the Senate has confirmed 64 lower-court Article III judges during President Obama's second term. By comparison, up to this point in President Bush's second term, the Senate has confirmed only 27 lower-court Article III judges. So 64 confirmed so far in the second term of this administration, 27 in the previous Presidency. With respect to the entire 5 years and 3 months of a Presidency, we have approved 233 for President Obama, 229 for President Bush. So I am glad we are being so productive and doing what we have to do, and once again, thanks to the nominees. Senator Coons. Thank you very much, Senator Grassley. I would now like to yield to the distinguished Senators from the State of Florida to introduce our nominees. I know that both of my colleagues have pressing schedules, so please feel free to depart if you must after your introductions, and again, thank you for your collaboration in making sure that we have judicial nominees to fill these important vacancies. Senator Nelson. PRESENTATION OF HON. BETH BLOOM, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; PAUL G. BYRON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA; HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; AND HON. CARLOS EDUARDO MENDOZA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Nelson. Mr. Chairman, I am going to short-circuit my remarks, if I may, have my written testimony submitted in the record. Senator Coons. Without objection. Senator Nelson. Senator Rubio and I, as both of you have indicated, have a very good working relationship, and we try through the process of a committee--ours is called the ``Judicial Nominating Commission''--to have the expertise of the legal community to do the applications screening and then interviewing and selecting three for each position that is vacant. And today we are coming forth with four nominees. Our agreement with the White House is that the President will select from among the three that the two of us send to him. The two of us interview all of the applicants, and we let the White House know if we have an objection, and then the White House will so select. And as a result, it is a process that works. Partisanship does not get in the way. And as a result, as has been proven over time, because this system has been used by Florida Senators for a better part of three decades, the proof is in the pudding of the quality that we get on the bench. And so of the four nominees today, Senator Rubio and I come to you with our endorsement, our encouragement that we speed the process. We have had emergency conditions in both the Southern District and the Middle District. And so today you will be hearing from Judge Darrin Gayles of the Southern District, Judge Beth Bloom of the Southern District, Judge Carlos Mendoza of the Middle District, and attorney Paul Byron of the Middle District. And since it is in my written testimony for the record, there are extraordinary qualifications, and as you can understand, in a highly charged political atmosphere like this, with a screening process that we have, what we present to you today are people that are definitely qualified for a lifetime appointment to serve in the Federal judiciary. Thank you, Mr. Chairman. [The prepared statements of Senator Nelson appear as submissions for the record.] Senator Coons. Thank you, Senator Nelson. Senator Rubio. PRESENTATION OF HON. BETH BLOOM, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; PAUL G. BYRON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA; HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; AND HON. CARLOS EDUARDO MENDOZA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. MARCO RUBIO, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Rubio. Thank you, Mr. Chairman, thank you to the Ranking Member for holding this hearing, and thanks to the nominees who are here with their families. I know it is an exciting day for them. As I joked as I walked in, it is not crowded up there, which is usually a pretty good sign. But we are proud of our nominees here, and I want to talk about each of them briefly, because they have an extraordinary amount of experience in different fields that I think would add a tremendous amount to their service on the Federal bench. Judge Beth Bloom is, like me, a graduate of both the University of Florida and the University of Miami School of Law. By the way, the University of Florida at this time next week should be the national champion in basketball. [Laughter.] Senator Coons. I was wondering how long it would take you to work that in this morning. Senator Rubio. Perhaps we should have waited a week for this hearing just so we could celebrate that as well. But in any event, she actually went to the same two schools that I did, but has been much more successful since because she has worked in private practice before becoming a county court judge in Miami-Dade County in 1995. She became a circuit court judge in 2010 in the Eleventh Circuit where she currently continues to serve, and, of course, she has been active in the community in South Florida in a number of areas, including areas of a particular interest to me: reducing recidivism and supporting children who are in our foster system, which has been a challenge in Florida over the last few years. And her engagement in that has been fantastic and well appreciated. Paul Byron earned his undergraduate degree with honors from the University of Michigan--which had a heart-breaking loss, you may have seen. [Laughter.] Senator Rubio. But he also went to law school at LSU, Louisiana State University, and the school has had some success in football especially. I am sorry to color everything with sports, but that is how it--we have to have our priorities right around here. He began active-duty service in the United States Army in the Judge Advocate General's Corps where he served first as a criminal defense attorney and then as a prosecutor. And after completing his duty in 1990, he became a Federal prosecutor in the Middle District where he focused on organized crime and on white-collar crime. In 2001, he served as the senior trial counsel for the International Criminal Tribunal for the Former Yugoslavia, a pretty interesting background that he brings to this, and since 2001 he has worked primarily in private practice in Orlando, with the exception of 2 years of service with the Justice Department's International Division of Asset Forfeiture and Money Laundering. Judge Darrin Gayles earned his undergraduate degree with honors from Howard University and his law degree from George Washington University right here in the District, and then he began his legal career and has really dedicated himself to public service throughout his legal career as an Assistant State Attorney in Miami-Dade County from 1993 to 1997. Then he moved to Federal practice in 1997 when he became an Assistant District Counsel at what was then Immigration and Naturalization Service. After 2 years with INS, Judge Gayles joined the U.S. Attorney's Office for the Southern District of Florida, where he served in the appellate and the major crimes and narcotics sections. And in 2004, he became a county judge and in 2010 was appointed to the circuit court for the Eleventh District, where he served in both the criminal and civil divisions. So again, an extensive history of service to the community. And, finally, Judge Carlos Mendoza is, like me, the son of immigrants, and he spent his career giving back to this country. He joined the United States Marine Corps Reserves in 1989 right out of high school--the same year I graduated, by the way, so the bench--I guess I am getting older is what is happening. He had to delay his college education for a year when his unit was mobilized, and he was deployed to the Persian Gulf during the first Gulf War. And after a distinguished military service, he returned home and attended West Virginia University, earning his undergraduate degree magna cum laude in 1993 and then his law degree in 1997. After law school, he continued his military service as a judge advocate with the United States Navy, a position that he held for 8 years. In 2005, he entered public service as a civilian, first serving as an Assistant State Attorney in the Seventh Judicial Circuit of Florida and then as a municipal attorney for the city of St. Augustine. And in 2011, Judge Mendoza was appointed to be a circuit court judge in Florida's Seventh Judicial Circuit, where he now presides over both civil and criminal cases. Last, but not least, I want to welcome Chief Judge Anne Conway of the Middle District, who I believe is in the audience today. Okay? She did not make it? All right. Well, she was supposed to be here. She does a great job, so we just wanted to recognize her for that. And I wanted to wish all of our nominees and their families the best throughout this process. I am certain this Committee will give these nominees a full and fair consideration, and I thank you for your attention today and for the opportunity to speak here alongside my colleague Senator Nelson. Senator Coons. Thank you, Senator Rubio. Thank you, Senator Nelson. We are grateful for your collaboration and what Senator Nelson describes as a 30-year-old process to produce highly qualified nominees for the Federal bench from Florida. Thank you. Senator Coons. At this point I would like to now invite our four nominees to come forward. It is the tradition of this Committee that each witness be sworn, so if you would, please, raise your right hand and repeat after me. Do you solemnly swear that the testimony you are about to give to this Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Bloom. I do. Mr. Byron. I do. Judge Gayles. I do. Judge Mendoza. I do. Senator Coons. Let the record reflect the nominees have answered in the affirmative. Please be seated. I would now like to invite each of you in turn to offer your opening statement, and I welcome you to also recognize your loved ones and supporters if you so choose. I believe I am working from left to right. Judge Bloom. STATEMENT OF HON. BETH BLOOM, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA Judge Bloom. Thank you, Senator Coons, and thank you, Senator Grassley, and the entire Judiciary Committee for convening this hearing this morning. I want to thank Senator Nelson and Senator Rubio for the kind introduction and working together to getting each of us to this point. I also want to thank the President for the honor of this nomination. With me today is my family: my husband, Lyle Stern, of 21 years, and with our three children, who are constant pride and joy: Our son Jacob Stern, who is a senior; he is 17. He is a nationally ranked debater, and he will be starting college in the fall at the University of Pennsylvania. Our son Oliver Stern, who is a seventh grade honors student. He is 13. He is a member of the Junior Thespian, a member of his school's volleyball team, and he is involved in student government. And our youngest, daughter Emily, who is 8 years old and in third grade, is a gifted piano player, singer, and dancer. Also with us today is our friend Laurie Flink, who has been a lifetime friend. Our children are not in school today, but they are certainly getting a wonderful civics lessons, and they have been gaining a civics lesson throughout the entire process. My father, Dr. Henry Bloom, died some time ago, but he is always with me. And my mother, Phyllis Bloom, and my two brothers and sister are back in Florida watching via the Webcast. I am also fortunate to have many friends and colleagues, my courthouse family in Miami, that are also viewing this on the Webcast. I have an extended an extended family that is also as well viewing this on the Webcast, and it certainly is an honor and a privilege to be here, Senator, and I am looking forward to answering your questions. Thank you. [The biographical information of Judge Bloom appears as a submission for the record.] Senator Coons. Thank you, Judge. Mr. Byron. STATEMENT OF PAUL G. BYRON, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA Mr. Byron. Thank you, sir. I would like to start by thanking Chairman Coons and Ranking Member Grassley for convening this hearing today. It is a very important process, and we are all very honored to be here before you. I would also like to thank Senator Rubio and Senator Nelson, Senator Rubio for his kind remarks and Senator Nelson for his warm introduction, and for the cooperative manner in which they have worked together. It is really inspiring to watch them in action. If I may, I would like to introduce my family. I will start with the most important person in my life, my wife of 30 years, Suzanne. Suzanne has always supported me in my desire to serve in the public, to serve this country, whether it is the Army, the Department of Justice, the United Nations, or in pursuing this particular position. We are here also with our son, David, who is an Assistant State Attorney in Florida, and his fiance, Morgan Conn. And I am also proud to introduce my daughter Alexandra, who is preparing for her graduate studies; our daughter Taylor, who is in eighth grade. And I guess musicians run in this panel. She is an accomplished violinist. And it is really truly a pleasure to be here, and I look forward to answering your questions. Thank you. [The biographical information of Mr. Byron appears as a submission for the record.] Senator Coons. Thank you. We are so far accumulating the most talented group of children to be present for a confirmation. [Laughter.] Senator Coons. So, if I might, Judge Gayles. STATEMENT OF HON. DARRIN P. GAYLES, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA Judge Gayles. Thank you, Chairman Coons, Ranking Member Grassley. I would also like to thank Chairman Leahy for this opportunity to appear before you today. I would like to thank both Senator Nelson and Senator Rubio for their support and their kind words this morning. Of course, I would like to thank the President for his nomination to the U.S. District Court. It is an honor for which my family and I will be eternally grateful. I have several family members here today that I would like to introduce brief: my life partner, Raymond Zayas; my mother, Janie Banks Gayles, who is seated directly behind me; as well as my very proud grandmother, Nettie Banks, who recently celebrated her 84th birthday. I have my younger sister, Monica Drew, as well as two of her older sons, James and Ryan, my Uncle Terryl and my Aunt Bernice, as well as a whole host of friends that are present with me today, as well as watching us on the Webcast. And I welcome any questions that you have for me today. [The biographical information of Judge Gayles appears as a submission for the record.] Senator Coons. Thank you very much, Judge Gayles. Judge Mendoza. STATEMENT OF HON. CARLOS EDUARDO MENDOZA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA Judge Mendoza. Thank you, Chairman Coons, Ranking Member Grassley, for the privilege of being here today. I would like to start by thanking the President for this incredible honor to continue serving my country. I would also like to thank Senators Nelson and Rubio for their kind words here this morning representing the State of Florida in this country. Here with me today are three very important people in my life. They are the reason why I wake up ready to attack every day and why I come home every day from work with a smile on my face: my 14-year-old son, Jack, who is a freshman in St. Augustine High School, and my 13-year-old daughter, Maddy, who is an eighth grader at Marie Middle School. No matter what is going on in my life, to them I am Dad, and that is a very important part of my life. It keeps me grounded. Sitting directly behind me is my wife of over 22 years, an accomplished physician, a wonderful wife, a caring mother, and the glue that holds this family together, Dr. April Mendoza. And I am privileged to have them here during this journey. I would also like to introduce two very close friends of mine that took time out of their busy schedules to be here today: from St. Augustine, attorney Matthew Cline, and from Washington, DC, Eric Call. I would also like to let the people in Putnam County, Florida, know that I am thinking about them. Every person that makes that courthouse work, that has made my job pleasurable while I have been in that courthouse, I appreciate what you do for the State of Florida and what you do for that county. And, finally, I want to thank two of the most important people in my lives, my mom and dad. They had the courage to immigrate to this country and leave everything they knew behind to look for a better life for their kids and for their family. I thank them for their encouragement. I thank them for never giving up on me, for always demanding the most from me. And on those times in my childhood when the scenery was not always pleasant, I thank them for letting me see my dreams through their words, always ensuring that I understood that if I worked hard and applied myself, there was no limit to what I could do. So I thank them. They are here with me in spirit. And I thank you for this privilege of being here, and I certainly invite any questions you have this morning. [The biographical information of Judge Mendoza appears as a submission for the record.] Senator Coons. Thank you, Judge Mendoza. We are now going to do questions and rounds of, I believe, 5 minutes each. Yes, the Committee will proceed with 5-minute rounds of questioning. Some Committees do 7-minute rounds. Forgive me. Senator Grassley. Since there are only two of us here, why don't you just ask all your questions, and then I will ask all my questions. Is that okay? Senator Coons. That makes perfectly good sense. Thank you to my senior Senator from Iowa, who is far more practical about the administration of these hearings than I am. If I might, just each of you in turn, if you would, beginning with Judge Bloom, just briefly describe for us, if you would, your judicial philosophy and how you would approach your role as a Federal judge. Judge Bloom. Certainly. During the almost 20 years as a State trial judge, my judicial philosophy has been to approach each case and each issue with an unbiased and open mind; to understand the limitations on my power as a judge; to apply the law faithfully to the facts as I deem them to be; and to ensure great respect and dignity to all that come before the court; to render my decisions promptly; and to always be thoroughly prepared when the issues are addressed before me. Senator Coons. Thank you. Mr. Byron. Mr. Byron. Yes, sir. Thank you. Let me start by saying I agree with Judge Bloom's position, as she stated it, in terms of the role of a judge, and I would echo that. I believe it is incredibly important for a judge to approach his or her duties with integrity, and by integrity I mean the ability to apply the law impartially in every case, regardless of the litigants, regardless of whether it is a criminal or a civil matter, and that requires strict adherence to stare decisis, to ensuring that the opinions held by the U.S. Supreme Court and the Eleventh Circuit are followed and abided by in the district courts. Having been a litigator through most of my life, either as a prosecutor or in the private sector, having certainty and predictability in the legal system is fundamentally important. And as a judge, if I am fortunate enough to be confirmed, that is a goal that I will seek to enforce every single day. Senator Coons. Thank you. Judge Gayles. Judge Gayles. I agree with Judge Bloom and Mr. Byron. I have been a judge now for nearly 10 years. I decide each case on its own merits and make my decisions based on the facts and the applicable law. And if I am so honored to be confirmed, I will continue to do that in the Federal court. Senator Coons. Thank you. Judge Mendoza. Judge Mendoza. And I agree with my colleagues. I think the finality that people look for and closure that comes out of a courtroom is better preserved and respected when the variables that go into those decisions, such as respect for the parties in front of you, efficiency, adherence to the rule of law, are what we use in reaching those decisions. And if I am fortunate enough to be confirmed by this body, I would take that forward with me. Senator Coons. Thank you. Each of you have experience in the law in a range of different backgrounds, but if I might, Judge Bloom, you have a wealth of experience serving as a State judge--several of you do--and you have experience across this whole panel in civil and criminal and international contexts, but less so in Federal law. If each of you would speak in turn to how you will prepare to administer Federal statutes and case law, if confirmed, I would appreciate it. Judge Bloom. Thank you, Senator, for the question. I have served in the State trial court in many different divisions. In each division I have handled different issues in different cases. To prepare for my transition into each of the divisions, I have certainly used my work ethic in ensuring that I understand the substantive and procedural law and that I am able to apply that law. And I have done that in each of the divisions that I have served. I have also handled constitutional issues and issues of statutory construction. I believe that the work ethic that I have shown over the last almost 20 years as a State trial judge as well as my responsibility, which I take very seriously, to understand and be able to apply the law will serve me well if I am fortunate enough to be confirmed as a Federal judge. Senator Coons. Thank you, Judge Bloom. Mr. Byron, a different background, but I think the same question is relevant, about how you would be fully prepared to serve on the Federal bench. Mr. Byron. Yes, sir. I am very happy and proud of the fact that I had the formative years of my legal career as an Assistant United States Attorney, and in that capacity we applied Federal law on a daily basis. I have served in both the organized crime section, the white-collar section, and did a tour in the Civil Division representing the VA and other governmental entities that were being sued for various causes of action. I have always come to the approach of applying the law by starting with the statute, looking at the clear language of the statute, and that is where my training began, and that is how I approach every case, even in my private practice responsibilities. I have tried a number of cases--the majority of my cases, actually--in Federal court. So looking at cases from the Federal perspective is something that is inherently in my approach to the law. Even as a State court practitioner, I follow the same analysis: looking at the statute first, its clear language, then looking at applicable controlling decisions from higher courts and analyzing the cases in that regard. To prepare myself more fully to be a district court judge, my focus will be turning toward the management of cases, which is different than being an advocate for a particular party, and I have started preparing for that by reading various manuals on management of complex litigation, how to deal with case management orders from the judge's perspective as opposed to the litigator's, and I continue to prepare myself as we move forward. Senator Coons. That is terrific. Thank you, Mr. Byron. Judge Gayles. Judge Gayles. I have spent my entire career upholding the law. I began my career as an Assistant State Attorney, and the balance of my experience as an attorney was spent in the Federal courts, both in the Federal immigration court as an Assistant District Counsel for the former Immigration and Naturalization Service, and later as an Assistant United States Attorney in the Southern District of Florida. I have worked in both the appellate section, handling appeals before the United States Court of Appeals for the Eleventh Circuit, and the major crimes section, and later in the narcotics section. And I handled in those divisions the full breadth of cases one would handle, at least in the criminal realm, from court-approved wire surveillance, grand jury investigations, any number of pre- and post-trial matters that came up before the United States district judges as well as the Federal magistrate judges. So I think I am very well versed in the Federal court and with Federal law, and I think that the 10 years I have now spent on the State court bench would only serve to assist me well if I am so honored to serve in the Federal court. Senator Coons. Thank you. Judge Mendoza, you also have experience with Federal law in your military capacity, but as a State court judge, help us with how you would prepare for service as a Federal judge. Judge Mendoza. And thank you for the question. My professional career has been a group of transitions from graduating law school to becoming a judge advocate in the United States Navy to then serving as a specially appointed Assistant U.S. Attorney for the Eastern District of Virginia to being an Assistant State Authority in St. Augustine, Assistant City Attorney in St. Augustine, now on the circuit bench. Every one of those transitions required a steep learning curve, and those sort of variables that I used in becoming proficient and efficient in those jobs are what I will take forward with me. And it is worth noting that if I am privileged enough to be confirmed, I am aware that I will be surrounded by a very capable set of accomplished colleagues in the Middle District, and I certainly will seek, unabashedly seek their advice and counsel if I am fortunate enough to be one of their colleagues. Senator Coons. Thank you, Judge Mendoza. My last question for the whole panel, if I might, is: Several of you have made reference in your opening comment to the importance of dignity, of how you treat all litigants equally, regardless of the matter that brings them before you or the circumstances that bring them before you. As a district court judge, how would you see your role in ensuring fair access to the American legal system? If you would, Judge Bloom. Judge Bloom. I believe that fair access means certainty of a decision and also the ability to know what is the decision. So in terms of my role, I certainly am going to ensure that case management is done effectively, that I will have an early scheduling order and a meeting early with the parties so that the parties know the time parameters and we can set reasonable parameters, depending upon the uniqueness of the case. I also will ensure, as I have done for the past 20 years, that my rulings are clear and they are understandable and that the rulings are prompt and that I am prepared for the hearings and I have taken the time to review the submissions ahead of time so that I am able to rule, since decisiveness is one of the--certainly the most important responsibilities of a judge. I believe that temperament and the way that the litigants are handled in the courtroom in terms of the respect and dignity that they deserve and the ability to answer questions and to refer individuals, particularly pro se individuals, to, for example, the law library that serves as a unique resource for those who may not be familiar as one who might be represented by counsel. So those are the services and the qualities that I bring to the bench in terms of access to the court. Senator Coons. Thank you, Judge Bloom. Mr. Byron. Mr. Byron. Yes, sir. I agree with Judge Bloom's observations that access to the court is a multipronged analysis. Part of it is the prompt administration of justice through scheduling orders that are consistent, they are complied with by the parties and by the court, and that when matters, including dispositive matters, are presented to the judge, that he or she rules on them promptly and does not let them languish. I think that does not help the litigants, and it certainly does not help the process in terms of access to the court, which includes not just the ability to file an action, whether it is a criminal case or civil case, but promptly moving it through to its conclusion. In the Middle East District of Florida, there are also services provided to litigants who may not have counsel. There is the Federal public defender's office. There are a variety of other panels where individuals could obtain assistance. And the court has library facilities available to help those folks, recognizing, of course, once their matter is before the court, they are treated the same as any other litigant. Senator Coons. Thank you, Mr. Byron. Judge Gayles. Judge Gayles. I think the effective administration of justice is an important goal for any judge. I think that my time in the State court has well prepared me. I agree with the sentiments of both Judge Bloom and Mr. Byron. The work of a judge is very important as far as case management and moving cases along. In Miami-Dade County, where I serve as a circuit judge, when I came into the Civil Division a couple of years ago, my caseload was approximately 4,700 cases. We are now down in my Division to about half of that. And case management, engaging the lawyers, holding status conferences, asking the lawyers what help they need to move their cases along I think are all very important because we have an important role not just to adjudicate matters but to make sure that it is done timely and effectively. Senator Coons. Thank you, Judge. Judge Mendoza. Judge Mendoza. And I would agree with my colleagues and add that, for example, in my judicial circuit in Florida, judges participate with bar associations to encourage and to promote the idea of pro bono representation and volunteerism. And to the extent that judges are possible, I think that is a very positive thing when judges are involved with bar associations to add prestige and encourage those attorneys practicing in front of them to engage in some level of pro bono work, and certainly to the extent that I am able, that would be an important part of my process. Senator Coons. Thank you for that valuable addition. Thank you very much to our four nominees. I will turn now to Senator Grassley for his questions. Senator Grassley. I generally ask different questions of different nominees, so do not feel bad if I do not ask you all the same questions. I am going to start with Mr. Mendoza, and the Chairman already asked the first question I was going to ask you, so I only have one question of you. Oftentimes when judges are here, I quote various Supreme Court Justices and ask for a comment, agree or disagree. I do not always put it in a context, so you may not know the context. This time I am going to quote Justice Scalia's speech in 2005. ``I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that is what it says''--I suppose that means the Constitution. ``If that is what it says, that is what it says.'' So two questions. Probably the second part is more important than the first part, but whether or not you agree with Justice Scalia. And second, do you believe a judge should consider his or her own value or policy preferences in determining what the law means? If so, under what circumstances? Judge Mendoza. I would start by answering the first part of your question and indicating that as a district court judge, if I were fortunate enough to serve in that capacity, I would be bound by all opinions written by the Eleventh Circuit Court of Appeal and the U.S. Supreme Court. So as far as I am concerned, all of our Supreme Court Justices are always right. And I would follow their opinions without any hesitation. My personal views do not enter into the decisionmaking process. People have to have an understanding and a belief that what comes out of court is fairly and objectively concluded. So my personal opinion does not nor will it ever enter into my decisionmaking process. I will make decisions, if I am fortunate enough to serve in this capacity, based on the facts of the case and the applicable authority that is applicable to those facts. Senator Grassley. Okay. Mr. Gayles, I have got, I guess, maybe two questions or a question with two parts. Getting to a view of constitutional interpretation, there are a number of different theories explaining how judges should interpret the Constitution. Some theories emphasize original understanding. Some emphasize literal meaning. And some analyze general principles underlying the Constitution and then apply a contemporary meaning to those principles. While all nominees who appear before this Committee repeat the mantra that you just heard from Mr. Mendoza--and I do not say that in a derogatory way--that they apply the law to the facts, I am looking for an answer with a bit more thought behind it. What interpretive model would guide you when you are faced with constitutional questions? Judge Gayles. As with a statute, when the Constitution is clear on an issue--I do not mean to be--I am not trying to be glib by saying this, Senator, but the meaning is clear, and then my job is relatively easy. As a judge, we are faced with a number of issues--constitutional issues, statutory construction issues--pretty regularly. I think in my career--well, I know in my career I have followed the law and have done it faithfully. I have never interjected my own personal beliefs as far as the law and how it should be interpreted in over 10 years. I mean, I have been reviewed by the Third District Court of Appeal. I do not think I have ever been reversed--well, I have been rarely reversed, but when I have been, it has never been because I made a decision that was far outside the dictates of the law. I respect the law. I am sworn to uphold the law. And I will follow Supreme Court precedent as well as Eleventh Circuit precedent if I am so fortunate to be confirmed. And the specific question that you asked me as far as how I will consider Supreme Court--I am sorry, constitutional language, I do not believe that I have an overarching philosophy regarding the issue, but I will faithfully uphold the law. Senator Grassley. I am going to quote for you from Justice Breyer, and then I have got a couple questions that follow on this. Justice Breyer has described the law as ``a conversation among judges, among professors, among law students, and among members of the bar.'' He provided this description in the context of his argument that it is sometimes appropriate for judges to look to sources other than the Constitution or Federal statutes when reaching a decision about what the law means. The first question, and then I will let you answer that, and then the second one. First, do you share Justice Breyer's views that judges should occasionally look for guidance from sources like law review articles or other scholarly comments, commentaries? Judge Gayles. I respect the Justice's statement and opinion regarding that issue. I think our Constitution has served us well for over 200 years. Consistency I think is important. I think certainly revealing a treatise or law review article, it might be nice to maybe get an understanding, but that should certainly not be the guiding force as far as how you interpret the Constitution. So I respect the Justice's statement, but I do not completely agree with it. Senator Grassley. Okay. And, second, do you believe that it is appropriate to rely on legislative history--I also have down here ``floor statements made by Members of Congress,'' but I think that is all part of legislative history, as well as Committee reports--when deciding what a law means? Judge Gayles. That may be a factor after you have considered other factors in interpreting a statute. When I was an undergraduate at Howard University, I had the good fortune of interning on the Hill for the House of Representatives Standing Committee for the District of Columbia. I know a bit about how the legislative history comes about. I know that it is not inherently reliable. There may be problems with relying on that. So it would not and it has never been a cornerstone of how I interpret a statute. It is an available tool, but it is not something that I rely upon. Senator Grassley. Just as an aside, Justice Scalia would like to hear what you said, because I asked him that question when he was up for confirmation almost 30 years ago, and he said, ``I never rely on it at all. You cannot rely on it.'' [Laughter.] Senator Grassley. Or something to that effect. I am going to go to Mr. Byron. In 2004, you gave a presentation on combating terrorist financing through charitable organizations. I realize that the purpose of your presentation was to help attendees recognize that there are fake charities set up for purposes of financing terror. In one slide you discussed ``barriers in the fight to stop terrorists.'' One of these barriers is the fact that religious organizations and churches are not required to file Form 990 and the facts that the IRS cannot routinely examine churches. Could you discuss in more detail the problems that you were referring to? Mr. Byron. Yes, sir. I was focusing not on the Establishment Clause or the free exercise of religion aspects. Certainly that was not part of my focus. My focus was more from a procedural or a tactical approach of transparency, and I do not believe that those comments were intended to include, for lack of a better term, mainstream religious organizations. I was really talking about fronts that at that time had been identified as being front organizations that were hiding behind the cloak of being a religious organization, in part to avoid transparency and the movement of money. And that failure to have transparency in those organizations frustrated the ability of law enforcement to track the flow of money and allowed for individual donations to be collected and moved overseas for terrorist financing proposes. There had been an investigation actually in Alexandria, I think, at that time of just such an organization. I was really referring to that, and not mainstream religious organizations or the fact that our Constitution provides certain protections and rights to religious *organizations, which I fully support and agree with. Senator Grassley. Okay. And my last question to you, when is it appropriate for the Federal Government to preempt State law? If confirmed, what sources and approaches would you utilize to assess whether Congress or the executive branch, in fact, intended to preempt State law and acted within the scope of their authority to do so? Mr. Byron. Yes, sir. Thank you, sir. I think we have to start with the Tenth Amendment, which sets forth exactly the division of power between the Federal Government and the States. And I think Justice Roberts spoke about that in the National Federation of Businesses v. Health and Human Services, which we are all familiar with. He gave a very detailed explanation of the division of powers between the Federal Government and the State authorities and when preemption is not appropriate, such as commandeering the activities of what are typically purely State functions. So there is this interplay between the Necessary and Proper Clause, the Commerce Clause, and the taxation authorities, for example, of the United States, and the line is drawn between the authority of the Federal Government and the States, depending on the issue, whether it is a Commerce Clause issue or some other issue. So my approach, sir, would be to look at the particular activity that is being preempted or governed, and then go back to the Constitution to determine, first off, is it a Federal or a State right that we are dealing with. And if so, is the particular statute that is being applied one that fits within the authority of the Federal Government to regulate that behavior, looking at controlling case law to guide me along the way, sir. Senator Grassley. Thank you. And, Ms. Bloom, I have two questions for you. I believe, looking at your record, that you have not had much, if any, Federal law experience either as a practicing attorney or a judge. If I am wrong on that, you can correct me. So, question: Are you comfortable with the Federal rules and procedures? And since being nominated, have you taken any steps to familiarize yourself with them? Judge Bloom. Thank you for the question, Senator Grassley. The answer to both is yes, and in terms of my feeling comfortable, certainly I have handled constitutional questions as a State trial court judge as well as statutory construction. So I certainly believe that my skill set in the State trial court will serve me well, and certainly my work ethic, in taking the opportunity to understand the substantive and procedural law. And in terms of my preparation, I have certainly taken the time to observe many of our Federal judges in the Southern District. I now have the Federal Judicial Center's Manual that I have started to review. I have read the Federal Rules of Civil Procedure and am now reacquainted with the Federal Rules of Evidence that I remember from my days in law school. And certainly I have had experience with the Sentencing Guidelines since I have served for many years in the Criminal Division. So I certainly have had that experience. So in answer to your question, Senator Grassley, I believe that I am well prepared if I am fortunate enough to be confirmed. Senator Grassley. Okay. And my last question has two parts. You have been reversed by the appellate court on a couple of occasions. I would like to ask you about a case where you did not grant a recusal motion. First, what factors do you consider when reviewing a recusal motion? And I might as well ask the second part of that. Can you explain the situation in Miami Elevator v. Marbrad, a case where you did not recuse? And how did you reach your decision? Judge Bloom. Thank you, Senator, for the case. The first case in which I was reversed for my failure to recuse myself was, in looking at the factors, the motion itself was legally insufficient. It was not signed by the moving party, the client. It was only signed by the attorney. And there were no facts that were attested to. So certainly from the case law in the Third District it was found to be legally insufficient. In the Miami Elevator case, I do not particularly remember what were the facts that led to my recusal, but certainly it was grounded on a legally sufficient motion to recuse. Senator Grassley. Congratulations, all of you, and thank you. Judge Bloom. Thank you, Senator. Mr. Byron. Thank you, Senator. Judge Gayles. Thank you. Judge Mendoza. Thank you. Senator Coons. Thank you, Senator Grassley. At this point, there being no other questions, I will simply suggest that Members of the Committee who were not able to be with us today but want to submit questions for the record may do so for 7 days, and this hearing is hereby adjourned. [Whereupon, at 10:49 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 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] NOMINATIONS OF HON. JULIE E. CARNES, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; JILL A. PRYOR, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; LESLIE JOYCE ABRAMS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA; HON. MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; MARK HOWARD COHEN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; LEIGH MARTIN MAY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; AND HON. ELEANOR LOUISE ROSS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA ---------- TUESDAY, MAY 13, 2014 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 9:30 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Richard Blumenthal, presiding. Present: Senators Blumenthal, Feinstein, Durbin, Klobuchar, Franken, Coons, Hirono, Grassley, Lee, and Flake. OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF CONNECTICUT Senator Blumenthal. I am very pleased to call this hearing to order. I want to welcome the Ranking Member, Senator Grassley, and thank Senator Leahy for giving me this opportunity to chair this very, very important hearing. In my view as a lawyer and a litigator, the U.S. Senate has few responsibilities more important than the confirmation of judicial nominees. They are the voice and face of justice in this country. Whether at the district court or the court of appeals level, they practically and really are the ones who determine the quality of our courts, our justice system, and what most Americans see is their face and voice when they seek justice in our courts. And as one who has practiced before many judges, I have the highest respect for the work, the very hard work that they do, the sacrifices they make, the service they provide to our country and, likewise, that their families provide. So I want to welcome all of the nominees here today, including your families, who are part of your team, each of your teams, and contribute mightily to the work that you will do. And I am particularly honored today to welcome two of our colleagues, two of our most able and well regarded colleagues, Senators Isakson and Chambliss. And if you have an opening statement, I would be pleased to call on you and then go to our two colleagues. OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Thank you. I just shook hands with all the nominees. I want to congratulate you once again. And I want to also congratulate your family and friends, who obviously are proud of your advancement today. Today we are going to hear from seven nominees who have been nominated to serve in courts in Georgia: two appellate court nominees and five district court nominees. Today's hearing is a product of very long deliberations between the White House, the Georgia Senators, and this Committee. I am happy to see this bipartisan solution to the vacancies in Georgia, and I am looking forward to hearing from today's nominees. I would note that one Member of the House of Representatives requested to testify in opposition today, and the Chairman did not grant that request. The Chairman's decision regarding outside witnesses in opposition to judicial nominees for lower courts is very consistent with past Judiciary Committee practice. I would also note that several outside liberal interest groups have already weighed in on and urged Senators to oppose two of today's nominees. Now, I would hope that my Democrat colleagues would not subject these nominees to any litmus test, and instead I would hope my colleagues would give these nominees the same benefit of the doubts and give their home State Senators the same deference that Republicans so often provide for President Obama's nominees. As Senators, nearly every nominee who comes through our Committee has taken some position that we may disagree with. That is why home State support is so important, and as I have said, all these nominees have the support of both the President of the United States and their home State Senators. I have given great deference to the home State Senators' support when reaching decisions on whether to support nominees. I believe home State support is important in the process, including the Judiciary Committee, as well as the full Senate. In fact, very soon the full Senate will consider six district court nominees from Arizona. Even though I have some concerns about several of those nominees, I plan to support them in part out of deference to home State Senators who recommended them. I would hope that my colleagues on the other side would show the same deference with respect to the nominees that we are going to hear today. So, once again, I welcome the nominees and their families today and look forward to their testimony and their answers to our questions. Thank you. Senator Blumenthal. Thank you very much, Senator Grassley. Senator Chambliss, welcome, and thank you so much for being here. It means a lot to us, and I am sure to the nominees that you and Senator Isakson are here today for. Thanks. PRESENTATION OF HON. JULIE E. CARNES, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; JILL A. PRYOR, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; LESLIE JOYCE ABRAMS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA; HON. MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; MARK HOWARD COHEN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; LEIGH MARTIN MAY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; AND HON. ELEANOR LOUISE ROSS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA Senator Chambliss. Well, thank you very much, Senator Blumenthal, and to you and Ranking Member Grassley and other Members of the Committee, particularly Chairman Leahy, with whom Senator Isakson and I have worked so closely together to reach this point, not just the point of the hearing but to reach the point of the nominations, I thank you. We are here today to consider the nominations of Julie Carnes and Jill Pryor to be circuit judges for the Eleventh Circuit; Leslie Abrams to be a district court judge for my home district, Georgia's Middle District; and Michael Boggs, Mark Cohen, Leigh May, and Eleanor Ross to be district court judges for Georgia's Northern District. Johnny and I, Senator Isakson and I have a committee of six very distinguished lawyers from around the State who are our judicial nomination review committee, and we have one simple requirement of those six lawyers, and that is, when considering judicial nominees, send us excellent lawyers. In this case today, we have got seven excellent lawyers to be presented to the Committee for ultimately, hopefully, confirmation to the Eleventh Circuit as well as to two of our districts in Georgia. Now, they will introduce their family, but these seven individuals are so highly thought of by lawyers in Georgia that today there are two individuals here, although the last I heard they were stuck in traffic--I hope they are here by now. But there are two individuals who represent the epitome of the legal justice system in Georgia who on their own have spent their time and spent their money to come show their support for all seven of these individuals, and that is, the Chief Justice of the Georgia Supreme Court, Justice Hugh Thompson; and also the Chief Judge of the Georgia Court of Appeals, Judge Herbert Phipps, is here to show support. It is my pleasure to introduce these Georgians, the seven Georgians, to the Committee today. We have before us a very diverse and highly qualified group of legal minds from all across our States. Georgia and the Eleventh Circuit will be well served by both the breadth and depth of experience of these individuals. Their full biographies are well known to the Members of the Committee, so I will not go into extensive detail. But I do want to take a moment just to briefly recognize each of these nominees. Judge Julie Carnes has been a Federal district judge for the Northern District of Georgia since 1991, and she has served as chief judge since 2009. Jill Pryor has been in private practice in Atlanta for nearly 25 years. During that time she has played a pivotal role in some of the largest and most complex cases in Georgia history. Leslie Abrams has been an Assistant U.S. Attorney in Atlanta since 2010. Her experience both as a Federal prosecutor and from her time in private practice will serve her well on the bench. Judge Michael Boggs has served on the bench since 2004, first as a superior court judge, which is our highest trial court level, and as a judge on Georgia's court of appeals since 2012. He was also co-chair of Georgia's Criminal Justice Reform Council in 2012 and 2013. I found out yesterday Judge Boggs has actually disposed of in excess of 14,000 cases while on the bench. Mark Cohen's legal career actually began clerking for a Federal judge. He then went on to work with both the Georgia Attorney General's and the Governor's offices before entering private practice in 1999. After a Federal clerkship of her own, Leigh May entered private practice in 2000, and she has been accumulating accolades ever since. She has been repeatedly recognized as an outstanding lawyer by her peers. Finally, Judge Eleanor Ross has been a State court judge since 2011 where she has an outstanding record. Prior to her time on the bench, she worked for more than 15 years as a prosecutor. Each and every one of these individuals would be an asset to the Federal bench no matter where they sat. But given the growing caseloads for judges on the Eleventh Circuit and the Northern and Middle Districts, their confirmations are particularly important. Finally, I would like to take a moment to thank the President, his counsel, Kathy Ruemmler, and the rest of his staff for going above and beyond in this process. The collaborative effort here is an example of what we can accomplish when we work together, and I am greatly appreciative of the time they put in to ensure these vacancies are filled with such high-caliber individuals. And with respect particularly to Kathy Ruemmler, she has served the President well as his counsel. Unfortunately, she is leaving the Office of Counsel to the President at the end of this week, and we will certainly miss Kathy but wish her well in her future private endeavors. So, Mr. Chairman, thank you very much for letting us be here this morning to introduce this outstanding panel of seven Georgia lawyers to be considered for confirmation as Federal judges. Senator Blumenthal. Thank you, Senator, for those excellent remarks. Senator Isakson. PRESENTATION OF HON. JULIE E. CARNES, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; JILL A. PRYOR, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT; LESLIE JOYCE ABRAMS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA; HON. MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; MARK HOWARD COHEN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; LEIGH MARTIN MAY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; AND HON. ELEANOR LOUISE ROSS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. JOHNNY ISAKSON, A U.S. SENATOR FROM THE STATE OF GEORGIA Senator Isakson. Chairman Blumenthal, Ranking Member Grassley, Senator Franken, Senator Klobuchar, it is an honor for me to be before the Judiciary Committee today. I associate myself with all the remarks made by Senator Chambliss. We are presenting to you today seven very qualified lawyers to be on the bench of the circuit court and the district court of our State of Georgia: Julie Carnes and Jill Pryor to the circuit court; Leslie Abrams, Mike Boggs, Mark Cohen, Leigh May, and Eleanor Ross to the district court. Now, I am not a lawyer, Mr. Chairman, but I ran a company for 33 years, and I have been in court a few times. And I know what I like to look for in a judge, and that is, somebody that is going to call it like they see it; they are going to call it down the middle. They are going to be fair, they are going to be equitable, and they are going to be respected. I can submit to you that, without reservation or question, all seven of these individuals meet every one of those tasks. As Senator Chambliss has said, he and I have a joint committee of six lawyers from around the State that vet all of the potential nominees for the court appointments that we have to offer and we will confirm. All six have given these their highest recommendation in the vetting process and recommended them without reservation. I also want to thank the President of the United States. We have had a process that began 3 years ago to fill what then were two vacancies, now are seven vacancies in Georgia. Without hesitation or reservation, President Obama has been inclusive of Senator Chambliss and myself and our committee, and Kathy Ruemmler has done a steadfastly wonderful job to see to it that the very best nominees from our State come before you today to be introduced. I would not single one of them out because, as you can tell, they are all exceptional, but I have to add one note of personal privilege. Thirty-seven years ago, I served my first year in elected office in Georgia as a member of the Georgia House of Representatives. Back on the back row of the Georgia Legislature was a guy named Charlie Carnes. He was called ``the head of the Saw Mill Gang,'' which were seven members that sat at the back of the room and made it tough on any of us arguing any case before the Georgia Legislature. His daughter, Julie, is here today, and I am confident that Charlie is looking down with great pride of a father in a wonderful daughter who has had a distinguished career and I am proud to call my friend, and I am proud to call Charlie my mentor. So it is a privilege for me to introduce to you these seven distinguished nominees for the bench in Georgia. We would appreciate your looking favorably upon their confirmation, and we thank you for your time today. Senator Blumenthal. Thanks, Senator Isakson. Thank you both for your insights and wisdom about these nominees. And I know you have tremendously busy schedules, so just to tell everyone here you may not be able to stay for the remainder of the hearing, but we really very much appreciate your contributing as you have this morning. Thanks so much. I will now ask the first panel to please come forward: Julie Carnes and Jill Pryor. The Committee welcomes you. They are nominees to serve as circuit judges for the Eleventh Circuit. Julie Carnes has served as a judge on the United States District Court for the Northern District of Georgia since 1992 and as chief judge since 2009. And Jill Pryor has been an attorney at Bondurant, Mixson and Elmore--I hope I got the pronunciation right--since 1989, serving as a partner since 1997. Our custom here is to swear you in first, so I am glad you are standing. Do you affirm that the testimony that you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Carnes. I do. Ms. Pryor. I do. Senator Blumenthal. Thank you. If you have a short opening statement, we would welcome you to give it. Judge Carnes. Starting with me, Senator. Senator Blumenthal. Judge Carnes. Judge Carnes. All right. Certainly. STATEMENT OF HON. JULIE E. CARNES, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT Judge Carnes. First, I would like to thank President Obama for this high honor that he has conferred on me. I am deeply appreciative of the President for the trust he has placed in me. Second, I would like to thank our Georgia Senators, Senators Chambliss and Isakson. I know that but for their recommendation of me to the President and their enthusiastic support, this would not have come to pass. And, last, I would like to thank you, Senator Blumenthal, and you, Senator Grassley, for both presiding and serving as Ranking Member, respectively, and to all the other Senators who are joining us. It is a great honor just to appear before this body. I think I can speak confidently for all seven of us that we recognize this is a large group of people to have at a hearing, and I know there must have been some logistic challenges for you all to put this group together. So we are appreciative for the opportunity for the hearing. Now I would like to introduce the family members that I have present with me today. First, my husband, Steve Cowen, who is behind me. Steve is a very respected lawyer in Atlanta. He is the smartest, wisest lawyer I have ever dealt with, and he is a man who has made a lot of personal and professional sacrifices through the years in support of my career, for which I am always grateful. My daughter, Kelly, I think is behind me. Kelly is an Assistant Attorney General for the State of Georgia, a lawyer. My step-daughter, Susanna Cowen, and her husband, Ross McSweeney, are here, back there somewhere. You will not be surprised they are also lawyers. Both are lawyers. They live here in DC. But I guess the headline news for them recently is that Susie gave birth in November to twins, Felix and Orla, and made us grandparents for the first time. So that has been a happy occasion. There are three people not here who I would like to acknowledge: my son, Jeff Campanella, is pursuing an acting career in L.A. He would certainly want to be here with you, Senator Franken, to meet you. That would have been a wonderful honor. [Laughter.] Senator Franken. Why? [Laughter.] Judge Carnes. In the hopes you could find a job for him. Senator Blumenthal. Your first mistake was giving Senator Franken the floor. [Laughter.] Judge Carnes. And, second, the two people that have meant the most to me in my life and are responsible directly and indirectly for every good thing that ever happened to me, and that would be my mother and my father. My mother, Mary Carnes, celebrated her 87th birthday last week but due to health reasons could not be here. My father, you heard Senator Isakson speak of him. He had a remarkable life. He was the youngest of 13 children, grew up in a very poor farming family in north Georgia, signed up for the Navy in World War II and in the Korean War, came back and used the GI bill to finish his education, going to school for 9 years at night to get a college and law degree, and ultimately running for the legislature and then becoming chief judge of his court for 17 years. And he was a very esteemed and beloved figure in Georgia legal circles, was a great mentor to me, and was the most patriotic man I have ever met. He would just be thrilled that this happened. And so with that, I appreciate your indulgence, and I am happy to answer any questions, Senator. [The biographical information of Judge Carnes appears as a submission for the record.] Senator Blumenthal. Thank you, Judge Carnes. Ms. Pryor. STATEMENT OF JILL A. PRYOR, NOMINEE TO BE CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT Ms. Pryor. Good morning, Senator Blumenthal, Ranking Member Grassley, Senators Durbin, Klobuchar, and Franken. I thank you and the other Members of the Senate Judiciary Committee, Chairman Leahy and the others, for considering my nomination. Appearing here today is the greatest honor of my life. I say that honestly. It is also a great privilege to be here with Chief Judge Carnes. She has been a mentor and a role model to me and countless other women lawyers in the State of Georgia. I would like to thank Senators Isakson and Chambliss for their generous introductions and also for working hard with President Obama, whom, of course, I would also like to thank, in the spirit of cooperation to fill the judicial vacancies in the State of Georgia. With me here today are some of my family members: My husband of nearly 20 years, Edward Krugman, who is also my law partner and one of the finest lawyers I have ever encountered. My 16-year-old son, Pryor Krugman, is here. He is a student at the Paideia School in Atlanta, and I am very pleased that he is here. Also, my friend, Julie Reiley, who was my roommate my very first year in law school, and has been a friend ever since. I have a daughter, Leila Krugman, who unfortunately is at home in Atlanta. She came down with a little bit of a bug over the weekend. But I have to say, at the age of 13 years old, she would probably rather go to school than have to spend a couple of days with her parents. So we are probably fortunate that she is not here today. I also have people---- [Laughter.] Ms. Pryor. She is very well behaved, though. It would have been the weekend that would have been tough. I also have people watching from home: my parents, Jerry and Ginny Pryor. Without their loving guidance, I would not be here today, that is for sure. My aunt and uncle, Carol and Bob Madden; my sister, Suzanne Henderson; my sisters-in-law, Deucy Rachelson and Laura Venzall, and their families, and many other families and friends are watching and cheering me on today. Twenty-five years ago, I had the privilege of clerking for Judge Edmondson on the Eleventh Circuit, and to commemorate my hearing today, Judge Edmondson gave me the gift of this vintage World War II eagle pin that I am wearing. Judge Edmondson is the person who first started me on the path with this tremendous institution, the Eleventh Circuit. I am very grateful to him for that and for his guidance over the years. And, finally, I would like to extend my gratitude to Emmet Bondurant, Mickey Mixson, Jay Elmore, and all the partners, associates, and staff of my law firm, Bondurant Mixson and Elmore, who have generously supported me throughout this process. They are some of the finest professionals I have ever met, dedicated to their cases and their clients, and I cannot thank them enough for all of their support. Anything I have accomplished in my legal career, I owe the credit to them. Thank you, and I am ready for your questions. [The biographical information of Ms. Pryor appears as a submission for the record.] Senator Blumenthal. Thank you both for those excellent opening statements. Judge Carnes, I am interested, perhaps you could tell us what you think will be the greatest challenges in going from the district court to the court of appeals. Judge Carnes. Well, I think it should be a pretty smooth transition. I will go for the positive parts before I get to the challenge. Most of the cases that they handle are cases I will have handled over the last two decades. And while district judges handle trials and hearings, we also issue a lot of opinions, so opinion writing is what appellate judges do, and I am familiar with that. What I think will be the major difference is the process by which opinions are issued. As a district judge, we all write our opinions by ourselves, with no input or review from anyone else. On the court of appeals, of course, it is a different matter. You operate in panels of three, and that means that opinion writing, decisionmaking on the court of appeals is a collaborative process, and you have to work with other people. And so that will be a difference for me. I hope--I think that I will be able to master that. I know most of the judges on the court. Ms. Pryor and I know each other and have a very cordial relationship, and I hope that will be a pretty easy transition. Senator Blumenthal. Have there been times during your service as a district court judge when you staunchly disagreed with the outcome and opinion of your court of appeals? Judge Carnes. You mean with regard to one of my cases? Senator Blumenthal. Exactly. Judge Carnes. ``Staunchly'' would be strong. No judge likes to be reversed, and sometimes if you are reversed, you look at it and say, well, you know, maybe there was a point there; maybe they had it righter than I had it. And sometimes you read it and think, well, no, I think I disagree. So you see it both ways. But I do not think I have ever had staunch disagreement with anything they have done. Senator Blumenthal. Ms. Pryor, what do you think for you will be the greatest transition challenges going from private practice to the judicial role? Ms. Pryor. Well, Senator, obviously, I have been an advocate for more than 25 years, so it will be a little different to assume the role of a judge. However, I have practiced appellate practice for all of those years, and I am familiar with the impact of decisions on the parties, the litigants who come before the court and the importance of well- reasoned, clear opinions that will guide the parties' actions and practicing lawyers in the future. I have also had the opportunity, as I said, to serve as a law clerk on the Eleventh Circuit Court of Appeals. So I think the difficulty, most of the difficulty, will be involved with the internal procedures and practices of the court, becoming familiar with those and learning how to be efficient in my work. Senator Blumenthal. Have you practiced a great deal before the court of appeals? Ms. Pryor. Yes, I have, sir, as well as the State court of appeals and Supreme Court. Senator Blumenthal. Thank you. Senator Grassley. Senator Grassley. I am going to start with Ms. Carnes. You have had a distinguished career as Assistant U.S. Attorney, appellate practitioner, commissioner on the U.S. Sentencing Commission, and now as chief judge. I would ask you a few specific areas of your judicial practice. I am going to start with the scope of remedies available under Section 1983 when a constitutional violation occurs. I would first point you to AT&T Wireless v. Atlanta. This is one of those cases that you did not want to be reversed in, I assume. So let me ask you a few questions. As an appellate judge, how would you decide what is the scope of remedies available under Section 1983? Judge Carnes. And I think it was a long time ago, but I believe the case you are referring to is where AT&T had sued because a particular county was not giving them cell phone access or something. And they won on that point. I agree they won on that point. But AT&T went a little bit farther, and they sued under 1983 so that they could get attorneys' fees. And I ruled that while they could get their cell phone put up that they could not sue pursuant to 1983 because this was a very carefully regulated area by the Congress and 1983 did not come into play. The Eleventh Circuit initially reversed me, but then the case was vacated, called for en banc. They never got to a point of an en banc hearing. AT&T went away, and I do believe the Supreme Court in the next couple of years issued an opinion that vindicated my original position. Senator Grassley. Okay. In another case, Schwier v. Cox, that the Eleventh Circuit reversed in 2003, that was involving 1983 remedies for violation of voting rights and the Privacy Act. I would like to have you talk about your views on the scope of remedies available for violation of privacy rights and voting rights. Judge Carnes. Well, in that particular case, there had been no precedent in the circuit, and I actually relied on a Ninth Circuit case in holding that there was no private right of action for this particular alleged breach. The circuit disagreed with me, and, of course, in that case or any other case, I will follow their precedent in the future. Senator Grassley. And what about the voting rights issues? Judge Carnes. Which case are you referring to, Senator? Senator Grassley. What? Judge Carnes. Which case are you referring to? Senator Grassley. Well, I thought both privacy rights and voting rights were involved in the Schwier case. Judge Carnes. Well, as I recall--again, it has been a long time, but it was whether or not the potential voter was required to give her Social Security number as a prerequisite to being allowed to vote. Senator Grassley. Thank you. Now, a little more general question for you, and I am going to refer to Justice Breyer. He has described the law as ``a conversation among judges, among professors, among law students, among members of the bar.'' He provided this description in the context of his argument that it is sometimes appropriate for judges to look to sources other than the Constitution or Federal statutes when reaching a decision about what a law means. First question of two that I will ask: Do you share Justice Breyer's views that judges should occasionally look for guidance from sources like law review articles or other scholarly comments? And maybe I better--just leave Justice Breyer out of that. Let me say, Do you share a view that judges should occasionally look for guidance from sources like law review articles or other scholarly commentary? Judge Carnes. I do not think there is anything wrong with looking at a law review article for the purposes if they have collected a lot of cases and it shortens the research process. But to the extent that the statement is being made to indicate that a judge should try to be--or be influenced in the decisionmaking by what a law professor or someone has said, absolutely not. We rely on the cases, not the opinions of someone in academia. Senator Grassley. And my last question: Do you believe that it would be appropriate to rely on legislative history when deciding what a law means, assuming the law is not clear? Judge Carnes. Well, I think for most judges, legislative history is the last thing you look to if nothing else is there to help you. And like a lot of judges, I am a little leery about it. I would never say never, but I think the theory or the concern is that legislative history is not something Congress enacted; it is something that staff members have written after the fact. And so all else would have to fail before I would look at the legislative history, and I look at it with great scrutiny. Senator Grassley. Thank you. Now I am going to go to Ms. Pryor. During your legislative career, you have been involved with several challenges to Georgia's parole system. What has been your interest in parole issues? Ms. Pryor. Well, Senator, throughout my career as a lawyer, I have taken on pro bono cases, and in the parole cases you mention, particularly the Sultenfuss case, I was actually appointed by the Eleventh Circuit to represent an inmate who was proceeding pro se. And I think pro bono work is very important, and when the court calls upon me to do that work, I have always responded in the affirmative. Senator Grassley. Okay. So then your interest comes mostly when you were invited into that environment? Ms. Pryor. Yes, sir. I had no previous knowledge or experience with that issue. Senator Grassley. Is there anything about this experience that would influence your review of lower court sentencing decisions if confirmed as an appellate judge? Ms. Pryor. No, sir. I would apply precedent and follow the law. Senator Grassley. The next question might sound confrontational. It is a question I ask a lot of people that are involved in political activity. Over the course of your career, you have contributed to quite a few Democratic causes and politicians over the years. So I always seek assurances that these nominees can give me that you will be fair to all litigants who come before you, and in particular those who represent or who advocate on behalf of causes that you may disagree with personally or politically. Ms. Pryor. Senator, my personal beliefs or political beliefs would not enter into any judicial decisionmaking that I might have. I was exercising my First Amendment rights in those situations. But, of course, as a judge and also as a nominee, I am prohibited from engaging in any such activity. Senator Grassley. Okay. Two more questions. If confirmed, what would be your judicial philosophy or approach in applying the Constitution to modern statutes and regulations? Ms. Pryor. Well, the Constitution is an unchanged document, I believe. Obviously, we have to apply it to new situations and new technologies, but I do not believe that that changes the meaning of the Constitution itself. Senator Grassley. Last question: Do you believe that a judge's gender, ethnicity, or other demographic factors has any or should have any influence on the outcome of the case? And I would like to have you explain if it would have. Ms. Pryor. No, I do not. Senator Grassley. Okay. Thank you, Mr. Chairman. Thank you, both nominees. Senator Blumenthal. Thank you, Senator Grassley. I want to enter in the record, if there is no objection, a statement from Senator Leahy and then go to Senator Durbin. [The prepared statement of Chairman Leahy appears as a submission for the record.] Senator Durbin. Mr. Chairman, thank you. In the interest of time, I would just acknowledge that Judge Carnes, in testifying before the House Judiciary Committee 5 years ago, raised an issue relative to mandatory minimum sentencing and what you described as the ``blunt and inflexible tools'' of that law. And I would just note that we have passed out of this Committee, now pending on the floor, the Smarter Sentencing Act, which is going to address that not just for you but for all Federal judges in the future. So I thank you for that testimony, and I would yield back to the Chair. Senator Blumenthal. Thank you, Senator Durbin. Senator Franken. Senator Franken. Thank you, Mr. Chairman. Congratulations to you both. Judge Carnes, congratulations on being a grandparent. Judge Carnes. Thank you. Senator Franken. It is a big deal. And, also, I am sorry that your son has chosen to be an actor. [Laughter.] Senator Franken. That almost never turns out well. [Laughter.] Judge Carnes. Maybe he will listen to you more than to us. Senator Franken. No. I hope he has a great career. You talked both about being reversed and being reversed I guess from the standpoint of being a district judge by a circuit court judge. But there are going to be reversals, too, when you are on the circuit court, or there may be. And, you know, you also both talked about judging in your job, remaining true to precedent. I am not a lawyer. When I first got here, the fifth day I was here we had the Sotomayor confirmation hearing, on my fifth day. And I was kind of a little bit confused by one thing, which is that it seemed that Judge Sotomayor, who had been on the circuit court, had been taken to task for two decisions that she made that were overturned by the Supreme Court. One was on hiring firefighters and the promotions, I guess, of firefighters in New Haven and using race as part of that. And she voted one way, and it was decided that way. And then the Supreme Court reversed that decision. But it seemed to me that she had been observing stare decisis and that she had been ruling according to precedent. Then there was another one on the Second Amendment, and the same thing was the case. But she was very much taken to task by Senators on the other side. If you are reversed by the Supreme Court but you had observed stare decisis, what is your feeling about that? Judge Carnes. Well, I think on the court of appeals you really have no choice but to do that. If I am sitting on a case and there has been precedent in the Eleventh Circuit, I am required to abide by that precedent. I have no other alternative, except there is a provision for en banc. So if on the appellate court a judge believes that the precedent on which she is relying has fallen into disuse or it is confusing, it is not creating clear standards for the litigants or there are conflicting opinions, then you can request an en banc and have the full court decide. But absent that, if a judge is relying on precedent, I do not think that judge can be faulted for that. Senator Franken. That is kind of what I thought, too. And, Ms. Pryor, you said you were going to rule according to precedent, right? Ms. Pryor. Yes, Senator. Senator Franken. So when a situation comes up when there is a question like, okay, this is something that is pretty ripe, but there is really no cause for me to go en banc, then that is the proper way to go, right, is to rule according to what has already been decided by the Supreme Court or by the court itself? Ms. Pryor. Yes, Senator Franken. Senator Franken. Okay. That is what I agree with, and that is what I thought then, and it is what I think now. Congratulations again to both of you for your nomination, and thank you, Mr. Chairman. Senator Blumenthal. Thanks, Senator Franken. That is all of our questions for you this morning. We thank you again for being here as well as your families and wish you well. The positions that you are hopefully going to occupy are positions of immense trust and importance to our justice system. Again, thank you for your willingness to serve. Thank you. Judge Carnes. Thank you. Ms. Pryor. Thank you, Senator. Judge Carnes. Thank you all. Senator Blumenthal. We will go on now to our next panel, if they would come forward. If you would please raise your right hand, do you affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Ms. Abrams. I do. Judge Boggs. I do. Mr. Cohen. I do. Ms. May. I do. Judge Ross. I do. Senator Blumenthal. Thank you. Please be seated, and I invite each of you to provide an opening statement. STATEMENT OF LESLIE JOYCE ABRAMS, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA Ms. Abrams. Thank you, Chairman Blumenthal, Ranking Member Grassley, Senator Durbin, and Senator Franken. Thank you all for being here, for calling this hearing, and for hearing from us today. I would also like to thank President Obama for this nomination and for the faith that he has put in me. Now I would like to recognize several people who are here with me, both family and friends. First, two people who are simply the best thing that have ever happened to me and who have never missed a parent-teacher conference, a recital, or anything that has been important to me, my parents Reverend Robert and Carolyn Abrams, who are seated right behind me. My parents are both ordained elders in the United Methodist Church. Also with me is one of my college roommates from Brown University, Tiffany Thompson, and her mother, Mrs. Thompson, who I lovingly refer to as ``my fairy godmother.'' Two of my best friends and study group members from Yale Law School who are part of a group of friends that still get together every year, and we called ourselves the ``Law School Ladies,'' Becky Monroe and Kristi Graunke. And two of my compatriots from my time at Skadden Arps Slate Meagher and Flom here in DC, Keba Marshall and Avia Trower. I also have watching via live streaming my five brothers and sisters--Dr. Andrea Abrams, the Honorable Stacy Abrams, Richard Louis Abrams, Walter Abrams, and Dr. Jeanine Abrams McLean--as well as my grandmother, Wilter Mae Abrams. I would also just like to thank my U.S. Attorney's Office family, my Skadden family, and my family from Central United Methodist Church, as well as the judge that I clerked for, United States District Court Judge Marvin J. Garbis. Thank you. [The biographical information of Ms. Abrams appears as a submission for the record.] Senator Blumenthal. Judge Boggs. STATEMENT OF HON. MICHAEL P. BOGGS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA Judge Boggs. Thank you, Senator Blumenthal, Ranking Member Grassley, Members of the Committee for the opportunity to be here today. I would like to also thank Chairman Leahy and his staff for arranging for this meeting. I am very proud and appreciative to the President for nominating me. I also want to thank Senator Chambliss and Senator Isakson for the warm introduction and for their support throughout this process. I have with me today my wife of 15 years on Thursday, although I am not sure a trip to DC was what she had in mind for an anniversary gift, but we will celebrate our anniversary on Thursday, and my wife, Heather, is a kindergarten teacher in the public school systems in Georgia, and I am really proud of what she does to improve the lives of so many young children in our State. She was the Teacher of the Year last year for our school district, and I get quite a bit of encouragement from her and what she does. I am also honored to have two special guests from the judiciary in Georgia with me today. Seated behind me is Chief Justice Hugh Thompson of the Georgia Supreme Court and also Chief Judge Herb Phipps of the Georgia Court of Appeals, the court on which I currently serve. And I am really honored. These are both mentors of mine and both very astute members of the judiciary and well-respected members of the judiciary in our State. I am also honored to have two very good friends. Richard Hyde, the chief investigator with the Georgia Judicial Qualifications Commission, is here with me today, as well as a friend of now probably 30 years from when I was first legislative aide to a Democrat Congressman from Georgia straight out of law school, my good friend Pete Robinson, who is a lawyer with the law firm of Troutman Sanders in Atlanta and also in DC. My parents passed when I was--my father approximately 30 years ago when I was 21. My mother passed a couple of years ago, but everything I have ever accomplished I am confident is because of the things that they taught me in the time I had with them. I have two wonderful in-laws, my wife's parents, Dr. Porky and Becky Haynes, and I know they are very proud and very excited for me on this occasion. I am honored to be here, Mr. Chairman, and I want to thank the many people that have helped me: my judge family on the court of appeals, I know many of them, including my staff, are watching via Webcast, and I am so very appreciative for their support. And with that, Mr. Chairman, I appreciate the opportunity to introduce my friends and family, and I welcome any questions. [The biographical information of Judge Boggs appears as a submission for the record.] Senator Blumenthal. Thanks, Judge Boggs. Mr. Cohen. STATEMENT OF MARK HOWARD COHEN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA Mr. Cohen. Thank you, Senator Blumenthal, Senator Grassley, and also thanks to Chairman Leahy and the rest of the Members of the Committee for making this Georgia Day at the Senate Judiciary Committee. We really do appreciate it. I want to thank President Obama for giving me the greatest honor that I have ever had in 34 years of practicing law--this nomination. I want to thank Senators Chambliss and Isakson for their warm remarks and also for their support throughout this process. There are several people I would like to introduce today. First and foremost, sitting behind me is my wife, my best friend, and the love of my life, Bonnie Cohen. Bonnie was a legal secretary for over 35 years, and despite having to work for lawyers her entire adult life, she agreed to marry me. And for that I will be forever grateful. I would not be sitting here today without her love and support, and we celebrate our 17th wedding anniversary next week. Also here today are two people who are like family members to Bonnie and me: Judge Stephanie Manis and Bob Manis. Judge Manis and I worked together at the Georgia Attorney General's Office for many years. She has been a mentor, a friend, and a role model, and someone whose career has been an inspiration to me throughout my professional career. Here today also with me are two young partners from my law firm, Troutman Sanders: Jaime Theriot and Kevin Meeks. Jaime and Kevin have worked with me on every major piece of litigation that I have handled at the firm. They are two of the finest young lawyers it has been my privilege to work with during my legal career. And I would not be sitting here without their support. Also here also for me as well as Judge Boggs is Pete Robinson, who is the managing partner of our Atlanta office, a former Democratic Majority Leader in the State Senate and a long-time friend. And two former colleagues of mine at the law firm who now work in Washington. Bill Arnold and Trenton Ward are also here, and I appreciate their attendance. There are a lot of people watching on the Web who are friends and colleagues of mine. I want to particularly mention one very special one, and that is one of the most beloved Georgia attorneys, Norman Underwood. When I came to Troutman Sanders 15 years ago, Norman became my mentor. He took me under his wing, and he made me a better lawyer. And if I am fortunate enough to be confirmed by this august body, I will be privileged to say that I got to practice law with Norman Underwood. And, finally, I would like to recognize my parents, Vivian and Irving Cohen. My parents were born in Brooklyn, New York. They are children of immigrants. They are children of the Great Depression. And because of their family situation, they were unable to achieve the education that they provided for their only son. My father enlisted in the United States Army during World War II. He was a disabled veteran, and he ran a small business. My mom was a secretary and worked in the home. Together, because of their support and sacrifice, I was able to go to college and law school and lead the life that led me to this moment before you today. I know if they were here they would be very proud. And with that, I welcome any of your questions. [The biographical information of Mr. Cohen appears as a submission for the record.] Senator Blumenthal. Thank you, Mr. Cohen. Ms. May. STATEMENT OF LEIGH MARTIN MAY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA Ms. May. Thank you, Senator Blumenthal, Ranking Member Grassley, and the rest of the Senate Judiciary Committee. Thank you for holding this hearing, and I am honored to be here today to answer your questions. I also want to thank Senators Chambliss and Isakson for their kind introduction and for their support throughout this process. I would like to thank President Obama for the great honor that he has given me in this nomination. It is something that I am very proud of, and it is the highest honor that I can think of achieving. I have quite a crowd of family here today, so I will try to go quickly. My husband, Gil May, is here. He is an architect in Atlanta, the love of my life, and the person that has been there for me every day throughout this process. I also have with me my 7-year-old son, Griffin May. He is a first grader at the Paideia School in Atlanta, Georgia, and has thoroughly enjoyed his trip to DC, especially the chance to get to go up in the Washington Monument yesterday as it reopened. So it has been a very special trip for him. My mother, Beatrice Williams, is here. She is in her final year as a first-grade teacher in Decatur County, Georgia. She has had a long career in public education and is very excited about her upcoming retirement. My in-laws are here, Dr. Jerrell and Lauren May, and they also have both retired from public education, and I am very happy to have them here today. I have my brother, sister-in-law, niece, and nephew. Stephen, Julie, Lucy, and Hollis May are here from Daphne, Alabama. I also have my law partner, Joel Wooten, and a daughter of one of my other law partners, Sandra Lynne Fryhofer, that are here for me today. I really have appreciated the support of my law firm, Butler Wooten and Fryhofer, that the partners and the other staff and attorneys in the firm have given me, and I am very proud to have Joel and Sandra Lynne here with me today. Thank you very much. [The biographical information of Ms. May appears as a submission for the record.] Senator Blumenthal. Thanks very much, Ms. May. Judge Ross. STATEMENT OF HON. ELEANOR LOUISE ROSS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA Judge Ross. Thank you, Chairman Blumenthal, Ranking Member Grassley. I would like to thank the entire Senate Judiciary Committee. Thank you to Senators Chambliss and Isakson for the warm introduction as well as the bipartisan efforts throughout this process. Thank you also, President Barack Obama, for the honor of this nomination. I, too, have some very special people with me. First, my husband of 13 years, fellow attorney Brian Ross, who is seated behind me. He is my rock and source of inspiration in all of my professional and personal endeavors. Our two daughters, 12-year-old 6th grader Briana Valerie Ross and 10-year-old 5th grader Leeann Danielle Ross. They graciously made the sacrifice to miss a day of school to attend. I thank them and their teachers for allowing them to do so with the understanding that they will be making up missed school work. Speaking of teachers, I also have behind me my mother, Otelia Barnwell, who is a retired public school teacher from right here, the D.C. Public School System. Also, my siblings are present: my sister, Dr. Valerie Barnwell, and my brother, fellow attorney George Otis Barnwell. My father, George Miller Barnwell, also was a teacher. He passed away when I was 8. He is with me here in spirit, as he always has been, and today I have with me a person who has served as a father figure for my entire life, that is, my uncle, Jim Clarke. And I also have with me my two beautiful teenage nieces, Savannah and Arianne Barnwell. I would also like to acknowledge my mother-in-law, Shirley Covington, who also is a retired public school teacher as well as principal. She could not make the trip to DC today, but she supports me from her home in Columbus. And, finally, I would like to acknowledge my colleagues and my exceptional staff at the DeKalb State Court. They are keeping things running smoothly while I am here in Washington. Thank you, and I welcome your questions. [The biographical information of Judge Ross appears as a submission for the record.] Senator Blumenthal. Thank you very, very much to all of you for your opening statements and, most important, for your records of public service. And I want to say again how important these hearings and this process are. I want to welcome Chief Justice Thompson, Chief Judge Phipps. You honor us by your presence here today. Sorry you had a bit of difficulty getting here, but you were mentioned in absentia by Senators Isakson and Chambliss. Like you, these individuals have performed a great deal of public service over the course of your careers already. The decisions we make here really will be to put you in a place where for many people seeking justice you will be the last person making a decision. Even though there may be a right of appeal to the court of appeals, you will be the source of justice for them. And so this decision for us is immensely important, and we are going to approach it, I think, with the close scrutiny that it deserves in every instance. I would like to begin, Judge Boggs, with some questions to you, if I may. As I look through the responses to the Committee's questionnaire, I noted that there were no texts of remarks, no speech drafts, notes, anything in writing of that kind. Over the course of your very long career in public life, did you never deliver a prepared speech? Did you never submit, for example, to the Judiciary Committee when you served in the State legislature any prepared remarks? Judge Boggs. Well, thank you, Senator. It was not the practice of myself while I was serving for the 4 years in the General Assembly to speak regularly before committees. In fact, the only occasions I had to do that were on bills that I had authored. I never spoke to any Committee of the House or Senate on any bill that I did not author other than a bill I was asked to carry by the Secretary of State, which meant that I had to testify before the Senate on that matter. It is not the practice of the General Assembly then and I do not think now that witnesses submit any written comments or testimony, and indeed that was not my practice. I typically spoke extemporaneously and generally spoke from the bills, the text of the bills that I was presenting. Senator Blumenthal. On some of the videos, I think, that are of your service in the legislature, you seemed to be reading from something. Did you keep none of those texts? Judge Boggs. I was reading from the text of the bills that I was presenting at the time. I was not speaking about support or--I was simply asking legislators to support the bill. But what I was reading from and what I always took to the well on those limited occasions was the text of the bill. Senator Blumenthal. And on the issue, for example, of women's reproductive rights, I know that you have spoken passionately about your views on that topic. On rights of women to seek reproductive health care, I know that you have stated your opposition to abortion. You prepared no remarks on any occasions that you delivered? Judge Boggs. Senator, to my knowledge, I have never given any public comments on my position on reproductive rights. I have cosponsored some bills in the General Assembly. To my knowledge, I also voted on a couple of amendments on the floor of the House that I did not author and had no authorship in. But to my knowledge, I have never given any speeches concerning reproductive rights. I know this, Senator: I never authored any of those bills. Even the ones I cosponsored, I had no role in drafting that legislation. Senator Blumenthal. And I noticed also, as you well know, that on April 10, you supplemented your responses to the questionnaire to this Committee with additional materials, some of them dealing with the controversial issues that may be of interest to my colleagues. Can you assure us that there are no additional materials that are relevant to particularly questions 12c and 12d of the questionnaire? Judge Boggs. Yes, sir, Senator. I can assure you of that. I appreciate the Committee's indulgence and opportunity to submit additional submissions with respect to my original responses to questions 12c and 12d. I respectfully suggest that the effort that I went to to supply the information in my original questionnaire was quite exhaustive. I did all of the notable searches on Internet searches that were available. The newspapers that covered the area that I served as a legislator are not searchable by the public in any form other than by review of the hard copies. In addition, I reviewed applications and questionnaires of nominees who had had prior legislative service and attempted to mirror what they had done with respect to their submissions. I did not note that any of those nominees had ever submitted a listing of bills that they had cosponsored. That is certainly a matter of public record, and I could have easily provided it. But with respect to question 12c, which asked for my public statements on matters of public policy, I did not view bills that I cosponsored, that I did not author, that I had no interest in other than cosponsoring, that I had nothing to do with the drafting of, to be my public statements. And so in that regard, I did exhaust additional resources in order to provide this Committee with everything that was available. That meant going to Georgia Public Broadcasting, who at the time I served in the legislature made videos of legislative sessions. The information they had from 2001 to 2004 was old. It was on servers that were not searchable. It was in a format that was not searchable, that had to be decoded and put into a searchable format. It took me roughly 6 weeks of almost daily contact and personal visits to Georgia Public Broadcasting to retrieve the videos that I did supply. With respect to question 12c, that dealt with public speeches I might have given while I was a legislator from 2001 to 2004. I have been a judge both on the trial court bench and the appellate court bench for 10 years. On advice of the State Bar of Georgia, I destroyed my files from my old law office, which would have possibly contained references of when I spoke to certain civic organizations, dates, and to whom I spoke. But because that information and media coverage of that was not available, I took 5 days, I traveled 250 miles to my home town, and I reviewed 515 newspapers, roughly 8,000 pages, personally, and then hired someone to review on the internal programming system of our daily newspaper their data in order to provide the additional submissions. And I am very appreciative for the opportunity to have done that. Senator Blumenthal. I appreciate that explanation. I would remind you, I know I do not need to remind you, that some of my colleagues, particularly on this side of the aisle, have found the failure to be completely forthcoming and frank with this Committee in terms of providing materials as a reason to disqualify, in fact, put in jeopardy the nomination of a judicial nominee. So I would urge you, if there are any other materials that are discernible in any way, that you provide them as quickly as possible. Judge Boggs. Absolutely, Senator. Senator Blumenthal. Let me go to some remarks and actions that you made in the course of your career, if I may. When you were a candidate for the Georgia Superior Court, you spoke at a candidate forum. You told the audience at that time, and I am quoting: ``I am proud of my record. You do not have to guess where I stand. I oppose same-sex marriage.'' And you went on: ``I have a record that tells you exactly what I stand for.'' Wouldn't your co-authorship of those amendments in the Georgia Legislature dealing with reproductive rights and a woman's right to choose be indicative of how you will serve as a judge on the district court in Georgia if you are confirmed? Judge Boggs. Thank you, Senator, for the question. I did make the comments that you refer to. Later in that same speech, I referred to my respect for the separation of powers and the lawmaking authority that is vested in the legislature and that judges should not be policymakers. I have maintained that position for the entirety of my judicial career. However, I agree that the comments that I made probably gave the wrong impression to the audience to whom I was speaking, particularly with respect to the job that I was seeking. I should have done a better job of delineating the roles, the different roles and the markedly different roles, between being a legislator and being a judge. I was a legislator at the time I made those comments, but I was seeking the office of judge. However, I think that my record, my 10-year record of disposing of roughly 14,000 cases demonstrates unequivocally that I have never allowed personal views I may have on an issue to affect how I analyze issues or how I decide cases. Senator Blumenthal. Have any of those cases dealt with reproductive rights or a woman's right to choose? Judge Boggs. I think on my time on the Georgia Court of Appeals I have dealt with one case on my panel. It was not a case that I authored, but one case that dealt with Georgia's current statute on a minor having to receive parental consent in order to receive an abortion. It was on appeal from a petition to a juvenile court. Other than that, no. It is true that throughout my judicial career both as a trial court judge and an appellate court judge that I have rarely dealt with issues of those constitutional magnitude. Senator Blumenthal. So other than that one case, to know where you stand on that issue of reproductive rights or a woman's right to choose, we would have to go back to your actions in the Georgia State Legislature? Judge Boggs. I do not necessarily agree, Senator. I think that the best evidence of the type of judge I will be is the record of the type of judge I have been. I do not think that my legislative record that is over a decade old is indicative of what type of judge I might be on the Federal district court. I would point to my record as a trial judge, disposing of 14,000 cases, dealing with civil cases and criminal cases, ruling for plaintiffs, ruling for defendants, ruling for the State, ruling against the State. I think that is the best evidence of the type of judge I would be. Senator Blumenthal. Where do you stand now on reproductive rights or a woman's right to choose? Judge Boggs. Senator, my personal opinion on matters that might come before the court would be--it would be, I think, inappropriate and a violation of the Code of Judicial Conduct of Georgia that I currently am bound by to state any position on those matters. But I can state unequivocally that my personal position on that matter or any other issue is irrelevant to how I have decided cases for the past 10 years, how I have analyzed issues, and I am committed to following the rule of law, the doctrine of stare decisis, and always doing that if I am fortunate enough to be confirmed. Senator Blumenthal. And the Constitution's right to privacy included? Judge Boggs. Absolutely. Senator Blumenthal. In your response to questionnaires before this Committee, you said that you are a ``strict constructionist.'' Is that your general philosophy? Judge Boggs. I think at the time I made those comments, which was upon my transferring from the superior court to the court of appeals, I made those comments to a reporter. What I intended to convey was my fidelity to the rule of law and my fidelity to the limited role of a judge in our democracy, and intended to convey my respect for the limited role of a judge, and that is to not decide cases based on public opinion, to not decide cases based on public clamor, but to decide cases based on the faithfulness to the rule of law and the doctrine of stare decisis, which I believe my record demonstrates I have done. Senator Blumenthal. Normally, a strict constructionist is one who looks very specifically, and judges would say faithfully, to the text of the Constitution and the philosophy is to avoid going beyond what is actually written in the text of the Constitution. Is that a fair description of strict---- Judge Boggs. It is my understanding of strict constructionism. Yes, sir, it is a form of constitutional interpretation and analysis. Senator Blumenthal. In 2004, you said that the right of privacy is not ``in the context or in the text of the Constitution.'' Judge Boggs. I am not familiar with having said that, Senator. If you--I am happy to respond later if I can find out where that quote might come from. I am not familiar with having said that. Senator Blumenthal. Well, you said it in 2004. It was a while ago. But let me give you a chance to explain now. Judge Boggs. Sure. Senator Blumenthal. If the right of privacy is not specifically delineated or described in the text of the Constitution, is it still equally valid as the rule of law? Judge Boggs. Yes, sir, I believe that the easy answer to that question is that I would base every decision on rights of privacy, fundamental rights, and use a constitutional interpretation model that is based on precedents of the U.S. Supreme Court and the Eleventh Circuit. Senator Blumenthal. And so you would not permit or allow your view of the Constitution as a strict constructionist to interfere in any way with carrying out the rights of individuals, the rights of privacy to individuals who may come before your court? Judge Boggs. Absolutely not, Senator. Senator Blumenthal. Let me ask you about another part of your record relevant to this same issue. You supported legislation that would require doctors to report the number of abortions they perform. Would you tell us why you supported that legislation? Don't you think it was ill advised? Judge Boggs. Well, Senator, let me respond this way: The legislation that you refer to was an amendment made on the floor of the House of Representatives. It was not an amendment that I drafted. It was not an amendment that I was familiar with. It came up on the floor of the House in the routine of handling the business of the legislature for that day. I supported measures like that and including that because those issues were very important to the people that I represented. My constituents as a State legislator were 38,000 citizens in one county in southeast Georgia for the first 2 years that I served. The district grew a little larger than that. But that district is a very conservative and a very pro- life constituency. I believed that it was the obligation of a legislator to vote--listen to and vote the will of their constituency. Those issues were very important to my constituents, and that is why I supported that floor amendment. Senator Blumenthal. That amendment came within a few years after and before attacks on doctors who provided abortion services. Would you agree with me that it was a mistake to support that kind of amendment? Judge Boggs. In light of what I have subsequently learned, yes, sir, I do not think that it would be appropriate to be listing the names of doctors that perform abortions within what was then the Georgia Patient Right to Know Act, which dealt predominantly with litigation that doctors had been involved with and the ability of patients to see that information. Senator Blumenthal. Thank you. My time has expired, and I would turn to Ranking Member Grassley. Senator Grassley. It might surprise you, but I am going to ask you a lot of questions, and I am going to ask similar questions of what you did. I find no offense with your approach. And I hope the rest of you do not feel left out. [Laughter.] Senator Grassley. You served the past 10 years as--again, to Judge Boggs, you served the past 10 years as an elected State court judge, and I think you verified that already. Judge Boggs. Yes, sir. Senator Grassley. In this election did you run under any particular party? Judge Boggs. No, sir. Georgia's judges are elected nonpartisan at the levels that I ran. Senator Grassley. Okay. So your role as a judge has been a nonpolitical, nonpartisan. Is that correct? Judge Boggs. Entirely. Yes, sir. Senator Grassley. In 2001, as you have already said, you were elected as a Democrat to the Georgia General Assembly, right? Judge Boggs. That is correct. Senator Grassley. You have been criticized by some groups for some of the policy positions you took as a legislator. For instance, as a legislator, you had a pro-life voting record. You supported traditional marriage. I would ask you a couple questions. First I am going to read something that you said during Senate Resolution 595. This resolution recognizes marriage as a union between a man and a woman. In the statement on the resolution, you said, ``It is my opinion both as a Christian and as a lawyer and as a member of this House that it is our opportunity to stand up in support of this resolution.'' So please explain what you meant by this statement. Judge Boggs. I clearly meant, Senator, that my personal opinion was at the time, over a decade ago, that I was in support of a proposed constitutional amendment that would have banned same-sex marriage. My position on that, Senator, may or may not have changed since that time, as many people's have over the last decade. Moreover, my position on that, as reflected by those personal comments in 2004, have never had any import whatsoever in how I decided cases or how I analyzed issues, both as a trial court judge and an appellate court judge. Senator Grassley. Is it fair to say that your Christian faith informed your policy positions as a legislator? Judge Boggs. Yes, sir. Senator Grassley. By contrast, how does your Christian faith affect you and your decisionmaking process as a judge? Judge Boggs. It never has interfered with my decisionmaking process whatsoever, Senator. Senator Grassley. Is there anything in your personal view, whether religious or otherwise, that would make it impossible for you to apply the law as a Federal judge, even if you personally disagreed with it? Judge Boggs. No, sir. Senator Grassley. You have also said, ``While serving you at the Georgia House of Representatives, I was proud to represent you. I tried to base all my decisions on commonsense, conservative values that are based on the fact that I was raised in a Christian home, and that has given me true family values.'' Again, do you hold any personal or religious views that would make it impossible for you to apply the law as a Federal judge even if you personally disagreed with it? Judge Boggs. Absolutely not, Senator. Senator Grassley. Further, as I mentioned, you have been criticized for your legislative record with respect to abortion. During your time in the legislature, you cosponsored bills that would help encourage women to consider adoption and a bill that required minors to be accompanied by a parent or guardian before getting an abortion. Three questions in regard to that. There may be some concern that your personal views on abortion may influence your ability to follow precedent as a judge. What is your commitment to following precedent? I think you have made that very clear. I do not think you need to answer that. Please describe what you see to be the differences in responsibility as a policymaker and a judge regarding the topic of abortion. I think you made that very clear in your answer to Senator Blumenthal. Do you hold any views regarding abortion, religious or otherwise, that would make you unable to discharge your duties faithfully as a U.S. district judge? Judge Boggs. No, sir, I do not. Senator Grassley. You have many years of experience as a judge. Have there been any times where you decided a case based on your policy preferences or desired outcome rather than following the law or applicable precedent? Judge Boggs. That has never happened, Senator, and you have my commitment that, if I am fortunate enough to be confirmed, that would never happen. Senator Grassley. Mr. Cohen, you have been involved in litigation of the Georgia voter ID law. I have three questions in regard to that. Can you describe who you were representing in these cases and how you came to be involved in them? Mr. Cohen. Yes, Senator. Based on my experience in the Georgia Attorney General's Office, which was over 13 years, when I went into private practice, then Attorney General Thurbert Baker hired me to represent the State and its agencies in a variety of high-profile litigation. That varied from defending the University of Georgia's affirmative action program to defending a redistricting plan passed by a predominantly Democratic General Assembly to defending Georgia's photo ID law. In all of those cases, I was never involved in the enactment of any of those policies or legislation. I never was a lobbyist for any group either advocating for or against the legislation. I was hired just like any other lawyer is hired, and that is, to represent their client and advocate their position in court. Senator Grassley. If you were confirmed, how would your experience with voter ID laws influence your decisionmaking process as a judge if a voter ID case were to come before you? Mr. Cohen. It would not make any--it would not implicate my decisionmaking at all. I would be bound by the decisions of the U.S. Supreme Court, which in this case is the Crawford v. Marion County case in the Eleventh Circuit Court of Appeals in resolving that issue. Senator Grassley. Some have claimed that voter ID laws generally--and these would be like laws you have defended-- exist ``for no other reason than to deny African Americans the right to vote.'' Do you agree with that statement? Mr. Cohen. I think the case law in this area has come down, depending on the State it was brought in, in different ways. In Georgia, the evidence that was presented in our case did not lead the court to conclude that there was a denial of the right to vote. I am aware that in other States, because of different factual circumstances that were presented in those States and sometimes different statutes and different State constitutional provisions, the decision came out differently. So I think in any case involving a challenge to a photo ID law, it depends on the facts that are presented and the specific statute that is being reviewed. Senator Grassley. You already made reference to affirmative action cases you have been involved in. In Johnson v. Board of Regents, a class of students who were denied admission challenged the university system awarding points to applicants based on diversity. You defended the university's point system. The Eleventh Circuit found that the university's system was not narrowly tailored and, hence, unconstitutional. Tell us about the case and your role in it. Who were you representing? Mr. Cohen. I was representing the Board of Regents at the University of Georgia, again, hired by Attorney General Thurbert Baker. At that time that was before the Supreme Court's decisions in Grutter and Gratz. So the University of Georgia was implementing a points program very much like the University of Michigan was in its undergraduate institution. Both cases kind of were appealed at the same time. The Michigan case got to the U.S. Supreme Court, and our case was settled before that time. Senator Grassley. If confirmed, this ruling will be binding precedent over your court. What assurances can you give this Committee that you will follow it and any other precedent even if you may not personally agree with it? Mr. Cohen. Well, Senator, as a district judge, an Article III judge, I am bound by the decisions of the U.S. Supreme Court, and in the issue of affirmative action in higher education, that would currently be the Fisher case, the Gratz case, the Grutter case, and any other decision that might be issued. Senator Grassley. Ms. Abrams, I am going to quote, as I often do, Justice Scalia on living Constitution theory, who said: ``The risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views.'' Do you believe that--forget that Scalia said that. Just think of the concept. [Laughter.] Senator Grassley. Well, I respect Justice Scalia, but I do not want him to be the focal point here. Do you believe that judges should consider evolving standards when interpreting the Constitution? Ms. Abrams. Thank you, Senator. I believe that a judge, and particularly a district court judge, is bound by the rule of law, bound by precedent, and in my case it would be the precedent--if I am so fortunate as to be confirmed, it would be the precedent of the Supreme Court and the precedent of the Eleventh Circuit, and that, and nothing else, would guide my decisions. Senator Grassley. Do you believe it is ever appropriate for a Federal judge to incorporate his or her own views when interpreting the Constitution? Ms. Abrams. No, Your--no, Senator. Senator Grassley. Because there was a split in the ABA rating of you, while a majority of the Standing Committee on the Judiciary rated you a qualified, a minority found the opposite. And the attachments you provided in response to questions to your Senate questionnaire provided very little in the way of examples of legal writing. Is there anything further that you could share with the Committee to ease any doubts that may exist about whether your experience has prepared you for a lifetime appointment? Ms. Abrams. Thank you again, Senator. I have practiced both, in Federal court, civil law as well as criminal law. And in that capacity, I have had a strong motions practice, both written and oral, and appellate practice. In my last almost 4 years at the U.S. Attorney's Office, I have handled criminal cases from their very inception through sentencing, including trials, both jury trials and the equivalent of bench trials. I also handled my own habeas motions and have argued before the Eleventh Circuit Court of Appeals. In addition, after graduation from Yale Law School, I served as a clerk to a district judge, and I believe that firsthand experience has made me--helped me understand what the day-to-day obligations of a district court judge. While I understand that there will, in fact, be a steep learning curve, I have spoken to all of the judges of the Middle District of Georgia who I will work with if I am so fortunate as to be confirmed. And I know that they will support me in getting up to speed, and I think that my ability to study--and I have studied all of the rules and the bench book--and my hard work, my hard work ethic will help me do my duty as a district court judge if I am confirmed. Senator Grassley. I am going to yield. I am going to assume you two will not be here. Go ahead. Senator Blumenthal. Thank you, Senator Grassley. Just for the information of my colleagues, we are scheduled to have a vote I think at 11:10. I am going to turn the gavel over to Senator Franken when that happens, and he and I will trade places, and we will continue the hearing. I am going to turn to Senator Durbin now, but before I do, Judge Boggs, you mentioned a case that was decided while you were a judge, perhaps on the Georgia appellate court, dealing with the State's parental notification. I am not aware of that case. Could you provide the name and the opinion, if there was one, to the Committee? Judge Boggs. I may have misspoken. What I was referring to was that the parental notification law has been the law in Georgia since 1987, well before I became a legislator. My actions in the General Assembly--I am not sure of the year, but between 2001 and 2004--to amend that bill in two specific ways was to amend current statute. I do not know of any case--the case that you are referring to would be the one that was on my panel at the court of appeals? Senator Blumenthal. Yes. Judge Boggs. Oh, absolutely. Certainly, Senator. Senator Blumenthal. If you could provide the name and the opinion, if there was one, and any other details about that case. Judge Boggs. Certainly. Senator Blumenthal. Appreciate it. Thank you. Senator Grassley. Senator Grassley. I am going to submit questions in writing. Senator Blumenthal. And we will have--the record will stay open for all of us for a week after this hearing to submit questions in writing, but that one in particular, if you could respond to, I would appreciate it. Thank you. Judge Boggs. Yes. Thank you, Senator. Senator Blumenthal. Thank you. [The information referred to appear as submissions for the record.] Senator Blumenthal. Senator Durbin. Senator Durbin. Thank you, Mr. Chairman. And at the outset let me say to all nominees, thank you for being here today, and special thanks should be given to your two Senators, Senators Isakson and Chambliss, who have worked very hard for this moment and have buttonholed each and every one of us about your nominations. They think very highly of you, and that commends all of you to our consideration, positive consideration. I do have a few questions, Judge Boggs, I would like to ask you because you appear to have served in the Georgia General Assembly at a very controversial moment when your State was debating its State flag. And the question was whether or not the flag would be changed and no longer display the Confederate X battle symbol. You were embroiled in that debate, and I ask you this question: Do you believe that Confederate flag issue had anything to do with the issue of race? Judge Boggs. You know, when that flag was passed in 1956, Senator, there was no legislative history. I was not a flag historian then, nor am I now. But in looking back on that issue and preparing for today, I know that some argue that race, particularly the--it was passed in reaction to the Brown decision from the U.S. Supreme Court in 1956. I have no reason to dispute that, although there are arguments on the other side as well as to what the motivation was for the bill originally. Senator Durbin. Beyond the motivation for the original form of the flag, when you were serving in the General Assembly and the debate was underway, and I believe overwhelmingly the African American legislators opposed that symbol in the flag, did that lead you to believe that that debate had anything to do with the issue of race in your time? Judge Boggs. Yes, sir. Senator Durbin. And what was your feeling? Judge Boggs. I was offended by the flag, Senator. At the time that I made that vote in 2001, I was a freshman legislator. I was in my 17th day of service. I was very respectful of the opinions that a majority of the African American community in my State had toward that flag. It was not only a symbol of a reminder of the Civil War and a horrific tragedy and horrible time in American history, a reminder of the institution of slavery, but it was also, I think, even more predominant, the more contemporary uses of that flag by organizations that espoused hate, that espoused oppression, that spouted over racism. I found that one of the most challenging things of being a legislator was deciding when to vote the will of my constituents and when to vote the will of myself and my own conscience. It was something that I have known other legislators to struggle with. I struggled with it regularly, on that issue particularly. The overwhelming majority of the constituents in my one county that I represented, which likewise contained a minority population that I was not ignorant of, overwhelmingly, though, those constituents desired that Georgians be permitted an opportunity to vote on whether Georgia changed the flag, and that is why I cast the vote the way I did. However, I am glad the vote--I am glad the flag was changed. It reflected something that I thought Georgia could do better with, quite frankly, Senator. Senator Durbin. Since you understood that the debate in your time dealt with issues that at least brought up echoes of race problems and slavery, let me ask you this: When a new compromise design was proposed in 2003 that removed the Confederate X but echoed the Confederate Stars and Bars flag, this design was supported by African American Democrats, and you voted against it. Why? Judge Boggs. Yes, sir. For the same reasons. The overwhelming majority of my constituents wanted a choice between the 1956 flag and the current flag. Intervening between the vote you just mentioned and my original vote was yet another opportunity to vote for a referendum on the flag, and I voted for that one. That would have afforded Georgians an opportunity to vote. However, I reiterate with the utmost respect, looking back on that vote, at the time I cast that vote, it was a very difficult decision to decide whether to vote my conscience, which was reflective of the will of the people in my community--I am sorry, the will of the constituents in my community or vote my own conscience. Terribly agonizing. I could not have been more respectful of the opinions of the people that desired that that flag change. And I am glad the flag did change. Senator Durbin. Judge Boggs, each year for over 10 years, a Congressman from your State, John Lewis, organizes a civil rights pilgrimage, inviting members of both political parties to come down and to personally witness some of the scenes of the civil rights struggles of the 1960s. And I was honored to be invited 1 year, and as fate would have it, walked over the bridge at Selma with Congressman Lewis in the early morning Sunday hours, and he pointed out the spot where he was beaten unconscious and clubbed down by troopers on that march to Selma, Alabama. And he said that--from Selma, Alabama. And he said to me, ``You know, there are many people who are acknowledged as heroes, and I should not be one of them.'' He said, ``I was just here doing what I thought was right.'' But there was one in particular who hardly ever gets credit, and his name is Frank Johnson. Frank Johnson was a U.S. Federal district court judge, the position that you five aspire to, in the Middle District of Alabama. He not only ruled that the statue that allowed putting Rosa Parks in the back of the bus was wrong, he went on to rule that that Selma march would be allowed. For that, his mother's home was firebombed. He was basically invited away from polite society in his part of Alabama, but became an icon to many of us in terms of courage on the bench. I understand the role of a legislator and a politician, trying to measure your constituents and what they want against what you believe is right. And sometimes, sadly, they come in conflict. Obviously, Judge Johnson decided, sitting on that Federal court, that even though he would be ostracized by many of his friends, he would do what he felt was right. I have asked you a lot of questions about when you were a State representative, and you have basically said, ``I have reflected the way my people felt.'' So now how do you view that issue of race when you have an opportunity to serve on the district court here? Judge Boggs. Thank you, Senator, for the question. First let me say I have the utmost respect for Congressman Lewis. I know him. I respect his career. While I know he might have been critical of me during this process, I do not take any affront to that. I deserve that criticism based on that vote. I have nothing but the utmost respect for Congressman Lewis and for all of those, including my colleague that sits behind me, Judge Herb Phipps, who fought through years and decades of racism and oppression and became the second juvenile court--African American juvenile court judge in our State. So my vote was never intended to be disrespectful. It was never intended to fail to acknowledge the sacrifices that an enormous number of people made, from Dr. King to others, for the struggle that ultimately succeeded in equality. My vote was never intended to reflect that. I believe as a judge that everyone that comes before me should be treated equally. I believe that my record as both a trial court judge and as an appellate court judge reflects my faithfulness to that. I do not think anyone can disprove if someone is accusing someone of being a racist. How do you disprove that? I think the best evidence I would have that the people that know me best do not believe that in me is that after that vote, I had a primary challenge in the Democratic primary, and every African American elected official in my community supported me, including the mayor, city and county commissioners. They grew up with me. I went to school with them or their children in the public school systems. They know me. They know that that vote was not indicative of any bias I hold toward anyone. In that election I received 90 percent of the vote to be returned to the General Assembly for a second term. And these same groups and these same people overwhelmingly supported me with 80 percent of the vote when I ran for superior court judge, and I think that is the best evidence that I hold no bias, Senator. Senator Durbin. Thank you, Judge Boggs. Thank you, Mr. Chairman. Senator Blumenthal. Thank you, Senator Durbin. Senator Lee. Senator Lee. Thank you, Mr. Chairman. Thanks to all of you for your willingness to be here and your willingness to serve. Ms. Abrams, let us start with you. I see most of your practice throughout your career has been in civil litigation. Is that right? Ms. Abrams. Yes. Senator Lee. Although less so in the U.S. Attorney's Office. Ms. Abrams. Definitely. Senator Lee. That has given you a good flavor for both of them, both of which will be important components of your caseload, should you be confirmed. When you approach a civil case--and, you know, as you know, a lot of civil cases are decided on dispositive motions, and when they are not decided on dispositive motions, there is usually a dispositive motion that is made at some point or another. When you review a dispositive motion, whether it is a motion to dismiss or a motion for summary judgment, is it appropriate for a judge to err on the side of granting or denying a dispositive motion? In other words, there are some judges occasionally that will say, at least privately, ``I would rather err on the side of giving the plaintiff his or her day in court, a trial.'' Do you lean in either direction? In other words, is it just as bad to grant a dispositive motion where it is not warranted as it is to deny one where it is? Is either one worse than the other? Ms. Abrams. Thank you, Senator. I do not believe that one is either worse than the other or that it would be appropriate for me to hold a belief as to that. I think that every case that comes before me, if I am confirmed, should get the same treatment, and that is, a fair and impartial application of the law to the facts of that particular case. Senator Lee. Okay. So you would not have any predilection one way or another toward granting or denying them. You are going to call them as you see them based on the issues brought before you. Ms. Abrams. Yes, Senator. Senator Lee. I sometimes see a dangerous tendency in the courts in that sometimes we can end up with trial by attrition where those--you know, it is easier to deny a motion for summary judgment than it is to grant one in some ways. And in some ways it involves less risk. You do not have to write a lengthy opinion when denying one. It is often easier to write the opinion. It is not immediately appealable in most circumstances, and so it is often easier to just say, well, I will deny this one and see what happens on appeal. Would you tend to agree with that? Ms. Abrams. I think that that certainly does happen. I fortunately was trained by a judge who believed that we had to get it right, and when I was a clerk, I did, in fact, deny a number of motions that, in effect, ended cases. But that was because the law, the applicable law, dictated that that was how a case should be handled. And I hope that I learned enough from Judge Garbis and that I would, in fact, fairly and impartially apply the law to the facts of each case as it comes before me. Senator Lee. Judge Garbis is still on the bench, right? Ms. Abrams. Yes, he is. Senator Lee. So Judge Garbis is still available if you ever need to---- Ms. Abrams. He most certainly is. Senator Lee. That is good. Judge Ross, you are already a judge. Do you agree with what Ms. Abrams has said? Do you disagree with any of this? Judge Ross. I agree with Ms. Abrams that I would have no predilection either way, and also I can say that having served as a State court judge, I have never ruled on a motion for summary judgment just at the point of being cautious. Now, I have taken longer to rule on some of them than on other issues because, like Ms. Abrams said, I wanted to get it right. And I am fortunate enough to say that none of the rulings that I have rendered on motions for summary judgment have gotten reversed with the exception of one portion of one ruling based on attorneys' fees. And I did agree with the court of appeals that I should have analyzed it slightly differently. Senator Lee. Okay. Ms. May, do you have any particular judicial philosophy? How would you describe or define your judicial philosophy? Ms. May. Thank you, Senator Lee. My judicial philosophy would be to apply the law fairly and equally to all people, if I am confirmed as a district court judge, that would appear in front of me. I think it is very important for judges, as Ms. Abrams said, to get it right, and that means following the applicable Supreme Court and Eleventh Circuit precedent to the letter and not allowing my own personal opinions to get in the way of stare decisis and applying the applicable law. I also think it is important for judges to treat both the parties and the attorneys with respect and to listen to all sides to an argument to make sure that as a judge I would understand the arguments of the parties; and also when issuing orders or ruling on specific issues, I also believe it is very important for a judge to be clear and let the parties know exactly what the ruling is so that they can apply that to the rest of the case and move forward. Senator Lee. Thank you. Judge Boggs, you commented a few minutes ago about your inclination as a legislator to try to figure out, you know, what your constituents would prefer and that that can sometimes put a legislator in a difficult position. Does any of that apply to you as a judge, either as a State judge or would it apply to you as a Federal judge if you were confirmed? Judge Boggs. Thank you, Senator. No, it does not apply, and that is a very comforting part about being a judge. I think I am more suited to be a judge than I was a legislator, quite honestly. There is a lot of comfort in the rule of law. There-- -- Senator Lee. Are you saying you would look good in the robe? [Laughter.] Judge Boggs. I am confident not. You know, the gauging of public sentiment on any issue as a legislator is always difficult. The political implications of votes are difficult. The considerations that partisan politicians have to make day in and day out are difficult decisions. The decisions judges make are likewise difficult, but the fortunate part about the faithfulness to the rule of law is you do not stick your finger in the wind every time you decide a case to decide what is popular and what is public will and what is the general direction of the public on this issue. I am very comforted in knowing that if you are faithful to the rule of law, if you are faithful to apply precedent to every case, and you do not interject your personal opinions, while it is true you may make some unpopular decisions, popularity is not the test of whether justice has been done. Senator Lee. Would that apply even when you are being asked to make a ruling that is going to be strongly against the public will? I mean, it is not just that it might not be the most popular ruling, but a ruling that, in the eyes of the public, might seem harsh, might seem unfair, might go against a very popular party before you, perhaps a very sympathetic plaintiff or defendant? Judge Boggs. Yes, Senator, I think indeed judges that are faithful to the law are going to make unpopular decisions on a regular basis. The comforting part about being a judge is that the law should prevail in each and every case. Sympathy for the party, empathy for the party has no role. The gender or role or sexual orientation of a party has no role in deciding how you issue a decision. It is much more difficult when you are, I think, a partisan legislator to deal with those issues because, quite frankly, I think most of you all have districts in your States, your entire States, and I did as a legislator, where your entirety of your constituency do not always agree or rarely agree on everything. Fortunately, as a judge, you are not concerned with those issues. Senator Lee. Okay. Thank you. I see my time has expired. Thank you, Mr. Chairman. Senator Blumenthal. Thank you, Senator Lee. Senator Klobuchar. Senator Klobuchar. Thank you very much. Thank you to all of the nominees. This is a very special day, and I can see you have a lot of happy family members back there. I was going to ask some questions of Mr. Boggs. I know, Mr. Boggs, you were a judge--for how long? Judge Boggs. Ten years now, Senator. Senator Klobuchar. Ten years, okay. And obviously there is a lot of understandable questions about the positions that you took as a candidate and in the legislature on choice and civil rights and marriage equality. Did you rule on any of those cases when you were a judge, cases involving those issues? Judge Boggs. As a trial court judge in Georgia's highest level of trial courts, I did not have jurisdiction to rule on constitutional questions, if that is your question. As a judge on the intermediate appellate court in Georgia for the last 2\1/2\years, we have limited constitutional jurisdiction. Specifically, we only deal with the Constitution as applied and whether it was applied in an unconstitutional fashion. But jurisdiction in constitutional cases presides with our Supreme Court. Senator Klobuchar. Thank you. Could you talk about your oval judicial philosophy, how your personal views have shaped that philosophy? Judge Boggs. I do not know, Senator, that my personal views have shaped my philosophy. My experiential views as having been a judge for 10 years has shaped my philosophy. I try to emulate characteristics that I see in other judges that I value. My general judicial philosophy is that judges should be faithful to the law. They should be faithful to the doctrine of stare decisis. They should understand the limited role of the judiciary, and they should not be policymakers. In addition, I think it is imperative that judges are continually treating every party that appears in front of them equally before the law. That builds public confidence in a fair and impartial judicial system, which I think is very important. Senator Klobuchar. And in your opinion, how strongly should judges bind themselves to the doctrine of stare decisis? Judge Boggs. Well, I think the doctrine of stare decisis should bind all judges. It bound me as a trial court judge. I was bound by the decisions of the court I now serve on and also the Supreme Court of Georgia. I think as an appellate court judge I am bound obviously by the decisions of the Supreme Court of Georgia. And if I am fortunate enough to be confirmed, I would be bound and follow all of the decisions of the Supreme Court, even on those issues that you discussed. Senator Klobuchar. Well, the Supreme Court ruled nearly 50 years ago in the Griswold and Eisenstat cases about privacy rights and access to contraception. Do you view these cases as settled law? Judge Boggs. I do, and I would follow that precedent if I were fortunate enough to be confirmed. Senator Klobuchar. I am concerned about this amendment. I know there is a lot of background here, and I have read it all, but one of the things that really stuck out to me as someone who is a former prosecutor dealing with public safety issues was the amendment that you supported in the Georgia State Legislature--and I think Senator Blumenthal had asked about this. I had to leave for another hearing, but I had some more questions on it--that would have required posting on the Internet about the number of medical procedures that doctors have performed having to do with terminating a pregnancy. I think there could clearly be public safety implications for these doctors if you put all this detailed information about them online. And I think you can see it in other areas as well, and I think we have certainly seen lives being taken from these doctors that terminate pregnancies. And we do not put this kind of information online for other procedures in other medical areas. My first question is if your views on this issue are still the same. Judge Boggs. Well, I would be hesitant to give you my views on that issue inasmuch as that may come before me as a judge, but I would tell you, as I did Senator Blumenthal, that that was a floor amendment. I did not have any idea it was coming. I did not have anything to do with the drafting of it. The author of that amendment on the floor of the House when he presented it did not discuss it with me ahead of time. In retrospect, and particularly in light of what I have learned subsequently concerning the public safety issue, I should not have voted for that amendment. Senator Klobuchar. And so did you consider that at that time when you voted on it, the public safety risk? Judge Boggs. I was not aware, as I am now, Senator, at the time of the public safety risk. Again, in the back and fro of bringing up a bill, floor amendments coming up, I should have, and in hindsight it is regretful that I did not. Senator Klobuchar. Okay. Last year the Supreme Court issued an important ruling on marriage equality in the Windsor case. How would your personal views on marriage equality impact your decisions as a judge? Judge Boggs. They would not. I am faithful to the obligation to follow stare decisis, and I would follow Windsor and any other cases out of the Supreme Court, including Romer and Lawrence. Senator Klobuchar. Would you commit to following Supreme Court precedent in this area when it comes to marriage equality? Judge Boggs. Absolutely, Senator. Senator Klobuchar. All right. I know that there has also been some attention around comments you made while running to be a State court judge. If confirmed, what role do you think your personal opinions about women's reproductive rights should have on the cases before you? Judge Boggs. My personal opinion on women's reproductive rights has no role on how I would decide legal issues or decide cases or analyze issues were I to be confirmed as a district court judge. Senator Klobuchar. One of the things that has been brought to my attention I think would concern a lot of people, but not as much as the amendment on the doctors' posting. But you cosponsored a bill that took some pictures with license plates--you took pictures with a license plate, I think, and it said ``Choose Life,'' the license plate. What do you think about that and how it would influence any decisions that you would make going forward? Judge Boggs. Well, thank you, Senator. The Choose Life adoption support program was a bill that was presented to the General Assembly. I cosponsored it along with probably a majority of the members of the 180-member House of the General Assembly in Georgia because it was important to the constituents that I represented. It would have no impact, my personal beliefs, on reproductive rights as with my personal beliefs on any issues. Not only would it have no impact if I were fortunate enough to be confirmed, but I think my record demonstrates over the last 10 years that I am faithful to never interject my personal opinion into decisions I make. Senator Klobuchar. Were there any questions about you injecting your personal opinion into decisions that you made? I am sure you had cases appealed, like everyone else does, as a State court judge. And were the basis of any of the appeals that you had somehow injected your personal views on any subject? Judge Boggs. I am proud to say, no, Senator, not one time. Senator Klobuchar. All right. Thank you very much. I appreciate your answers. Judge Boggs. Thank you. Senator Hirono. [Presiding.] I will be chairing. Senator Flake? Senator Flake. Well, thank you. I hate to keep this going, but, Judge Boggs, just quickly, in 2013 you received the Grass Roots Justice Award that was given by the Georgia Justice Project on behalf of the Criminal Justice Reform Council. According to the Georgia Justice Project, the Grass Roots Award was created in 2008 as a way to lift up the work of people and organizations whose efforts give voice or lend aid to the poorest in the community, and in doing so, complement the work that they do at the Georgia Justice Project. Can you tell about the role you played in the Criminal Justice Reform Council and the work you did to receive that award? Judge Boggs. Thank you, Senator. That award was received by me on behalf of the Criminal Justice Reform Council. It was not an award specific to me, but an acknowledgment of the work of the entire council, which I co-chaired. I have had the pleasure, since I have been both a trial court judge and an appellate court judge, to work to improve the judicial system for the very people that are most frequently involved in it, particular in the criminal justice arena. As a trial court judge, I developed and presided over our circuit's first felony drug court program. I believed that it was appropriate to try to assist people whose mental health issues or substance abuse issues were driving their felony criminal conduct. I am proud to say that that program still exists. It has now expanded into a mental health court program, which I had always aspired to do had I stayed on that bench. In 2011, the chief justice of the Georgia Supreme Court appointed me as a member of the Georgia Criminal Justice Reform Council, and as a member, we addressed adult felony criminal justice reform by doing a lot of the things, quite honestly, Senator, that this body is considering, both in the Smart Sentencing Act, the Recidivism Reduction Act, and Chairman Leahy's Safety Valve Act of 2013, where we have looked at mandatory minimums and provided a couple of safety valves. We have looked at programs that would assist people with substance abuse issues that are involved in felony criminal conduct so that we can assist them in the community. We found that those programs that are evidence-based programs are very successful in reducing recidivism. They are much better at saving taxpayer money. And, importantly, they put people back with their families, and they restore people to a productive life. Later, the Governor of the State of Georgia appointed me for the last 2 years to co-chair Criminal Justice Reform. In 2013, we addressed juvenile justice reform, developed a fiscal incentive grant program to incentivize local communities to treat juveniles in their community as opposed to very costly and unproductive, we think, out-of-home placements. And then last year, I co-chaired the council again, and we addressed the concept of re-entry. What do we do with the approximately 18,000 inmates that are being released from Georgia's prison system a year? How can we better equip them to be successful? How can we ensure public safety at a better rate than what we have been achieving? Our recidivism rates are currently roughly 30 percent, and that is unacceptable, particularly with respect to the cost to the taxpayers in our State. And so with the charge we were given, I have been very fortunate in being part of developing a program, an evidence- based program in the State that will help these inmates while they are in prison learn job training skills that are transferable, help these inmates with substance abuse programs while in the system, provide a seamless transition from prison to the community, and then provide resources to the community to ensure that these citizens are productive, lawful, compliant with the law, but also productive citizens that can get their lives back. And I have been very proud to be a part of that, and I appreciate your question, Senator. Senator Flake. Thank you. That is all. Judge Boggs. Thank you. Senator Hirono. Senator Feinstein. Senator Feinstein. Thank you very much, Madam Chairman. I would like to ask a couple of questions, if I can. Again, I regret that I was not here, Judge Boggs, to hear your answer to the question on essentially the bill that had online profiles to the number of abortions performed by a doctor over the prior 10 years. And I think you said it was a mistake. What exactly did you mean by it was a mistake? Judge Boggs. I do not think it would be appropriate, Senator, to post that information online. It would be a huge public safety risk for the physicians that are performing, lawfully performing abortions pursuant to the authority they have from the Supreme Court. And that is what I meant. Senator Feinstein. Okay. So you are saying essentially the bill was wrong. Judge Boggs. The amendment that was proposed was not---- Senator Feinstein. The amendment, yes. Judge Boggs. It was not my amendment, but, yes, ma'am, the amendment was ill conceived, I believe, in hindsight. Senator Feinstein. Because I trust you are aware of the kind of violence that takes place around this issue. And, you know, there is a question, I think, among many of my colleagues whether an activist conservative judge can no longer--or an activist conservative can become a judge that is not an activist judge. I happen to believe that is possible. In a couple of cases, I have voted for an Eleventh Circuit and a Fifth Circuit judge that I think have done very well when they said they would not continue to be activist. I think when you come to a Federal court, it is really very important that the questions of constitutionality on an issue are active by someone who, as Judge Abrams has said, will follow precedent. And this Committee--I sat on it for 22 years--we have been acutely disappointed by the fact that people pledge themselves to stare decisis, and then they leave here and they take the oath as a judge, and you just watch and you say, ``Where has it all gone?'' I do not want to cast a vote for someone where that happens, and so I want to ask you a couple of questions. The issue of choice is extraordinarily important to me. I represent a State which is dominantly pro-choice. What would be your position on issues revolving around a woman's right to choose? Now, this is purposely an open question. Judge Boggs. Yes, ma'am. Thank you, Senator. My position on matters that might appear before me regarding a woman's right to choose would be faithfulness to the rule of law, faithfulness to stare decisis. And while I respect that there have been some bad experiences maybe by Members of this Committee, I think the best example I can give you is not what I say that I will do but evidence of what I have done as both a trial judge and an appellate court judge in my State, disposing of roughly 14,000 cases. I think my record is the best evidence that I can separate any political or partisan or public policy position I may have from my ability to be an impartial decisionmaker. And you have my commitment that, if I am fortunate enough to be confirmed, I will follow the precedent of the U.S. Supreme Court on women's reproductive rights issues as I will on any other issue that they decide. Senator Feinstein. Well, you see, I listened to a couple of Supreme Court Justices say just that, and Senator Hirono was not here then, but there were long discussions on this, and then, bingo, it all changed. And it makes us feel very foolish to believe what we hear. So, I mean, for me, I have to make a judgment whether you mean what you say or whether it will be just like the Supreme Court Justices who pledged to us diligent pursuance of stare decisis. And it just did not happen. Now, let me ask you another issue, and Senator Klobuchar began it, and I would like to just do it in a slightly different way, and that is, U.S. v. Windsor. I am aware that a lawsuit is pending in the court to which you are a nominee, so I want to be very careful. But I am the main author on repealing the Defense of Marriage Act. I was one of 14 that voted against it in the 1990s, and we have 42 cosponsors. We lost Baucus, but we are getting close. And as you know, 17 States and the District of Columbia have essentially approved the right of marriage to same-sex partners. What DOMA did was--family law--divorce, et cetera--is generally the preserve of State law, but in that case, they made it the preserve of Federal law and in so doing removed some 1,100 Federal rights from couples that are duly married in their State. So this involves estate tax rights, Social Security rights, and on and on and on. So the question I have would be: If your State were to approve same-sex marriage or the Supreme Court on the Windsor case would repeal DOMA, how would you feel and how would you act as a judge? Judge Boggs. My personal feelings would be irrelevant to how I would act as a judge. You have my commitment that I would follow the decision in Windsor. I would follow any precedent from the Eleventh Circuit or the Supreme Court on marriage equality issues, as I would any issues. My personal opinions expressed over 10 years ago on that issue may or may not have changed. But whatever my personal beliefs are on that or any other issue, they have never been relevant to how I have decided cases. With respect to your earlier question, Senator, my fundamental philosophy is that judges have an obligation to follow the law. You do not have to believe me necessarily when I say here today under oath--I hope you would--that I would follow precedent. But I hope you would also look to what I have done for the last 10 years that demonstrates a faithfulness to follow precedent in over 14,000 cases and 273 opinions I have authored on the Georgia Court of Appeals that have all been made available to the Committee. I think it is a fundamental obligation of judges to follow stare decisis, but I recognize that maybe that is not always followed through with by some nominees. Senator Feinstein. Well, at least my vote depends on whether I believe that or not and for how long I can continue to believe it. And I think this is a very hard one. The third issue, of course, is race. I think you were eloquent on the subject of the Confederate flag and what it means. It really means much more than just the material of that flag. It is a whole history, it is a whole set of beliefs, which are rather counter to America of today. So my hope is--and I do not know. I hope to have a chance to talk with you more after this. But what I want you to know is for my vote I have to have certainty. And I do not know quite how to get it in view of this record. So I want to just put that on the table publicly. Judge Boggs. Thank you, Senator. I respect that position. Senator Feinstein. Thank you. My time is up. Thanks, Mr. Chairman. Senator Blumenthal [presiding]. Thank you, Senator Feinstein. Let me just close by going back to a line of questioning that I began--I know that some of my colleagues have pursued it--the amendment dealing with publicizing doctors' performances of abortion. And I know that you said that it was not your amendment, that you may have been--well, maybe I should just ask you: Were you unaware about the violence that was linked to performing abortions at that time? Dr. Barnett Slepian was killed in 1998. The FACE statute in New York was passed in 1994. Your amendment was voted on in 2001. There was clearly a very powerful history of violence linked to doctors' providing these services. And I find frankly incredible the idea that you would not understand that this amendment would put doctors at risk. Judge Boggs. Well, thank you for the question, Senator. Indeed, it was not my amendment. However, I did support it on the floor. I have stated earlier in this hearing that I believed the amendment was ill conceived. I regret that I voted for it. I recognize the public safety risk now much more so than I did at that time. Ultimately, I think, as a legislator casting thousands of votes for amendments and bills and making decisions in committee, it is not, I think, entirely unexpected that there may be some votes that I have cast throughout my judicial career that in hindsight looking back on them as a legislator trying my best to represent the people that I represented in a very staunchly pro-life district, I might have made some mistakes. I was not a perfect legislator. I am not a perfect judge. But looking back on it, I regret that vote, and I recognize fully the public safety risk. Senator Blumenthal. Well, I appreciate your disavowal of it. I think it is more than just another vote. This one was significant. We all cast votes here, and we are all responsible for every one of them, and some are more significant. This one strikes me as profoundly significant insofar as it involved not just a matter of constitutional rights, not just the rule of law, but physical safety for medical care providers, doctors who were providing constitutionally guaranteed rights to women vulnerable to the same kind of violence. So I appreciate your comments on it, and I think it is something that we will have to take into account. Senator Franken. Senator Franken. Thank you, Mr. Chairman. I, too, have some questions for Judge Boggs, and I know that mainly it is--and the rest of you should feel good about that, is what I am saying. You should feel very happy about that. Judge Boggs, I had the opportunity to meet you a couple weeks ago, and I enjoyed that meeting. And I believe that judges can decide things by--you know, in the proper way, even if they have had a record before of votes when they are in the legislature that are contrary to constitutional--what has been decided constitutionally. And I do not want a situation where we cannot ever have people confirmed because they have some public record on something. I think that is a bad tendency. I think that is a bad tendency to do that. So I think that-- because a judge's role is to make decisions based on what the law is, and not take their personal opinions, although personal opinions or experience I think do shape how a judge--and it invariably has to. And Oliver Wendell Holmes said that, you know, experience is the law in many ways for judges. So I think it is important, we have to factor it in, but we cannot establish a system here where we are just looking at things in the past, either at votes as a legislator or just opinions expressed by a professor, you know, who is writing scholarship. I think that is a dangerous thing that we are doing. But I do think that we--I think it was good that we get to question you, and I think it is good that we get to actually meet you beforehand in private, and I did that. And when I talked to you about the Confederate flag or the Confederate war symbol, or battle emblem, rather, I guess, on the flag, you told me that you voted against changing the flag because your constituents wanted the right to vote on it on referendum. Isn't that right? Isn't that what you told me? Judge Boggs. I did tell you that, Senator, yes. Senator Franken. So then I look back, and it turned out you voted twice on this, and at the first time, in 2001, there was no referendum. Judge Boggs. Correct. Senator Franken. So I felt kind of, you know, a little odd about that because I went like, okay, well, that one there was no referendum. And so give me a chance--or I would like to give you a chance to explain that, because what I got out of our meeting was that you had--that your constituents overwhelmingly wanted a referendum on this, and yet there was no referendum attached the first time. So can you explain both votes? Judge Boggs. Well, the first vote, Senator, indeed there was no non-binding referendum presented in that legislation. My constituents overwhelmingly believed that a vote against that bill might subsequently result in a referendum that would offer them an opportunity to choose between the old flag and what subsequently we had changed to. You know, I have expressed earlier my position on that. I do not know how to explain it any further. I will tell you, Senator, that it was an agonizing opportunity 17 days into my legislative career to make this balance between and address this challenge between voting the will of my constituents and voting what I believed conscientiously was the correct thing to do. Subsequently, there was an opportunity to choose--to present to the public in Georgia a non-binding referendum that includes the post-1956 flag and the flag that we had changed to in 2001. I voted for that referendum. It provided my constituents with what I thought they wanted. Subsequently, however, that did not pass, and there was another referendum to the one I think to which you refer, and voted the same way I did the first time. Senator Franken. Did you introduce a resolution in 2001 to have a referendum? Judge Boggs. No, sir. I never--I did not introduce a referendum. I did not author any of these bills. But I did not, likewise, introduce a referendum. Senator Franken. Okay. Well, you understand from my point of view where, when I asked about this, you said it was because your constituents overwhelmingly wanted a referendum. Judge Boggs. Yes, sir. Senator Franken. But there was no referendum on that vote, and you did not introduce anything about a referendum. Did you say anything about there bring a referendum? Was there anything in the public record about your saying there should be a referendum? Judge Boggs. No, sir, I never spoke then publicly about my position on the flag. I do not necessarily---- Senator Franken. Okay, but you talked to me about it. Judge Boggs. Yes, sir. Senator Franken. And what you said to me was the way you voted was because your constituents overwhelmingly wanted to vote on it. Judge Boggs. Yes, sir. Senator Franken. And it does not seem like that vote had anything to do with a referendum. Judge Boggs. I understand the question, Senator, and appreciate it. I am trying to clarify it. I do not see the inconsistency that your question presumes. My constituents wanted to vote, we were not presented with an opportunity to vote, and that therefore represents an inconsistency. My position was, my constituents' position was to vote against any flag change that did not present them with an opportunity to vote on the flag. And 17 days into my career would not have probably been the time for me to introduce a non-binding resolution on that matter. Senator Franken. Okay. But what you told me was that you voted because you wanted them to have a chance to vote, but nevertheless, there is no record of your saying that. Judge Boggs. Right. Senator Franken. And, actually there is a record of your telling a local newspaper that you voted to keep the flag with a Confederate--this is in 2001, that you voted to keep the flag with a Confederate symbol because your constituents overwhelmingly supported the flag. Judge Boggs. Yes, sir, I did say that, and I think that is consistent with what I have said today, and what I told you when we met. Senator Franken. It seems like that when we met, you said that--you did not say it was because your constituents overwhelmingly supported the flag. It was because your constituents overwhelmingly wanted to vote on it. And I think those are two different things. And it gave me the--it led me to the understanding, whether you intended it or not, that your only vote was a vote on whether to put that flag up for a vote, that that is what you wanted, that you voted against changing the Confederate flag on the Georgia State flag--it is like a bit part of the flag. It is like half the flag or something. And that was passed in 1956, and for no other--I mean, that was because of Brown. And so it really was about--this was not something that was part of the Georgia State flag after Reconstruction. It happened in 1956, 2 years after Brown. So to me, this is a very important thing, and as I said, I do not think that we should be judging--or we should be confirming people based on public stuff they said before unless it is so antithetical to being a good judge. And I know you have been a judge for 10 years now, and I hear wonderful things about you. The thing that upsets me or that gave me some pause is that we had this meeting, and in the meeting I felt that you gave me a little slightly misrepresentation of your record on this by saying that the reason you voted against changing the Confederate flag being on the bill--on the State flag was that your constituents wanted a referendum on it. But there was no referendum tied to that 2001. You did not raise anything about a referendum. You did not say anything publicly about a referendum. And, in fact, you told a local newspaper that the reason you voted against it was because your constituents overwhelmingly want to keep that flag. And those are two different explanations to me. Those are two different things. And so while I am very--you know, I am very disturbed about this tendency of us to vote against people because something in their past--because they were brave enough or acted out of conviction beforehand, I do judge by my meetings with people how forthright they are. On this last thing, or on this thing that the Chairman brought up about the voting to put online the number of procedures, abortion procedures, that doctors had performed, you know, there was at that time these Nuremberg files that they talked about, which they put on the names of doctors. There had been doctors murdered for this. And yet you say that you were a State legislator then and that you were not aware of that at all? Judge Boggs. Senator, respectfully, I was not. That was not my amendment. The bill that was proposed to be amended was a Patient Right to Know Act that would have listed 20 other things about physicians, predominantly related to medical malpractice lawsuits and settlements. Senator Franken. But did it list procedures, other procedures? Judge Boggs. I do not recall, Senator, if it listed other procedures. Senator Franken. You do not recall. Judge Boggs. But I have indicated here today and I would have indicated previously that my position on that was ill conceived. Senator Franken. But you were a State legislator at the time but were not aware of any of the public safety issues that were involved around this whole issue? Judge Boggs. I was not, and I think that is probably attributable to the fact that this came as a floor amendment, not a bill, not something I had an opportunity to study, not something I had an opportunity to even speak to other legislators about. It happened on the floor of---- Senator Franken. So this was simply off your radar, all this news around threats to doctors and bombings of clinics and those kinds of things? How old were you at the time? Judge Boggs. Thirty-seven. Senator Franken. You were 37 years old. Judge Boggs. Yes, sir. Senator Franken. And a State legislator. Judge Boggs. Yes, sir. Senator Franken. And you were not aware of any of that. Judge Boggs. No, sir. Senator Franken. Okay. Thank you, Mr. Chairman. Senator Blumenthal. Thank you, Senator Franken. Senator Hirono. Senator Hirono. Thank you, Mr. Chairman. And I thank all of the panel members for being here. Judge Boggs, you explained your vote regarding the Georgia flag, you explained your position regarding the online posting of abortion instances as basically, if I understand you correctly, reflecting your constituents' views and not your own conscience. Is that an accurate statement? Judge Boggs. With respect to the flag, yes, Senator, that is correct. With respect to at the time my position on reproductive rights issues, I was respecting also the will of my constituents, yes. Senator Hirono. For those of us who have served in State legislatures, we certainly know the challenges in when to express your constituents' views and when to vote your conscience. So as you think back, can you give an example of when you went against the will of your constituents and voted with your conscience? Judge Boggs. I can think of several instances, Senator. I supported reapportionment maps drawn by Democrats in the General Assembly during my term in the legislature that were not supported by the majority of the people in my district. Senator Hirono. Well, if you do not mind my interrupting, then considering that so many of the questions that we have been asking have to do with in the area of reproductive rights, civil rights, those areas, have you at any point when you were in the State legislature voted your conscience on matters that are related to the gist of the questions that we have been asking? Judge Boggs. Senator, I cannot think of any specific instance at this time. I would be happy to answer that question in writing after having been given an opportunity to review my legislative voting record. Senator Hirono. That is fair. [The information referred to appears as a submission for the record.] Senator Hirono. You have voted a number of times as a legislator for bills and amendments that raise the question regarding your views on abortion. So I wanted to ask you, because you said that your personal view on abortions would not be appropriate for you to let us know, but do you agree with the Supreme Court's decision in Roe v. Wade that granted a constitutional right to a woman to have an abortion? Judge Boggs. Absolutely, and also in the Casey decision as well, and I would be bound by those if I were confirmed, and I pledge to you that I would faithfully follow that precedent. Senator Hirono. So until and if the U.S. Supreme Court changes its decision on Roe v. Wade, you will apply Roe v. Wade in the way that it should be applied? Judge Boggs. Without question, Senator. Senator Hirono. Thank you. Now, you were also a vocal proponent as a State legislator on Georgia's constitutional amendment prohibiting same-sex marriage. You have also raised questions about judicial activism. I think the way you put it was you have concerns about judges issuing decisions that venture into policymaking. I take it that that is what you mean by judicial activism when they venture into policymaking that should be left to the legislature. Judge Boggs. Yes, Senator. Senator Hirono. So getting back to Georgia's constitutional amendment against same-sex marriage, you do know that that constitutional amendment is being challenged. Judge Boggs. Yes, sir. Senator Hirono. So if the constitutional amendment is struck down by the Federal court, would you consider that court to be engaging in judicial activism? Judge Boggs. I would not, but to---- Senator Hirono. Why is that? Judge Boggs. To go back to my comments made in 2004 as a State legislator, candidly, I did believe that at that time. Ten years ago, my comments about judicial activism were that judges that were to determine same-sex marriage as constitutional would have been engaging in that. Looking back on that now, particularly with 10 years being a judge, 10 years being faithful to the obligation to follow stare decisis, 10 years of looking back on a career as a legislator and noting the notable differences between both roles, that is what I was referring to in 2004. But I do not believe that now, that that judge that might decide, in Georgia or otherwise, that that constitutional amendment is unconstitutional would be engaging in judicial activism. Senator Hirono. So would you consider judicial activism in the context of if it were a lower court that were doing things that did not comport with what you viewed as what the Supreme Court, the U.S. Supreme Court held, that that would be deemed judicial activism? For example, when our Supreme Court decided Lily Ledbetter or decided Citizens United, would you consider those decisions judicial activism? Because they did take a lot of people by surprise, to say the least. Judge Boggs. No, Senator, I would not, and the difference is my view of judicial activism as a legislator versus my view of judicial activism as a judge. I have grown in my job as a judge to respect the role of judges to decide those cases based on the facts presented before them. When I was a legislator, I was not a judge. I did not have an obligation to be faithful to the rule of law. I was not making decisions in that capacity. And so I think the crux of the distinction is determining what I was at the time I made those comments. But certainly you are correct: Comments I made in 2004 were reflective of the sentiment you expressed. Senator Hirono. Except that as a judge, though, you will be confronted with cases before you that the decisions that you make on those cases could be deemed and described by State legislators, like you were, as engaging in judicial activism. And you can see that possibility as a Federal judge. Judge Boggs. Sure, Senator. Judges at all levels of court in my State or any State are routinely criticized for making unpopular decisions, maybe making decisions that legislators do not believe are appropriate. I have been in legislative hearings when that has happened, and I have been a judge where I have heard that happen. The difference is a judge that shows faithfulness to the rule of law is going to apply precedent faithfully, and while it is true those issues, the equal rights issues, have not come before me on a regular basis as an appellate judge, the jurisdiction that I have on the court of appeals is broad. We heard appeals from every class of course, and in each instance I have been faithful to follow the rule of law and to apply precedent. Senator Hirono. So you could as a Federal judge engage in what some legislators may consider to be judicial activism based on the facts of the case and what is presented to you? Judge Boggs. I cannot presume what a State legislator might think about any decision I made---- Senator Hirono. One like you. Judge Boggs [continuing]. as an appellate judge. Well, one like me very well may criticize me. But what I would say to that is that I have shown a dedication to the Code of Judicial Conduct in Georgia and never decided cases based on public clamor or fear of criticism. And I commit to you that I would continue to be faithful to those obligations. Senator Hirono. Just for clarification, then, as a State court judge, have you had cases dealing with marriage equality, equal protection for gays and lesbians? And I think you did note that you had one case involving a minor seeking an abortion. So as to marriage equality cases, equal protection of gays and lesbians, have you had as a State court judge any cases in those areas? Judge Boggs. I have had one, Senator, that it is an adoption case that the record is sealed, and I would not want to do anything to jeopardize the rights of the mother or--but I will tell you that I did have a case as a trial court judge several years ago wherein a woman who identified herself as a lesbian and identified her partner before me in chambers requested that I approve her adoption of a child from foster care. Georgia law is particular with respect to juvenile court matters and particular with respect to adoptions, and we are-- it is sacred that we maintain the fidelity of our laws in that those records are sealed. I do not know what she may have told family or others in her community concerning her sexual orientation. It is irrelevant to me. But I do know that I was presented with that case by a lawyer that told me that he had presented that case to our circuit's chief judge and our circuit's chief judge refused to hear that case. So he came to me, the junior judge in the circuit. And I heard the case. I listened to her evidence, her fitness to be an adoptive parent. I listened faithfully and impartially to the evidence presented by the Department of Family and Children's Services, and I approved the adoption. And as I have said routinely, I am faithful to follow the law. That was the appropriate decision to make in that case, not because of her sexual orientation but because the facts warranted it. She was capable of taking care of this child. She had shown an ability to take care of the child through the foster care program. DFACS had indicated that every time they conducted a home evaluation, her home was clean and she was capable of taking care of the child. I handled that case as I would for any other petitioner concerning adoptions. Senator Hirono. Thank you. My time is up. Thank you. Senator Blumenthal. Thank you, Senator Hirono. Senator Coons. Senator Coons. Thank you, Senator Blumenthal. I would like to thank all of the nominees who appear before us this morning. Thank you for the opportunity to join what I understand has been a vigorous exchange with other Members of the Committee, and I would like to thank Senator Blumenthal for chairing today. First, if I might, I would just like to ask each of you in turn if you would offer what comments you wish on what role you think you would have as a member of the Federal judiciary in ensuring equal access to justice and ensuring fair and balanced treatment of all litigants who might appear before you, and what in your experience gives us some confidence that you will make that a priority in your service, if we might, Ms. Abrams, welcome, and from you to your left, that would be wonderful. Thank you. Ms. Abrams. Thank you, Senator. As I have stated, I believe that my role as a judge, if I am confirmed, will be to fairly and impartially apply the applicable law to the individual facts of each case, and that would necessitate that I be fair and impartial with each person that comes before me. I believe that throughout this process people have talked to lawyers who have appeared opposite me, and I think that my interaction with them, my attempt to be fair in all cases, even as a prosecutor, to see the full picture, not disregarding my duty as a prosecutor and as an advocate for the Government, but to be fair and to be considerate of what was going on, and I believe that lawyers who have worked with me on the other side, and I believe judges whom I have appeared before would say that I do attempt to be fair and balanced, and I would carry that into being a district court judge if I am confirmed. Senator Coons. Thank you. Judge Boggs. Judge Boggs. Thank you for the question, Senator. Equal access is kind of a broad topic. I view equal access to the court as being a model of efficiency, and that is that the judge has an obligation to move cases through the system so that cases do not languish, so that litigants have an opportunity to bring closure to their cases. The efficiency of the judicial system is bent on that, and I think it is necessary. You have corporate litigants that have no closure to cases because cases are not moving, and so equal access means a lot of things. It means that the judge should remain active--to me, the judge should remain active in the case, move cases forward, set reasonable deadlines, but also move the court into a system that is more efficient, and that may mean--for example, when I was a trial court judge, I dealt with the drug court program to move some of the felony cases off the original docket, the main docket, criminal docket. It also may mean that--I supported pretrial diversion programs. I supported mandatory mediation in civil trials where juries had been requested--all models built on allowing equal access by improving how quickly people could get to court. With respect to ensuring everyone is treated fairly, I think the best evidence I could give you of that would be my record as a trial court judge and appellate court judge, where I have an unblemished record of having ensured that everybody that appears before me is treated equally, with an unbiased and an impartial application of the law to the facts of their case. And that is what has prepared me, I think, to model that if I were fortunate enough to get confirmed on the district court. Senator Blumenthal. Thank you, Your Honor. Mr. Cohen. Mr. Cohen. Senator, if I am fortunate enough to be confirmed, the oath that I would take provides that I would administer justice without respect to person and to equal rights to the poor and to the rich, and I would take that very seriously. I think that is a cardinal fact that any Federal judge has to consider when he or she is presiding over a case. I think it is also important, just looking at my record, a lot of us attorneys in private practice have done pro bono work, and I certainly have done some with respect to working through the Atlanta Bar Association's eviction defense program and representing people who are being unjustly thrown out of their apartments. And also for many years I served on a board of a wilderness group that provided for alternative sentencing for juveniles that, frankly, should not have gone into a juvenile detention facility but deserved to go to a program where they can get education and work to keep themselves out of the adult prison system down the road. So also as a district judge, we have the Federal Defender Program in the Northern District of Georgia, and I, of course, would, in accordance with the rules in the Northern District, whenever a defendant came before me, make sure that that defendant had the opportunity not only for counsel but obviously to notify the Federal Defender Program if they could represent that person. Senator Coons. Thank you. Ms. May. Ms. May. Thank you, Senator Coons. Throughout my time in private practice, I have mainly been handling plaintiff's litigation. So in terms of my work experience, I oftentimes represent people that are not familiar with the court system and have to kind of take them through what is going to happen and educate them about the civil system. So from that standpoint, I have experience in those areas. Along with my colleagues, I do believe the most important part of equal access is to treat everyone fairly before the law, no matter what their circumstances are. But there are some concrete activities that the judges can do to make that more likely. For example, courts on their websites can provide links to different resources that pro se people can utilize. Judges in their standing orders can provide more detail for folks represented pro se so they can learn more what is expected of them in the courtroom. I also believe a judge has a responsibility to encourage pro bono work and to be out in the community and speaking on issues about equal access to the courts. And in my own career, I have been very active in pro bono activities. Thank you. Senator Coons. Thank you. Ma'am. Judge Ross. Thank you. You cannot see my nameplate. Senator Coons. Yes, forgive me. Judge Ross. Eleanor Ross. That is fine, Senator. Thank you so much. Senator Coons. Forgive me. Judge Ross. That is no problem at all. As a State court judge, I have concerned myself very much with equal access. First of all, we do have a lot of pro se litigants in State court, so it is important to assure that they know all of the resources available to them, including the services of the public defender and legal aid as well as the law library. Also, in terms of fairness, I have demonstrated as a State court judge that I am very fair and respectful to the litigants who appear before me, whether they are pro se litigants or the most well versed, well-known attorneys. So it is a pattern that I have demonstrated time and time again as a State court judge, and if I am fortunate enough to be confirmed as a district court judge, I would definitely continue it. Senator Coons. Thank you, Your Honor. Judge Ross. Thank you, sir. Senator Coons. Judge Boggs, if I might, I have a few questions rooted in your record that I wanted to get to, if I might. Judge Boggs. Yes, sir. Senator Coons. You cast a vote when a member of the Georgia Legislature to approve posting profiles of abortion doctors online, and there has been some exchange about that. What, in your opinion, motivated your vote for that measure? And how could I understand that measure as being anything other than an intent to burden a woman's right to choose? Judge Boggs. Thank you for the question, Senator Coons. I was motivated by a very strong desire to represent the will of my 38,000 constituents in south Georgia who were predominantly pro-life. Those issues were important to my constituents. That amendment, albeit an amendment that I did not have very much time to consider and for which I have expressed regret for not having been more considerate of that vote, in the end of the day the motivating factor for my vote on pro-life issues in general was motivated by my desire to represent my constituents. Senator Coons. You in 2012 completed a judicial questionnaire in your application to the court of appeals on which you now serve, and you stated, and I think I quote, ``The judiciary continues to endure criticism, fairly earned in some cases, of abrogating their constitutionally created authority by issuing decisions that venture into policymaking.'' This is the question of activism by the judiciary. If you could, just help me understand. Did you believe the Georgia Supreme Court was being inappropriately activist when they struck down Georgia's sodomy law in Powell v. State or the U.S. Supreme Court in Lawrence v. Texas? Were they being inappropriately activist in the way you detailed there? Judge Boggs. No, sir. Senator Coons. Could you name three or four cases where you believed the judiciary has fairly earned criticism for, as you put it, abrogating their constitutionally created authority? What cases did you have in mind? Judge Boggs. At the time I made not necessarily those comments but other comments on the floor of the House as a legislator, I had in mind judges that were declaring same-sex marriage as constitutional, candidly. That is what I thought as a legislator. That is the cases that I was referring to, those States where judges had declared that law constitutional. Looking back on that, particularly now, 13 years later, and particularly now, with the benefit of having been a judge for 10 years, the concept of activist judge that I had as a legislator is no longer prevalent in my mind-set. Senator Coons. You said, I believe, earlier today in an exchange with Senator Blumenthal that it would be inappropriate under Georgia's Canon of Judicial Ethics, or perhaps under the Federal Canon of Judicial Ethics as well, to convey to this Committee where you stand on particular issues, yet those same canons would have applied to you as a judicial candidate in 2004 when you made a public announcement in a candidate forum about where you stood on issues like same-sex marriage. Was that a violation of the Canon of Judicial Ethics? Judge Boggs. I do not know. I would leave that to the Judicial Qualifications Commission in Georgia. I will tell you that, in looking back on those comments made while I was still a legislator but also seeking the job of judge and, candidly, probably after I had qualified for the position of judge, I regret that I was not more articulate and artful in crafting an explanation to my constituents that reflected my understanding of the role of a judge, looking back on it. Senator Coons. The Georgia Canon of Judicial Ethics states a judge or a candidate for election to judicial office shall not make a contribution to a political organization, and a political organization is defined as ``a political party or group the principal purpose of which is to further the election of a candidate to office.'' Would you consider Georgia Conservatives in Action to be a political organization under that definition? Judge Boggs. Senator, I would have to look at it. I am not--I am familiar with that organization, but not enough with regard to tax status and otherwise to determine if they meet-- -- Senator Coons. You are familiar with it because your campaign committee perhaps made a contribution to it in September 2012, and my understanding is that Georgia Conservatives in Action endorses political candidates, including a candidate for the U.S. Congress. That is an issue that is of some concern to me in terms of crossing, I think, a line that is fairly clear. Canon 7-A of the Georgia Canon of Judicial Ethics also says that a candidate shall not publicly endorse a candidate. When did you announce your candidacy for superior court judge? Judge Boggs. Senator, I do not recall. It would have been sometime in 2004. Senator Coons. And at that point, were you a member of the Bush-Cheney Democrats for Bush National Steering Committee? Judge Boggs. To my knowledge, I have never been a member of that committee. It was only throughout this process that I discovered I had been listed, and I believe my listing, without my permission or even knowledge, was by virtue of me having attended a meeting prior to President Bush's fundraiser in Georgia. I did not attend the fundraiser. I did not make any political contribution. I did go back and having now seen that I was a member of that committee, 13 years later, and realized that everybody that attended that, with the exception of one member, was listed. Again, it was done without my authority. I had no knowledge of it. And as to your comments back on Conservatives in Action, at the time I made a contribution from my campaign, judicial campaign, to Conservatives in Action, I had no knowledge of their sponsorship or endorsement of any candidates for elective office. Senator Coons. I appreciate your answers to these questions. I may have others for the record, and, Mr. Chair, I appreciate your forbearance in the time I have taken. I do think there is a voluminous record here that well bears consideration. I appreciate your testimony today. And to the rest of the panel, thank you very much for your testimony as well. Senator Blumenthal. Judge Boggs, the questions that you have been asked by Senator Coons lead me to one last set of questions, and I promise they will be brief. On the topic of judicial activism and the right to privacy, you may recall in February 2004, in your capacity then as a State legislator, you spoke on the floor of the Georgia House of Representatives in favor of a resolution calling for a proposed constitutional amendment that would have banned same- sex marriage. And in support of that resolution, you said to your colleagues that they should recognize the ``dangers'' posed by ``activist judges and mayors operating in derogation of current State law.'' And you cited as an example of that activism and derogation of State law a decision by the Supreme Court of the State of Georgia in the 1998 case of Powell v. State. You may recall in that case the Georgia State Supreme Court struck down the Georgia sodomy statute that imposed sentences of 20 years to people who engaged in consensual sex in the privacy of their own homes. And my question to you is: Number one, do you think the Georgia Supreme Court wrongly decided Powell in striking down those laws? Judge Boggs. I do not now, no, sir. Senator Blumenthal. You did then but you do not now? Judge Boggs. My views have changed and my roles have changed. As a legislator, talking about activist judges was quite markedly different than what I believe now, yes. Senator Blumenthal. And you would not now support a constitutional amendment banning same-sex marriage, I take it. Judge Boggs. No, sir. I mean, my position on that issue, whatever it might have been then and whatever it is now, though, however, has no import whatsoever on how I decide cases. Senator Blumenthal. In that speech in 2004, you cited Judge Carley's dissent in Powell, and you cited his dissent as evidence of the potential dangers of judicial activism. And I wonder whether you would agree now with Justice Carley, who wrote in that dissent, ``A constitutional right to privacy obviously cannot include the right to engage in private conduct which was condemned as criminal at the very time that the Constitution was ratified.'' I will repeat it for you. Judge Boggs. Please. Senator Blumenthal. ``A constitutional right to privacy obviously cannot include the right to engage in private conduct which was condemned as criminal at the very time that the Constitution was ratified.'' You cited that dissent with approval in support of a view that, in effect, Powell was wrongly decided. And I would just point out that Georgia had many statutes, including criminalizing sexual relationships in marriages between people of different races at the time the Constitution was passed, and Justice Carley's dissent would indicate that the right to privacy would cover none of those kinds of private consensual acts now. Judge Boggs. I think to the extent that you are asking me to agree or disagree with my opinions about Justice Carley's dissent, I have not read that dissent in 10 years. My personal views on that are irrelevant, but I would say this: To the extent his opinion has been conflicted by decisions from the Supreme Court, I would follow the decisions of the Supreme Court. And while I have respect for Justice Carley, a very good friend of mine, formerly on the Georgia Supreme Court, my role as judge would be to apply precedent. Senator Blumenthal. Thank you. You know, I want to close by thanking all of you as potential and likely district court judges because you are really going to serve as the protectors and guardians of our Nation's legal conscience, and I am reminded of that fact, thinking of Judge Frank Johnson, who was invoked--his memory was invoked by Senator Durbin. You know Judge Johnson's history. He was more than an icon. He was really a hero. And I think he is the reason that many of us chose this career, chose to be trial lawyers or prosecutors, because of his conscience and conviction and courage standing up to ostracism, physical threats, and violence. And so I hope that you will take this responsibility--I know you will take it seriously because you are truly going to be the voice and face of justice for the people who come into your courtrooms. So I want to thank you for the long hours that you will spend, your willingness to serve, your families again who are here today, your friends who have supported you, to the Senators of your State, Senators Chambliss and Isakson, for their leadership in making your nominations possible, and to the President of the United States for his faith in your ability to serve. And with that, I am going to adjourn this hearing. The record will be kept open for 1 week, and thank you all for attending. [Whereupon, at 12:10 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 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] NOMINATIONS OF ANDRE BIROTTE, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; JOHN W. deGRAVELLES, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA; RANDOLPH D. MOSS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; HON. ROBIN L. ROSENBERG, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; AND HON. RONNIE L. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI ---------- TUESDAY, MAY 20, 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. Members present: Senators Feinstein, Durbin, and Grassley. Also present: Senators Landrieu, McCaskill, and Nelson, and Delegate Holmes. OPENING STATEMENT OF HON. DICK DURBIN, A U.S. SENATOR FROM ILLINOIS Senator Durbin. This hearing of the Senate Judiciary Committee will come to order. Today we will consider five highly qualified nominees to the Federal bench, including Andre Birotte, who has been nominated to be District Judge of the Central District of California; John deGravelles, nominated to the Middle District of Louisiana; Randolph Moss, nominated to the District Court for the District of Columbia; Robin Rosenberg, nominated to the Southern District of Florida; Ronnie White, nominated to the Eastern District of Missouri. At these hearings it is traditional for nominees to be introduced before the Committee by Senators from their home States. For Mr. Moss's nomination, Congresswoman Eleanor Holmes Norton will provide an introduction, upon her arrival. And unless the Ranking Member has any opening remarks, we will allow the Senatorial introductions to commence. Senator Grassley. I am going to put my statement in the record. [The prepared statement of Ranking Member Grassley appears as a submission for the record.] Senator Durbin. Thank you very much, Senator Grassley. Senator Landrieu, do you have a time problem with another hearing coming up? Senator Landrieu. I do, Senator, thank you. I am chairing a hearing in 15 minutes, if I could proceed. Senator Durbin. If you will beg the indulgence of your fellow colleagues sitting at the table. Senator Landrieu. With the courtesies of my colleagues, thank you. Senator Durbin. Senator Landrieu. PRESENTATION OF JOHN WHEADON deGRAVELLES, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA, BY HON. MARY LANDRIEU, A U.S. SENATOR FROM THE STATE OF LOUISIANA Senator Landrieu. Thank you so much, Mr. Chairman, and I appreciate the courtesies of my colleagues to introduce Mr. John Wheadon deGravelles, a nominee for Article 3 Judge on the U.S. Middle Court in Louisiana. I was so pleased to recommend this nominee to President Obama, and I am very happy and proud to introduce him to you all today. He is affectionately known as Johnny. He is joined by his loving wife of many years, Jan deGravelles; his two children, Neale and Kate, who are both lawyers; his sister, Ann Norton, and close family friends who are here with him today. Johnny has earned the support of the President of the United States and both of his home-state Senators on the basis of his impressive legal career over a long period of time. Decades of Federal Court experience have brought him to this Committee with an unquestionably even and fair handed temperament recognized by all. Johnny was born in Lafayette, although he is a current resident of Baton Rouge. When he graduated with his degree from LSU, he graduated with top honors. For 24 years he has practiced at an extraordinary law firm, of which he helped to found and continues in that today. In addition to all of that work, Mr. Chairman and Ranking Member Grassley, I wanted to call to your attention, he has always come to my attention over many years, but particularly after Katrina, Johnny really stepped up as a leader in the legal community to help all of the many lawyers that were dislocated from their homes, from their practices, during that great disaster which we are still recovering from along the Gulf Coast. He was a Fulbright Scholar; he has been recognized for outstanding professional excellence by the Louisiana Trial Lawyers Association and the Council for a Better Louisiana. He has written numerous articles and publications. His civic engagement is really extraordinary. And I think, for the good humor of this Committee, and we always like to have well-rounded nominees, please let the record reflect that he is a legendary guitar player. And he plays blues, gospel, country and rock and roll. He once opened for the legendary Aaron Neville at a band concert in Angola Penitentiary, an experience he describes as going to rock and roll heaven. So anyway, he is a wonderful guy with a great sense of humor, with a terrific background in law. And I could not be more proud to present him to this Committee for your consideration today. And thank you so much, Senator Durbin and Senator Grassley. Senator Durbin. Thank you, Senator Landrieu. Senator McCaskill. PRESENTATION OF HON. RONNIE L. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI, BY HON. CLAIRE McCASKILL, A U.S. SENATOR FROM THE STATE OF MISSOURI Senator McCaskill. Thank you, Mr. Chairman. I am here today to introduce my friend and highly respected jurist and attorney in the State of Missouri. Judge Ronnie White earned his political science degree from St. Louis University in St. Louis, and then graduated from the University of Missouri Law School. During law school, he actually interned in the Jackson County Prosecutor's Office, where I began my legal career. He went on to return to St. Louis and worked at the Department of Defense Mapping Agency and also served as a trial attorney in the Public Defender's Office in both the City and County of St. Louis. In 1987, he entered private practice and during this period of time he was elected to the Missouri Legislature and served three terms in Jefferson City. He served as Chairman of the House Judiciary Committee, the House Ethics Committee and the Committee on Civil and Criminal Justice during his time in Jefferson City. In 1993, he was appointed to the position of City Counselor for the city of St. Louis. While serving as City Counselor, he argued a case before the Supreme Court of Missouri. One month later, he was appointed to the Missouri Court of Appeals, Eastern District. And then later, Judge White was appointed by Governor Mel Carnahan to be the first African-American to serve on the Missouri Supreme Court, in October 1995. He went on to be selected and serve as Chief Justice of the Missouri Supreme Court between 2003 and 2005. He also currently serves as an adjunct faculty member teaching trial practice and procedure at Washington University School of Law in St. Louis, Missouri. I will not take the time to cite all the community boards and commissions that Judge White has served on during his incredible career of public service in our State, and I will not go through all of the awards he has gotten, honorary degrees and other recognition. He currently is in the private practice of law, but continues to be a shining star to thousands of Missourians because of his career, which has really been emblematic of hard work, courage, dedication and service to public before self. He has never forgotten that his job as a successful attorney, lawyer and judge is about the community he serves, and not about him. Now, that is all the resume stuff. He is just a really good guy. He is probably the gold standard for ethical conduct as a sitting member of the bench in our State. And because he was a first, he had a lot of pressure on him in various ways. He has withstood that pressure and done his job without fear or favor. I can think of no one in the State of Missouri--and I mean that literally--no one in the State of Missouri that is more deserving of this appointment to the Federal bench than my friend, Ronnie White. Thank you, Mr. Chairman. Senator Durbin. Thank you, Senator McCaskill. Senator Nelson. PRESENTATION OF HON. ROBIN L. ROSENBERG, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Nelson. Mr. Chairman, I cannot help but reflect here, since I have been in front of this Committee many times, that this is a process that works. And it is a process that sets us, the United States, apart from so many other judiciaries around the world. As a result, we get the best, the testimony that you have just heard about the two other judges. And I want to commend Senator Grassley. When he had doubts about a recommendation from the Senators from Florida on a previous nominee, Senator Grassley was kind enough and he was judicious enough to go in and do a thorough examination and to listen to the arguments. So it is a process that works. We in Florida try to make it work even better by taking the politics out of the selection, as Senator Rubio and I have this Judicial Nominating Commission that does all the interviewing and that picks three. And then the President agrees that he will pick from among the three for the Federal District judges. Now, sometimes the process takes a long time, as it has been in the case of Judge Rosenberg today, whereas we had had starts and stops on different vacancies. But the process works. And so I am bringing to you, on behalf of Senator Rubio and me today, a State judge--we call them Circuit Judges--where she has served since 2007. And prior to that, was the partner in a law firm. She started her legal career, as so many of our judges do for the excellent training, as a law clerk. And in this case, it was a Federal District judge. Prior to that, an assistant city attorney, trial attorney in the Civil Rights Division of the Justice Department, capping off an education of a J.D. and an M.A. from Duke and Princeton. Judge Robin Rosenberg is joined by her husband, Michael McAuliffe, and their three children. Where are the children? There you are. And her dad, whom I know personally, Dr. Marvin Rosenberg. And so I bring you an extremely qualified nominee--and thank you all for making this system work. Senator Durbin. Thank you very much, Senator Nelson. Now, from the District of Columbia, Delegate Eleanor Holmes Norton. PRESENTATION OF RANDOLPH D. MOSS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. ELEANOR HOLMES NORTON, A DELEGATE FROM THE DISTRICT OF COLUMBIA Delegate Norton. Thank you very much, Mr. Chairman. My Judicial Nominating Commission had several well- qualified candidates before them. They forwarded them all to me, but Randolph Moss, whom I introduce today, stood out for his exceptionally well-qualified background. Randolph Moss is a partner today in the law firm of Wilmer, Cutler, Pickering, Hale and Dorr. He served for 5 years with the Office of Legal Counsel before President Clinton recommended him and the Senate confirmed him to be the an Assistant Attorney for Legal Counsel in the Office of Legal Counsel. After his service, he returned to Wilmer, Hale as a partner where today he chairs the firm's Regulatory and Government Affairs Department, is a member of its Business Trial Group and its Litigation Controversy Department. Mr. Chairman, Mr. Moss has the kind of background that regularly comes before the United States District Court here, particularly in administrative and constitutional law involving corporate and environmental law, anti-trust, national security, patent law, False Claims Act, contracts and commercial disputes. In his pro bono capacity, he has represented indigent individuals in criminal and civil matters. Mr. Moss is highly regarded in the legal profession, has been recognized by the Chambers USA and Best Lawyers of America, among others. He clerked for U.S. Supreme Court Justice John Paul Stevens. Before that, for Judge Pierre Leval at U.S. District Court for the Southern District of New York. Randolph Moss is a graduate of Hamilton College summa cum laude and Phi Beta Kappa, and of the Yale Law School, where he served as an editor of the Law Review. Mr. Chairman, I think you will agree when you hear from him why his brilliant legal work and distinguished background and reputation led me to recommend him to the President, as I do to you this morning. Senator Durbin. Thank you very much, Delegate Norton. We appreciate your coming over to our side of the Rotunda. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. Before I introduce Andre Birotte, whom I recommended to President Obama, let me first welcome Ronnie White back to the Committee. As I said in 2001, Justice White, I deeply regret what happened with respect to your nomination in the late 1990s. So I just want to say welcome, and to tell you that you have my support. I very much hope that you will be confirmed. PRESENTATION OF ANDRE BIROTTE, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Let me now introduce Andre Birotte, who has earned the ABA's highest rating of Well Qualified. He is here with his wife, Rebecca, and his 7-year-old daughter, Yanick, and his two sons, Andre III and Jean-Pierre. And I know he is a proud family man. We discussed it earlier in his career, and he has just done fine in handling both. He was raised in New Jersey. He earned his bachelor's degree from Tufts in 1987 and his law degree from Pepperdine in 1991. From 1991 to 1994, he served in the Los Angeles County Public Defender's Office, where he represented indigent defendants in more than 30 trials. From 1995 to 1999, he served as an Assistant U.S. Attorney in Los Angeles. From 1999 to 2001, he worked as an associate at the private law firm Quinn Emanuel. In 2001, he became Assistant Inspector General for the Los Angeles Police Department, rising to the position of Inspector General in 2003. Now, the creation of an Inspector General's Office for the Police Commission was one of the recommendations of the Christopher Commission, which was led by late Secretary of State Warren Christopher, and reviewed the performance of the Los Angeles Police Department following the beating of Rodney King in 1991. As Inspector General, Birotte built a strong reputation for fairness, and earned the respect of all sides, including the law enforcement community. In 2009, then-Los Angeles Police Chief Bill Bratton, who is deeply respected on both sides of this Committee, wrote to me to express his, quote, ``strongest endorsement and support,'' end quote, for Birotte. As Chief Bratton said, in the approximately 6 years that I have known Andre, ``Our working relationship has been one of transparency, cooperation, trust and respect,'' end quote. Bratton praised Birotte's judgment as principled and said he had done a commendable job as Inspector General. In 2009, on my recommendation, Birotte was nominated to serve as U.S. Attorney for the Central District of California. He was confirmed on February 11th, 2010. His tenure as U.S. Attorney, candidly, has been a great success. Let me start with national security. As Chairman of the Intelligence Committee, I know that efforts by the U.S. Attorney's Office in this arena often occur behind the scenes, but some of them do result in notable criminal convictions. In one case, Birotte's office secured a conviction and 25- year sentence for a defendant charged with several crimes, including a conspiracy to import surface-to-air missiles. In another case, a pharmacist was convicted of providing money to terrorists with the intent that the money be used to attack U.S. personnel overseas, military personnel overseas. I am very pleased that Andre Birotte, like many U.S. Attorneys, has made national security a top priority. Mr. Birotte's office has also focused on gangs and organized crime. In fact, during Mr. Birotte's tenure, the Office has secured lengthy sentences against members and leaders of several major gang and organized crime organizations all across Southern California. In one case, for example, a street vendor was targeted in a gang shooting which severely wounded the vendor and resulted in the death of a 23-day-old infant. One defendant, a member of the 18th Street Gang, was sentenced to life in prison on racketeering charges. Recent LAPD statistics show a decrease in gang-related crime of 35.5 percent in Los Angeles since 2010. Obviously, this is due to the combined efforts of State, local and Federal law enforcement. Many deserve credit for it, but it is a significant decrease during Mr. Birotte's tenure as United States Attorney. Birotte's office has also been active in protecting Californians against sex crimes and human trafficking. For example, a grand jury indicted eight people, four of which were alleged gang members, quote, ``on charges related to the sex trafficking of teenage girls who were recruited and groomed to work as prostitutes across Southern California,'' end quote. One of those defendants was sentenced to 30 years in prison. He was a gang member who admitted, quote, that he ``used force, fraud and coercion to cause teenage girls to work as prostitutes across Southern California,'' end quote. Prosecutors alleged that he not only used his fists, a cane, a shoe and other objects against the females, but that, quote, ``He also pepper-sprayed one of the victims in her face,'' end quote, and, quote, ``put a gun to the head of one of the victims.'' In another case, Birotte's office secured a 25-year sentence against a man who molested children, photographed the abuse and traded images on the abuse on the Internet. His office also secured a 9-year sentence on a civil rights charge against a police officer who, following a traffic stop, forced a woman into an isolated parking lot and sexually assaulted her. Birotte also created the Public Corruption and Civil Rights Unit of the U.S. Attorney's Office in Los Angeles. Since then, several cases have been brought against local officials alleged to have taken bribes. One major case is pending, I'm sorry to say, against a Democratic California State Senator who is alleged to have taken 100,000 in bribes from a businessman and from people he believed were associated with a Hollywood film studio. Another major and very important case alleges serious misconduct and obstruction of justice by officers in the Los Angeles County jail system. This case is ongoing. Americans rightly hold the law enforcement community and the rule of law in high esteem. In my view, this requires making sure that misconduct, when it does occur, is brought to light and action. I take the time to outline this because I truly believe that Andre Birotte is one of the most outstanding United States Attorneys in this Nation and will be a fine judge. Throughout his career, he has shown a profound commitment to fairness, to the rule of law and to making every decision on the merits. And this has earned him, in a big and often conflicted city, deep respect from communities from all sides of these questions. It is truly amazing. He is supported not only by State and Federal law enforcement, but by the Central District's Federal Public Defender, Sean Kennedy. Kennedy told my selection committee that Birotte has, quote, ``incredible judgment,'' end quote, and would make a, quote, ``wonderful Federal judge.'' I agree. I think he is a 10 who will bring exceptional skill, reputation and integrity to the Federal bench in the Central District. I hope his children are very proud of him, and I urge my colleagues to support him. Thank you, Mr. Chairman. Senator Durbin. Thank you, Senator Feinstein. I would now like to ask the nominees to please come to the witness table and, if they would remain standing for a moment, I will administer the customary oath. Please 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? Mr. Birotte. Yes. Mr. DeGravelles. Yes. Mr. Moss. Yes. Judge Rosenberg. Yes. Judge White. Yes. Senator Durbin. Thank you. Let the record reflect that the nominees have all answered in the affirmative. I will now give each of you a chance to introduce your families and friends who have joined with you today, perhaps give a few words of opening remarks and then submit yourself to a questioning process. Mr. Birotte. STATEMENT OF ANDRE BIROTTE, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA Mr. Birotte. All right. Thank you, Senator Durbin. Senator Durbin and Ranking Member Grassley, I want to thank you and the entire Committee for convening this hearing this morning. I certainly want to thank our home-state Senators, Senator Boxer and Senator Feinstein. Senator Feinstein, I want to thank you for the kind remarks this morning, and I want to thank you, your Judicial Advisory Committee, your statewide chair, David Casey, for not only this nomination here today, but for your support and your trust and confidence in me in your nomination of me as United States Attorney. I certainly want to thank the President, President Obama, for this honor, an honor that my family and I will be eternally grateful for. Speaking of family, I want to introduce, if I may, my family that is here today. My wife, Rebecca. I feel very fortunate that our paths crossed many years ago, because she has brought me joy from that day to the present. My lovely children, Andre III, who is nine; Yanick---- Senator Feinstein. Stand up so we all can see you. Mr. Birotte. Andre, can you stand? My daughter, Yanick, who is seven, and my baby boy, Jean- Pierre. With three children, it is never a dull moment, as one might imagine, including getting them ready to be here this morning. But they bring immense joy to me and in many ways inspire me to be the best that I can be each and every day. I want to also introduce some good friends that are present here today. My very close friend, Lamont Jones, who is present. Lamont and I were associates at Quinn, Emanuel. We have been best of friends ever since. In fact, he is the godfather of Jean-Pierre, and so this trip had the added benefit of reconnecting them. My good friend Henry Kerner, who is here. Henry, he currently serves on the Permanent Subcommittee of Investigations for Senator John McCain. He and I met when we were both baby lawyers, he as a deputy district attorney and myself as a deputy public defender. And despite being on other sides of the aisle and trying cases for over a year, we became and remain best friends to this day, some 20 years later. My brother, Edwin Birotte, in Florida, and my other brother, Patrick Birotte and his wife and my nephew and niece, Chloe and Patrick, couldn't be here, but they are watching via Webcast. And I have a number of friends and relatives that are also watching from the West Coast who got up early this morning, before their workday started, to watch this. And if I could, just want to mention a few names. Certainly my mother-in-law and father-in-law, Ernie and-- North. My sister-in-law, Ashley, and Pete Mejia, Rene and Rachel Cornejo, as well as good friends Chris and Karen Watson, as well as Jim and Jessica Dabney. I also have a number of high school friends and colleagues that are also watching via the Webcast, and I want to thank them all for doing so here today. Certainly last but not least, I want to thank the two people without whom I would not be here, my parents, Dr. Andre Birotte and Graciane Birotte. I am the proud son of these two Haitian immigrants. My parents came over to this country by way of leaving Port-au-Prince to Mexico City, where my parents learned the language there and my father went to medical school there. From there, they went to, of all places, Newark, New Jersey, where my father started and built a successful medical practice and my mother got her teaching credential and started a nursery school that is running to this day. My father, he passed away in 1998, although he was present to witness a personal dream of mine to become an assistant United States Attorney. And my mother, unfortunately passed away unexpectedly from a heart attack in October 2011, but she was there beaming with pride as I was sworn in as the United States Attorney. They are the two individuals that taught me everything I know about hard work, counting your blessings, the importance of an education and giving back to your community. They are in every way, shape and form my role models. So with that, I want to thank you all again, and I am ready to answer any questions you may have. [The biographical information of Mr. Birotte appears as a submission for the record.] Senator Durbin. Mr. deGravelles. STATEMENT OF JOHN WHEADON deGRAVELLES, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA Mr. deGravelles. Good morning, Senator Durbin, Ranking Member Grassley, other Members of the Committee. I want to thank you very much for having this hearing and giving me the opportunity to answer any questions that you may have of me. I want to especially thank Senator Landrieu for her very kind remarks, and both Senator Landrieu and Senator Vitter for their support in this process. I want to thank President Obama for this extreme honor of being nominated and, hopefully, if fortunate enough to be confirmed, to have the opportunity to serve in the Middle District of Louisiana. I have family members here also, Members of the Committee, which I would like to introduce, and some who are not here which I would also like to mention. First and foremost is my wife and the love of my life for 44 years, Jan, who is here with me and without whom, whose support I would simply not be before you today. I have my two children, both of whom are proud members of the legal profession, Neale and Kate. I also want to recognize my three grandsons: Rainier, who is age seven; Emmett, who is age four; and Rhodes, who just turned 1 year old. With me today who flew in from San Francisco is my sister, Ann McBride Norton. Could not be with me is my sister, Claire Cloninger, and my twin brother, Charlie deGravelles. I want to especially also recognize my mother, who is 98 years old and going strong. She is back in Lafayette, looking at this proceeding live. Hi, Mom. [Laughter.] And when we had Mother's Day recently, I told her that she inspires me every day, and she truly does. My father died several years ago. He was also a tremendous inspiration to me, and I know he would be very excited to be here if he were alive, and I know he is also with us in spirit. I have very, very good friends here with me today. Charlie McBride and his wife, Peggy Debell, who have been great friends and of lots of support during this process. Finally, I would like to thank my law firm family back in Baton Rouge, my law partners and the wonderful and talented and hard-working people who help us in our law firm. So thank you all. And thank you, Senators, for this opportunity. [The biographical information of Mr. deGravelles appears as a submission for the record.] Senator Durbin. Thank you. Mr. Moss. STATEMENT OF RANDOLPH D. MOSS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA Mr. Moss. Good morning. Thank you, Chairman Durbin. Thank you, Ranking Member Grassley. I would like to thank the Committee for holding the hearing today, I thank Chairman Leahy and Ranking Member Grassley for scheduling this hearing and Senator Durbin for chairing it today. I thank Senator Feinstein for attending as well. I would like to thank Congresswoman Eleanor Holmes Norton for her very, very kind remarks, as well as for recommending me to the President, and would like to thank the President for the honor of this nomination. I would like to take a minute to introduce the members of my family. My mother, Adrienne Moss, is here today. I am someone who could not be more blessed to have such a wonderful mother, and I appreciate it every day. I am equally blessed by my wonderful wife, Liza, who is here. She is a lawyer at the Department of Justice, serves in the Criminal Appellate section. Unfortunately, my daughter Emily could not be here today; she is 21 years old and studying abroad, and having the time of her life. My son, Will, is here. Will is missing one of the last 3 days of high school to attend today. The last time I was before this Committee, Will was 3 years old. And to my great fortune and, I think, the great fortune of all of us, Will fell asleep in his mother's lap just as the hearing was beginning. But Will has assured me that that will not happen today. My sister, Cindy, is here. She is a neuroscientist, studies echolocation in bats. My brother, Eric could not attend today. He is a lawyer, Senator Durbin, who lives in Chicago. And I would also like to just take a moment to recognize my father, who passed away three and a half years ago. There is not a day that goes by in which we all do not miss my father terribly. I know he would have very much enjoyed being here, and I am very sorry that he is not. And I would just take a minute, just to thank my many friends and colleagues who have taken the time out of their days as well to attend today. So thank you. Thank you, Ranking Member Grassley. Thank you, Senator Durbin. [The biographical information of Mr. Moss appears as a submission for the record.] Senator Durbin. Thank you. Ms. Rosenberg. STATEMENT OF HON. ROBIN L. ROSENBERG, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA Judge Rosenberg. Good morning, Senator Durbin and good morning, Senator Grassley. I am so honored to be here today as a nominee for a U.S. District Court judgeship in the Southern District of Florida, which is my hometown where I grew up and began my career as a lawyer, clerking for a Federal judge right in the U.S. District Court of the Southern District of Florida. I want to thank Senator Nelson and Senator Rubio for their support of me, and I want to particularly thank Senator Nelson for his remarks and acknowledge the long friendship that we have shared, that my family has shared with him over the years. And, of course, I want to thank President Obama for nominating me. I want to thank all of the Members of the Judiciary Committee for holding this hearing. I want to acknowledge some very important people who are here today, and I do not think I would be here without them. It is why I am who I am, I think, and how I got to where I am. So I would be remiss in not acknowledging them. First and foremost, as Senator Nelson had pointed out, my parents are here from Florida, Dr. Marvin and Baylie Rosenberg. They have, throughout their life, at every juncture and every stage, instilled in me a hard-work ethic, a commitment to public service and a drive to do better, and never made me feel that there was something that I could not attain, and I always knew their support was with me. And so it is why I believe I have been able to pursue the things I have in life and to give it 100 percent of who I am and what I have to give. And so I want to thank my parents for being here and for everything they have done for me. Second, with great pride I acknowledge my husband, who is behind me, Michael McAuliffe. We have been married for over 20 years. He has supported me in all of my endeavors. We met here in Washington, DC, at the Department of Justice. He is my rock and sets the standard high for me and my family. He is a well-regarded attorney. He has been a Federal prosecutor. He has been an elected State attorney in Palm Beach County, and he currently is a general counsel in the private sector. Not surprisingly, I have to brag about my children as well. I have three wonderful children, all of whom are here from their various activities and places that they came in from. My oldest is Sydney McAuliffe, who just graduated on Friday from high school, from the Dreyfoos School of the Arts, and will be attending Duke University as a Robertson Scholar next fall. Duke is my alma mater from law school and a graduate degree in public policy. Adin McAuliffe is a sixth grader, 12 years old, who is thrilled that Sydney is going to Duke, because he is an avid lacrosse player and has been enjoying watching the national champions return to the NCAA tournament this year. And Madison McAuliffe, who is a ninth grader at Phillips Academy Andover, also my alma mater, brings such great pride and lights the world on fire with her smile and her intelligence and her athleticism. I also want to acknowledge some friends who have been able to be with--well, I have other family members who could not be here, and want to just acknowledge them as well. I have two younger brothers, Gary Rosenberg, who is a doctor in California, and Jamie Rosenberg, who began Adopt a Classroom, the national program, who is in Miami. They each have three lovely children and together with my family, we are a very close and loving family. Others in the audience who I would like to recognize, long- time friend Richard Ugelow. I began my career at the Department of Justice working with and under Richard in the Civil Rights Division. And Phil Yore [phonetic] is here, and I worked with Phil as well, and I am so delighted that he is here. Other special friends are Eva and Sarah Abraham, who flew in from Florida to be with me. Last, I would like to acknowledge and thank my colleagues in the 15th Judicial Circuit in Palm Beach County, where I do sit as a State Court judge. I want to thank them for their friendship and their support, and all of the other friends and extended family members who could not be here today. I welcome any questions, and I thank you for conducting this hearing and for considering my nomination. [The biographical information of Judge Rosenberg appears as a submission for the record.] Senator Durbin. Thank you very much. Mr. White. STATEMENT OF HON. RONNIE L. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI Judge White. Thank you, Senator Durbin and Ranking Member Grassley. Senator Durbin. Would you turn on your microphone there? There you are. Judge White. Thank you, Senator Durbin and Ranking Member Grassley, for holding this hearing this morning and providing us with the opportunity to appear before you. I would like to thank Senator Claire McCaskill for the kind remarks and for recommending me to the President. And I would also like to thank Senator Roy Blunt for his participation in this process. My son, Ronnie White II, graduated from law school on Sunday afternoon and is attending bar prep in St. Louis this morning, so he could not be here with me. My wife, Sylvia, of 33 years, is at home waiting on the movers to bring back all of those things that left our home 3 years ago when Ronnie went away to school. So she is watching on the Webcast and could not be here. I also would like to say that my law partners are watching on the Web, and a host of friends from Missouri, and they are all excited about my opportunity to appear before this Committee. Thank you. [The biographical information of Judge White appears as a submission for the record.] Senator Durbin. Thank you very much, Mr. White. Senator Grassley. Could I ask questions---- Senator Durbin. Oh. Senator Grassley has a schedule issue, so please proceed. Senator Grassley. I only wanted to ask Justice White questions. I will submit other questions for answers in writing, because I have to be on the floor at 10:45, so I am not even going to be able to go very deep with you, Justice White. But history turned out that you were right in the controversial decision you were involved in the previous time you were before us. I am not going to go through the history of the Roper case, but it does bring up the issue of what you think about precedent of the Supreme Court. And now the Supreme Court has ruled that the execution of younger people is a violation of the Eighth Amendment. So I am going to have two questions and one statement. Before you answer the first question, let me go to the second one. I would like to have you explain your rationale for joining the Missouri Supreme Court majority in Roper, even though binding precedent from the U.S. Supreme Court at that time contradicted the holding of the Missouri Court. And then a statement I would make, that when you joined the majority in Roper, I assume that you were aware the U.S. Supreme Court had denied habeas corpus petition in several cases, in 2002 and 2003, that raised the same arguments that you and the majority of the State Court supported. And then my second question is, given your support for the Missouri Court's decision in Roper, what can you do to assure the Members of this Committee that you are serious about respecting the binding precedence of the U.S. Supreme Court? Judge White. Ranking Member Grassley, regarding the Roper decision, there was a decision handed down by the Supreme Court in Atkins versus Virginia that had ruled that the States would no longer execute people who are mentally retarded and that were found guilty of murder. So we applied that rationale to the Roper case, to say that maybe the national consensus had evolved to a point where they would no longer kill juveniles under the age of 18. Senator Grassley. Well then, the Stanford decision was binding at that particular time, was it not, in addition to the Aiken [phonetic] case? And so I am speaking about the Stanford precedent. Judge White. Yes, it was, sir. Senator Grassley. All right. So then would you summarize for us what you can do to assure the Members of the Committee that you are serious about respecting binding precedence of the Supreme Court? Or, I suppose, what you just told me; you were respecting it at that particular time? Judge White. At that particular time. Senator---- Senator Grassley. Go ahead. Judge White. Senator Grassley, if I am fortunate enough to be confirmed by this Committee, by the Senate, I would follow all binding precedent from the Supreme Court and the Eighth Circuit Court of Appeals, and that would be my role as District Court judge. Senator Grassley. All right, thank you. Thank you, Mr. Chairman. I have to go. Senator Durbin. Thank you very much, Senator Grassley. I will have a question of each of the nominees, and then other written questions may be sent your way. And if you will respond to them in a timely fashion, we would certainly appreciate it. Justice White, it is not often that the Senate gets a do- over. And in your case, it is long overdue. Judge White. Thank you. Senator Durbin. I was new to the Committee when you were first nominated to serve on the Federal District Court, and I can remember in vivid detail your experience. I do not want to dwell on the past. I want to look forward to the future and look forward to supporting you again for the Federal District Court bench. I want to commend Senator McCaskill for nominating you, sending your nomination our way through the President, and also to Senator Blunt, who, as you have noted, participated in bringing you before this Committee. It is a rule of the Committee that a blue slip needs to be signed by both Senators before a person can come before us, and Senator Blunt signed that slip. So at this point, you are here today, at least with the tacit approval of Senator Blunt to move forward in the process. When you were nominated before, the issue that was raised during your nomination related to the support of law enforcement for your nomination to the Federal bench. I note that Chairman Leahy has received a letter on May 13th from the president of the Fraternal Order of Police, Missouri State Lodge, in relation to your nomination. And without objection, it will be placed in the record. I would like to quote from that letter. And it reads, ``From the Missouri Fraternal Order of Police. As the elected representative of over 5,400 law enforcement officers across the State of Missouri, I am urging your Committee to vote out the nomination of Ronnie White for the open judicial seat in the U.S. District Court for the Eastern District of Missouri. We would then be hopeful the Senate confirms his nomination. ``We do not take such stances lightly. As front-line law enforcement officers, we recognize the importance, the need to have jurists such as Ronnie White, who have shown themselves to be tough on crime, yet fair and impartial. As a former Justice of the Missouri Court of Appeals and as a Chief Justice of the Missouri Supreme Court, Ronnie White has proven that he has the experience and requisite attributes to be a quality addition to the U.S. District Court. We can think of no finer or more worthy nominee.'' Judge White, this is a compelling letter from what may be the largest law enforcement organization in your State. Would you please reflect, as an attorney, a judge, a justice on Missouri's Supreme Court and someone with life experience, on the appropriate role of a judge when it comes to dealing with issues of justice, dealing with law enforcement and the protections of our Constitution? Judge White. I believe the role of the judge, Senator, is to apply the law to the facts and to exclude any other personal opinions or prejudices he or she may have, and make the judgment based on what is before them, nothing more, nothing less. Senator Durbin. Would you comment specifically on the issue of the death penalty, which was raised in your previous nomination hearing? Judge White. Senator, during my term as a Supreme Court judge in Missouri, I have written opinions affirming the death sentence. I have concurred in opinions that affirmed the death sentence, and I have also signed the appropriate letters to carry out executions. And I would follow the precedent of the Supreme Court in the Eighth Circuit as it relates to the death penalty. Senator Durbin. I thank you for that. Mr. Birotte, I cannot recall a more positive introduction by a Senator of a nominee than Senator Feinstein's introduction of your nomination. You have served on both sides of the table in the courtroom. There are many people who, walking into a court, look up at that judge and think, ``I do not have a chance. This system is rigged against me. I am poor; I am a minority; I do not have the best attorney; I do not have any wealth.'' What is your message to that defendant looking up to the potential of a Judge Birotte? Mr. Birotte. Thank you, Senator Durbin. I think the message that I would hope, if I were fortunate enough to be confirmed, is that I would provide a courtroom that was a forum where anyone, regardless of background, ethnicity, wealth, what have you, would receive a fair and full hearing in the courtroom, with a well-reasoned, well-researched decision. And so for any individual, I would hope that they would feel that they would get a fair hearing. Having served on both sides of the aisle, if you will, as a defense lawyer, prosecutor, civil practitioner and then as inspector general, I like to think that that background and experience would prepare me well for an opportunity to serve on the bench and would afford individuals the sense that I would be completely fair and they would get a fully hearing. Senator Durbin. One of the things you undoubtedly experienced, as many of us who practice have experienced, is that some judges with lifetime appointments become imperial and believe they are beyond reach of ordinary human beings. How do you maintain the dignity of the bench and yet the approachability of a system of justice? Mr. Birotte. Well, I like to think that my background and my reputation would speak to that issue. I have always maintained the view that while I am certainly fortunate to have the positions that I had, I am a human being and I am no different than any other individual that I deal with. I may have a title, per se, but I have a background and experience that helps me relate to other human beings. And so I would like to think that if I were fortunate enough to be confirmed as a District Court judge, that would always remain with me. Those experiences representing individuals, indigent defendants, prosecuting individuals, working within the Los Angeles City and dealing with the various communities throughout that very large city, I think would help keep me grounded, if I were fortunate enough to be confirmed. Senator Durbin. Thank you. Mr. deGravelles--did I pronounce that correctly? Mr. deGravelles. Yes, Senator. Senator Durbin. After 6 years of French, I ought to get something right. [Laughter.] I find it amazing in your background that you have taken 45 cases to trial by jury and participated in hundreds, overall. You are truly a trial attorney, which is a rarity these days. Most trial attorneys seldom have a trial, and you have had many in the course of your life. You are engaged in litigation now, as you approach this nomination. And you have been before many judges and juries. What is your observation on the role of the judge and the best judge in that circumstance? Mr. deGravelles. Well, there is certainly a fundamental difference, as you know, Senator, from the role of the advocate versus the role of the judge. The advocate has to zealously put forth his client's position. Bit when you become a judge, it is an entirely different matter. You are there to serve everyone in the courtroom, both sides of the courtroom. And I believe that integrity best describes what a judge should be. And by that, I mean not just fairness and not just honesty, but approaching every issue, every case, with an open mind, no preconceived agenda, no preconceived idea of who should win or lose, and simply applying the binding precedent to the facts in the case. Senator Durbin. Would you say that most of your work in the trial court has been as a plaintiff's attorney? Mr. Birotte. Yes, it has, Senator. Senator Durbin. And I note that you are currently involved in litigation related to the 2010 Deepwater Horizon oil rig fire that led to 11 deaths in the oil spill in the Gulf of Mexico. This litigation involves thousands of claimants seeking compensation for injury, property damage and economic loss. You have also represented the family, I believe, of one of the men who was killed on the rig. Mr. Birotte. Yes, sir. Senator Durbin. Could you give us kind of a background or a discussion on this case and your involvement? Mr. Birotte. A very, very tragic case, of course, Senator. It is the largest natural environmental disaster in the history of this country, and it has led to, I think, one of the largest pieces of litigation in trials in the history of our country. So it is a tragedy, but out of that tragedy I think that the United States District Court for the Eastern District of Louisiana has done a magnificent job of taking an incredibly complicated case, lots of different kinds of laws--as you just mentioned, really hundreds of thousands of claimants, legions of lawyers and so all sorts of issues, and has done a magnificent job of being able to marshal all of that in a way which I think is progressing forward This particular judge vowed at the beginning of this case that he was not going to allow this to be the Exxon Valdez, which took some 20 years to get finally to the end of the resolution. So while this case is not close to being over yet, I think it is really a model in terms of complex litigation and how a judge can and should handle an extremely difficult and complicated case. Senator Durbin. Thanks. Mr. Moss, you have got quite a background. But one of the things in your background stands out, as you might expect, representing the great city of Chicago, and that is your clerkship for Supreme Court Justice John Paul Stevens. Could you comment on that experience and what you learned? Mr. Moss. Thanks for the question, Senator. It was an absolutely wonderful experience, and I have to say that I have been extremely fortunate in both of the clerkships that I had. It is hard to imagine sort of a better path. I was able to actually clerk on the District Court for Pierre Leval, who was one of the great, at that time, District Court judges in the country--he is currently on the Court of Appeals--and got to see how the District Court worked, and learned about that process from a real master in the process. And then had the privilege to go on from having clerked on the District Court and clerking for the Supreme Court for Justice Stevens. And I often tell people the story when I went down to interview with Justice Stevens and I convinced myself going into the interview that there was no way I was going to get the job because it was the easiest way to deal with the stress. And I remember going back on the train back to New York afterwards and thinking to myself, ``I am really disappointed I am not going to get this job, because I liked him so much. He was such a decent human being.'' And I think that one of the things that I very much learned from Justice Stevens that I think is very important just in judges in general is the sense of humility, and that he is a public servant, was a public servant, somebody who approached every case and gave it his absolute best, not only to reach the right decision in each case, but to explain why he reached that decision in the case. So it is hard to imagine someone who has been as lucky to have clerked for two such wonderful judges. Senator Durbin. Mr. Moss, last year you signed on to an amicus brief in the case of U.S. versus Windsor. This was a case in which the Supreme Court struck down the Defense of Marriage Act. Your brief, which was joined by several former solicitors general and White House counsels, as well as other former senior Department of Justice officials, argued that it was proper for the Court to exercise jurisdiction to resolve a case in which the executive branch enforces a law but refuses to defend the law in court. Since this was such an anomaly, this is so rare in our history, tell us about that brief and your decision to sign it. Mr. Moss. Thank you, Senator Durbin. It is rare, where the executive branch decides to enforce a law but not defend it. And it is appropriately rare in the overwhelming majority of cases the Department of Justice does decide to defend cases and will make whatever reasonable arguments it can in defense of the constitutionality of a statute. The point that we were making in the brief, and as you noted, it was a bipartisan group that signed on to the brief, was that the Court should exercise jurisdiction in a case like that. Because if the Court did not exercise jurisdiction, then it left it to the executive branch alone to decide on the constitutionality of the statute. In our view, it was preferable to have a world in which it was the courts that would ultimately have the authority, and the Supreme Court that would ultimately have the authority, to decide on the constitutionality of the statute. Senator Durbin. Thank you. Judge Rosenberg, you too have had an amazing career in the practice of law. And I will not read through all of the things that you have done, but I will note that while you were working in private practice at several major law firms, at one point before assuming the bench in Florida, you served as a mediator. There seems to be a growing trend in American jurisprudence toward mediation and arbitration as an alternative to litigation. What does that say about our system of justice, and those who would like to avail themselves of it but think there are better alternatives? Judge Rosenberg. Sure. Thank you, Senator Durbin, for the question and thank you for asking me about a topic, actually, that I feel so strongly about. Not only was I a certified mediator, but actually began a mediation company in Palm Beach County that had about 25 or 28 mediators who worked as independent contractors--many of whom, by the way, were retired judges who were serving as mediators. And that also is a common trend. Many judges then go on to mediate. In the State of Florida, mediation is a requirement, so no case actually can go to trial in the State before it goes to mediation. And that too has become a growing trend throughout the country. It does not speak less of our judicial system, but what it does show is that there are meaningful alternative ways to resolve disputes. I think anyone who has been in a courtroom, whether as a judge or as a seasoned trial attorney or U.S. attorney, knows the stresses, the burdens, the length of time, the cost, the toll that litigation can take on individuals and entities. And to have an alternative like mediation where parties can come together, where communication channels are open that otherwise perhaps have not been opened when litigation becomes very adversarial, is a very, very important process and oftentimes leads to resolution with less cost, with less stress, with less burden on the courts. Certain cases can only be resolved in court. And if we can find a way in which more cases can be resolved through mediation--which is a voluntary process, so the parties have to want to do it; they have to go to mediation, but no one is compelling them to resolve--but they begin to see things about their case in ways that perhaps they had not thought about before. And they begin to communicate with the other side, whether directly or through the mediator; that is a very, very important component of the entire litigation process, and I firmly believe in it. Senator Durbin. So let me ask you about the other side of that coin, the arbitration process, where many people may not even realize that they have signed away, in many contractual relationships, their right to go to court. And obviously there are some who believe that it is to their advantage not to put a question before a judge or a jury. What do you think of that aspect? Judge Rosenberg. I think that that is a very good question, and I thank you for that. I have been in the position, both in my practice of law as an employment lawyer, many contracts that are entered into have arbitration provisions. So I am well familiar with how a provision is put into a contract and to whose advantage one might perceive that to be. And also there has been a lot of litigation, even in State court, on the enforceability of arbitration provisions. And many times arbitration provisions are not upheld, because they are found to be unconscionable. They are either substantively or procedurally found to be deficient. And so there are checks and balances, I believe, in place to ensure that there is an equal playing field so that when one enters into a contractual provision to sign away, if you will, their important rights to have a day in court--and that is everyone's right--that they do so knowingly, voluntarily and intelligently. Senator Durbin. Justice White, many lawyers are critical of judges for taking way too long to reach a decision, and that is what leads them to alternatives, in looking for mediation or some other approach. I do not know if that reflects the caseload. Maybe it does, in some cases that the judges face, the nature of the judge's decision process, or just fear of taking on something controversial. What has been your experience? Judge White. It---- Judge Rosenberg. Oh, I am sorry. Was that directed to me? Senator Durbin. Judge--I will come back to you, but Justice White. And then I will come back to you, Judge Rosenberg. Judge Rosenberg. All right. Judge White. My experience, Senator, has been all of the items you just listed go into the factoring of why judges take so long to rule. But it would appear to me that if a judge is actively involved in the case early on, it could lessen some of that at the end, because they would have monitored the process of the case throughout the time it was in their court docket system. So I think if a judge is actively involved, has rule 16 hearings, watch out for what is happening on case management, roll up his or her sleeves and decide motions immediately or shortly after they are filed, that those cases can proceed and get through to trial or some kind of resolution. Senator Durbin. Judge Rosenberg? Judge Rosenberg. Sorry for jumping in. I think that access to courts is so vitally important. And encompassed in access to court is the timeliness of a court's ruling. A judge is there to not only make the substantive ruling, but to manage a docket and to ensure that cases move along. In the State court, our caseload is very high. So I have been in a civil division in Florida that has had upwards of 900 cases; a foreclosure division that has had 15,000 cases; and now a criminal division that has about 900 cases, with 200 new cases coming in every single week. And so managing the caseload is a very, very important job, I believe, of a judge. And a judge needs to know his or her cases. And you can do that in many ways, calling case management conferences, issuing a scheduling order. Being involved in the case and knowing that the case needs to move along in a timely fashion is, I think, very, very important so that people who need to have their matters heard do have them heard within a reasonable time period. Senator Durbin. Mr. Birotte, it was about 30 years ago that the Congress and President decided to impose mandatory minimums in the sentencing process in Federal courts. And one could argue that as a result of that, the Federal prison population has increased 500 percent in the last 30 years, leading to the point where the United States has more people in prison per capita than any nation on Earth. We are reviewing that now. In fact, this Judiciary Committee recently took up a bill that I have worked on with my Republican colleagues on the issue of mandatory minimums. You faced this issue as a defense attorney in some fashion, but you certainly faced it as a U.S. Attorney and now may face it as a member of the Court. What are your thoughts? Mr. Birotte. Well, obviously, as you mentioned, you have been proactive in this. The Attorney General has spoken on this issue. As an employee of the Department of Justice, our job is to enforce and act out the will of the Attorney General. As a District Court judge, my role would be to follow the precedent, whatever the rule of law is at the time. If the sentencing guidelines change or if there is a reduction in those, I would apply those and I would make sure that I stay consistent in that regard. Senator Durbin. So I am asking you to reflect on your experience as U.S. Attorney, because you were at a different point in the process, and you had mandatory minimums on your side as a prosecutor. We have in Illinois something known as the Illinois Innocence Project, which has successfully found many cases where people were wrongly convicted. And many times they pled to crimes that they did not commit. They feared going in to a courtroom, sometimes a black defendant facing an all-white jury, sometimes facing a mandatory minimum that was awful in terms of its length and duration. Reflect on that as U.S. Attorney in how you view that issue. Mr. Birotte. As U.S. Attorney, we have been very proactive in looking precisely at that issue. That is why the Attorney General has issued his Smart on Crime Initiative. In his remarks outlining the Initiative, he points to a program that we have in our district. It is called the Conviction and Sentencing Alternative Program, where we look at individual cases, individual defendants and their individual circumstances and, where appropriate, we determine if there were some other outlying circumstances that led them to this path. So, for example, if someone has a drug or narcotics or alcohol addiction, we can get them into a program that will help deal with those issues and perhaps, if they complete the program, will either rid of that conviction or reduce the sentence in that program. In fact, I just spoke at our fourth graduation of that program. It is something that I have been committed to as U.S. Attorney, and I have always thought that it is important to look at our sentencing system to make sure that we are utilizing it in cases that have the biggest impact on the most deserving defendants. Senator Durbin. Mr. Moss, one of the things we are finding, more at the State level than Federal, are special courts-- veterans' courts, drug courts. And what they are basically trying to do is to find some other avenue of justice that has a better outcome and really gives a person a better chance than they might have in the ordinary criminal justice system as we know it. What are your thoughts on that? Mr. Moss. Thank you, Senator. That is not an issue that I have focused on in the past. I do think that it is important that, really more as a matter of policy than as a judge, that people analyze how best to dispense justice and look for the opportunities to do so. As a judge, though, of course, the obligation will be to simply decide the cases that fall within your jurisdiction, as has been defined by the Congress. And if I am fortunate enough to be confirmed, that is what I would do. Senator Durbin. Thank you. Mr. deGravelles, I want to return to that issue of mediation and arbitration, because I think that might be something of interest in your practice. Mr. deGravelles. Yes, it is, Senator. All experienced trial lawyers have seen, over the years, an evolution in the mediation realm. And when I started practicing law, it was the old-fashioned way of writing a letter to the adjustor, picking up the phone and negotiations went on and on and on endlessly. So while I am a trial lawyer, I also recognize the value of mediations. And in the context of a United States District Court judge, I think some of these judges have been very wise to assign to the magistrates in their courts the duty to encourage settlement, to involve the parties in settlement discussions and mediations. Because in terms of case management, that is oftentimes a very fair and a very efficient way to resolve cases. So I think mediation is very much in vogue and, I think, rightly so. Senator Durbin. The last question I will have relates to community service and pro bono work. As a profession, lawyers, I think, have a special responsibility in that regard. And I would like each of you, if you would reflect for just a moment on something that you have been involved in, a case or a cause involving pro bono work in your career. Mr. White. Judge White. Over the course of my career, I have been involved in a number of pro bono actions. Right now, I am a member of the Guardian Angels Settlement Association Board in St. Louis, which is a social service agency that helps underprivileged children get started in life with housing, education and food and stuff like that. I have also participated as a coach of Little League baseball, football, soccer, and I think that is important. So that is what I have done in my career. Senator Durbin. Judge Rosenberg. Judge Rosenberg. I, for the past seven or 8 years, have not been able to sit on boards and to be active in the community in the same ways that I was before I became a judge, because of the ethical constraints placed on a judge. Prior to becoming a judge, some of the endeavors that I was most interested and active in were a program called the Children in Crisis, to help children in need of services. The Cystic Fibrosis Foundation, a very close friend of mine has died of Cystic Fibrosis and I have devoted a great deal of my time, before I became a judge, to starting an organization in memory of him. So those are some of the activities prior to becoming a judge that have been important to me in my community, as well as my children's schools and their activities as well, of course. Senator Durbin. Mr. Moss. Mr. Moss. Thank you, Senator Durbin. Over the course of my career, I have been involved in a broad range of pro bono matters, both involving civil law as well as criminal law. One of the observations I would have about pro bono, if it is someone who is practicing in a law firm, is that it is not only of a great service to the community, but it actually is a great service to the younger lawyers in the law firm, to give them the opportunity to obtain experiences that they might not be able to obtain in very large, complex, paying cases. So I think that is another important aspect of pro bono work. Senator Durbin. Mr. deGravelles. Mr. deGravelles. Yes, Senator, as Senator Landrieu mentioned in the introduction, following Katrina, Hurricane Katrina, we had many, many lawyers whose homes were destroyed, whose offices were destroyed, whose files were destroyed. They were entirely displaced and looking really to survive professionally. And so I headed a committee at the Louisiana Association of Justice to assist in finding places for these folks to live, finding places for them to practice and helping to rebuild their practices and, really, in the circumstance of their lives as well. In addition, I volunteered to be a pro bono attorney in a post-conviction proceeding for a death row inmate at Angola, Allen Robertson, and for six or 7 years participated actively in his post-conviction proceedings. In fact, we were encouraged to do it as civil lawyers because there was a lack of public defender-type resources to really do the kind of job that these folks deserved. Senator Durbin. I might just add, before I ask Mr. Birotte the same question, we recently had a hearing on segregation and solitary confinement. One of the witnesses had been on death row at Angola for 15 years before he was released and exonerated for the charges. He would not be alive today, were it not for his attorney, who begged him not to give up at the very end. And now he is back leading a life. So it can make a significant difference. Mr. Birotte. Mr. Birotte. Senator Durbin, as Inspector General and as United States Attorney, I have been limited somewhat in their traditional pro bono activities. But what we have tried to do, certainly in my time as U.S. Attorney, is to make sure and translate that, if you will, to a very extensive community outreach campaign. We have hosted a host of summits and seminars to educate the residents of our district on the various crimes, scams, et cetera, to educate them. But one program that I think was innovative in our office that we did to connect with our community is our participation in what is known as a Summer Night Lights program. Every summer the Los Angeles Unified School District--or the city of Los Angeles, I should say--opens parks. The statistics have shown that crime spikes during the summer months between Thursdays and Sundays, and the city took a leadership role in opening parks from 6 p.m. till midnight on those days to provide a forum where the community could engage and have a safe venue. I participated in that program and got our office to participate in that program over the last several years, and we have adopted a park in South Los Angeles where Assistant United States Attorneys and the staff of our office go out there every Thursday night, cook hamburgers, hot dogs, engage in reading circles, face painting. In fact, this past summer we started a tennis clinic, and it was so successful that every Thursday evening we had lines of more than 30 or so young folks and adults wanting to learn how to play tennis. And it allowed us an opportunity to connect with the community in a way that they were not used to. In fact, I often tell the story of being out there during the summer months and speaking with individuals. And we do not really fly the flag, if you will, and tell folks what we do. But someone asked, ``What do you do?'' And I said, ``I am a lawyer.'' ``Where do you work?'' ``At the Department of Justice.'' And his reaction was, ``I thought all you all do is put us in jail.'' And my response was, ``We do do that, and we do it well.'' [Laughter.] ``But we also believe in the importance of engaging in our community so that they see us in a different light.'' Senator Durbin. Thanks. Thanks to the nominees and your family and friends in attendance today. We will keep the record open for a week. You may have a question come your way, and if you have any other additional letters or statements and such, they will be entered in the record during that period. I thank you all for being here today, and this Committee will stand adjourned. [Whereupon, at 11:12 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 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] [all]