[Senate Hearing 113-515, Part 4]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Part 4
CONFIRMATION HEARINGS ON FEDERAL
APPOINTMENTS
=======================================================================
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 10, JULY 24, AND SEPTEMBER 11, 2013
__________
Serial No. J-113-1, Part 4
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
RICHARD 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
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Staff Director
C O N T E N T S
WEDNESDAY, JULY 10, 2013
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from The State of Vermont. 6
prepared statement........................................... 227
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 7
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 9
PRESENTERS
Warner, Hon. Mark R., a United States Senator from the State of
Virginia, presenting Patricia Ann Millett, Nominee to be
Circuit Judge for the District of Columbia Circuit............. 1
Kaine, Hon. Tim, a United States Senator from the State of
Virginia, presenting Patricia Ann Millett, Nominee to be
Circuit Judge for the District of Columbia Circuit............. 3
Cochran, Hon. Thad, a United States Senator from the State of
Mississippi, presenting Debra M. Brown, Nominee to be District
Judge for the Northern District of Mississippi................. 4
Wicker, Hon. Roger, a United States Senator from the State of
Mississippi, presenting Debra M. Brown, Nominee to be District
Judge for the Northern District of Mississippi................. 5
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, presenting Gregory Howard Woods, Nominee to be District
Judge for the Southern District of New York, and Elizabeth A.
Wolford, Nominee to be District Judge for the Western District
of New York.................................................... 96
STATEMENTS OF THE NOMINEES
Millett, Patricia Ann, Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 12
Biographical Information..................................... 13
Woods, Gregory Howard, Nominee to be District Judge for the
Southern District of New York.................................. 98
Biographical Information..................................... 99
Wolford, Elizabeth A., Nominee to be District Judge for the
Western District of New York................................... 135
Biographical Information..................................... 136
Brown, Debra M., Nominee to be District Judge for the Northern
District of Mississippi........................................ 181
Biographical Information..................................... 182
QUESTIONS
Questions for all nominees submitted by Senator Ted Cruz......... 228
Questions for Patricia Ann Millett submitted by Senator Chuck
Grassley....................................................... 229
Questions for Gregory Woods submitted by Senator Chuck Grassley.. 234
Questions for Elizabeth Wolford submitted by Senator Chuck
Grassley....................................................... 237
Questions for Debra M. Brown submitted by Senator Chuck Grassley. 239
ANSWERS
Responses of Patricia Ann Millett to questions submitted by
Senator Cruz................................................... 241
Responses of Patricia Ann Millett to questions submitted by
Senator Grassley............................................... 245
Responses of Gregory Woods to questions submitted by Senator Cruz 259
Responses of Gregory Woods to questions submitted by Senator
Grassley....................................................... 262
Responses of Elizabeth Wolford to questions submitted by Senator
Cruz........................................................... 269
Responses of Elizabeth Wolford to questions submitted by Senator
Grassley....................................................... 272
Responses of Debra M. Brown to questions submitted by Senator
Cruz........................................................... 276
Responses of Debra M. Brown to questions submitted by Senator
Grassley....................................................... 279
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Ashley N. Wicks, Magnolia Bar President, Magnolia Bar
Association, Jackson, Mississippi, July 15, 2013, letter....... 283
Reuben V. Anderson and Fred Banks, Jr., Phelps Dunbar, Jackson,
Mississippi, July 17, 2013, letter............................. 284
Azande W. Williams, Treasurer, Metro Jackson Black Women Lawyers
Association, Jackson, Mississippi, July 17, 2013, letter....... 286
Michael A. Berk, Director, School of Architecture, Mississippi
State University, July 15, 2013, letter........................ 287
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, May 17, 2013, letter....................................... 288
Robin S. Conrad, Past Executive Vice President, National Chamber
Litigation Center, June 24, 2013, letter....................... 290
Floyd Abrams, Eric Angel, Jeffrey A. Bartos, Stuart M. Benjamin,
James A. Bensfield, Dori Bernstein, Tim Broas, Megan L. Brown,
Thomas M. Buchanan, Kathryn Buchar, Plato Cacheris, Ty Cobb,
Ronald K.L. Collins, Robert Corn-Revere, Mark S. Davies, David
DeBruin, Bernard J. DiMuro, Viet D. Dinh, John M. Dowd, H.
Bartow Farr, Jeffrey L. Fisher, Stuart M. Gerson, Scott D.
Gilbert, Steven H. Goldblatt, J. Warren Gorrell, Jr., Thomas C.
Green, Jeffrey T. Green, Ross Guverman, Jonathan Hacker, Adam
S. Hakki, James Hamilton, Pamela Harris, Beth Heifetz, David
Honig, John Hundley, William H. Hurd, Peter B. Hutt II, Phil
Inglima, Vicki C. Jackson, Michael D. Jones, Vernon E. Jordan,
Jr., Riyaz Kanji, Robert Kaplan, Pamela S. Karlan, Judith S.
Kaye, Christine N. Kerns, Ben Klubes, Kim Koopersmith, Kathryn
E. Kovacs, Martin Lederman, Michael N. Levy, Emmett B. Lewis,
III, Timothy K. Lewis, Robert M. Loeb, Mark MacDougall, Andrew
H. Marks, Lisa T. McElroy, Bruce R. McLean, Paul R. Michel,
Steven Molo, Monica T. Monday, Gary P. Naftalis, Danny Onorato,
Gary A. Orseck, Spencer A. Overton, Aaron M. Panner, Anthony T.
Pierce, Arti K. Rai, Bert Rein, Lawrence S. Robbins, Michele A.
Roberts, E. Joshua Rosenkranz, Kevin Russell, Amar D. Sarwal,
David Schertler, Eric Schnapper, James E. Sharp, Anthony
Shelley, Eric A. Shumsky, Jonathan R. Siegel, Neil S. Siegel,
Paul M. Smith, Mary Lou Soller, Gloria Solomon, Grace E.
Speights, Kim Sperduto, Danielle Spinelli, Beth Stephens, Cate
Stetson, Brendan V. Sullivan, Jr., Kathleen M. Sullivan,
William W. Taylor, Dick Thornburgh, John B. Tieder, Jr.,
Laurence H. Tribe, Gloria C. Tristani, Rebecca K. Troth, Bob
Trout, Alan E. Untereiner, Stephen I. Vladeck, Roger E. Warin,
Jonathan M. Weisgall, Stephen Wermiel, John M. Whealan,
Benjamin F. Wilson, Nancy Winkelman, Brian Wolfman, Emily M.
Yinger, Hugh F. Young, Jr., Roger E. Zuckerman, July 2, 2013,
letter......................................................... 292
Jefferson Keel, NCAI President, National Council of American
Indians, July 2, 2013, letter.................................. 302
Barbara A. Arnwine, Executive Director and Jon M. Greenbaum,
Chief Counsel, Lawyers' Committee for Civil Rights Under Law,
Washington, DC, July 3, 2015, letter........................... 304
Stuart W. Bower, Jr., July 2, 2013, letter....................... 306
Seth P. Waxman, former Solicitor General, July 3, 2013, letter... 308
Dan Schweitzer, Supreme Court Counsel for the National
Association of Attorneys General, Bethesda, Maryland, July 3,
2013, letter................................................... 310
Lisa Soronen, Executive Director, State and Local Legal Center
(SLLC), July 3, 2013, letter................................... 312
Jessica E. Adler, President, Women's Bar Association of the
District of Columbia, Washington, DC, July 8, 2013, letter..... 314
Silvia Burley, Chairperson, California Valley Miwok Tribe,
Stockton, California, July 8, 2013, letter..................... 317
Leonard Forsman, Chairman, The Suquamish Tribe, Suquamish,
Washington, July 8, 2013, letter............................... 318
Carl H. McNair, Jr., Major General, U.S. Army (RET), Springfield,
Virginia, July 8, letter....................................... 319
Lilly Ledbetter, July 8, 2013, letter............................ 320
Hon. Timothy K. Lewis, Washington, DC, July 8, 2013, letter...... 322
Carter G. Phillips and Peter D. Keisler, July 8, 2013, letter.... 324
David Bernhard, Judicial Screening Committee, Hispanic Bar
Association of the Commonwealth of Virginia, Richmond,
Virginia, July 9, 2013, letter................................. 325
Chuck Canterbury, National President, Fraternal Order of Police,
Washington, DC, July 9, 2013, letter........................... 331
David Diaz, Co-Chair, Endorsements Committee, Hispanic Bar
Association of the District of Columbia, Washington, DC, July
9, 2013, letter................................................ 332
Donald B. Ayer, Lisa Blatt, Richard P. Bress, Louis R. Cohen,
Edward C. DuMont, Roy Englert, Mark Evans, H. Bartow Farr, III,
James S. Feldman, David C. Frederick, Irving L. Gornstein,
Douglas Hallward-Driemeier, Toby Heytens, Dan Himmelfarb, Alan
Horowitz, William M. Jay, Alan Jenkins, Neal Katyal, Michael K.
Kellogg, Jeffrey A. Lamken, Paul J. Larkin, Jr., Richard J.
Lazarus, Michael R. Lazerwitz, Robert A. Long, Maureen E.
Mahoney, Ronald Mann, Deanne E. Maynard, Carter G. Phillips,
Andrew J. Pincus, Lawrence S. Robbins, Charles A. Rothfeld,
David B. Salmons, Richard H. Seamon, Stephen M. Shapiro,
Barbara D. Underwood, Paul R.Q. Wolfson, Christopher J. Wright,
July 9, 2013, letter........................................... 334
Chuck Wexler, Executive Director, Police Executive Research
Forum, Washington, DC, July 9, 2013, letter.................... 337
John E. Page, President, National Bar Association, Washington,
DC, July 10, 2013, letter...................................... 338
John E. Echohawk, Executive Director, Native American Rights
Fund, Washington, DC, July 11, 2013, letter.................... 339
Maryse C. Allen, President, Virginia Women Attorneys Association,
July 17, 2013, letter.......................................... 341
Judith E. Schaeffer, Vice President, Constitutional
Accountability Center, Washington, DC, July 17, 2013, letter... 343
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 4, 2013, Millett letter............................... 345
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, May 17, 2013, Wolford letter............................... 347
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, May 14, 2013, Woods letter................................. 349
WEDNESDAY, JULY 24, 2013
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 351
prepared statement........................................... 691
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 355
PRESENTERS
Baucus, Hon. Max, a U.S. Senator from the State of Montana,
presenting Brian Morris, Nominee to be District Judge for the
District of Montana, and Susan P. Watters, Nominee to be
District Judge for the District of Montana..................... 353
Shaheen, Hon. Jeanne, a U.S. Senator from the State of New
Hampshire, presenting Landya B. McCafferty, Nominee to be
District Judge for the District of New Hampshire............... 358
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut, presenting Jeffrey Alker Meyer, Nominee to be
District Judge for the District of Connecticut................. 359
STATEMENTS OF THE NOMINEES
Pillard, Cornelia T.L., Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 362
Biographical Information..................................... 364
Morris, Hon. Brian, Nominee to be District Judge for the District
of Montana..................................................... 447
Biographical Information..................................... 448
Watters, Hon. Susan P., Nominee to be District Judge for the
District of Montana............................................ 503
Biographical Information..................................... 504
Meyer, Jeffrey Alker, Nominee to be District Judge for the
District of Connecticut........................................ 556
Biographical Information..................................... 557
McCafferty, Landya B., Nominee to be District Judge for the
District of New Hampshire...................................... 626
Biographical Information..................................... 627
QUESTIONS
Questions for all nominees submitted by Senator Ted Cruz......... 693
Questions for Cornelia Pillard submitted by Senator Chuck
Grassley....................................................... 694
Questions for Cornelia Pillard submitted by Senator Jeff Sessions 703
Questions for Brian Morris submitted by Senator Chuck Grassley... 707
Questions for Susan P. Watters submitted by Senator Chuck
Grassley....................................................... 710
Questions for Jeffrey Alker Meyer submitted by Senator Chuck
Grassley....................................................... 713
Questions for Landya B. McCafferty submitted by Senator Chuck
Grassley....................................................... 716
ANSWERS
Responses of Cornelia Pillard to questions submitted by Senator
Grassley....................................................... 718
Responses of Cornelia Pillard to questions submitted by Senator
Sessions....................................................... 741
Responses of Cornelia Pillard to questions submitted by Senator
Cruz........................................................... 749
Responses of Brian Morris to questions submitted by Senator
Grassley....................................................... 753
Responses of Brian Morris to questions submitted by Senator Cruz. 761
Responses of Susan P. Watters to questions submitted by Senator
Grassley....................................................... 764
Responses of Susan P. Watters to questions submitted by Senator
Cruz........................................................... 770
Responses of Jeffrey Alker Meyer to questions submitted by
Senator Grassley............................................... 772
Responses of Jeffrey Alker Meyer to questions submitted by
Senator Cruz................................................... 781
Responses of Landya B. McCafferty to questions submitted by
Senator Grassley............................................... 784
Responses of Landya B. McCafferty to questions submitted by
Senator Cruz................................................... 790
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
William T. Coleman, Jr., Senior Partner and Senior Counselor,
O'Melveny and Myers LLP, Washington, DC, June 4, 2013, letter.. 793
John M. Townsend, Partner, Hughes Hubbard and Reed LLP, July 8,
2013, letter................................................... 795
William S. Sessions, Former Chief Judge, U.S. District Court for
the Western District of Texas, Former Director, Federal Bureau
of Investigation, Washington, DC, July 9, 2013, letter......... 797
Richard Bierschbach, Harold Bruff, Jonathan Cedarbaum, Walter E.
Dellinger, Joseph R. Guerra, Pamela A. Harris, Clare
Huntington, Dawn E. Johnsen, Martin S. Lederman, Robin
Lenhardt, Randolph D. Moss, Trevor Morrison, Beth Nolan, Todd
Peterson, H. Jefferson Powell, Jeannie S. Rhee, Teresa Wynn
Reseborough, Richard Shiffrin, David A. Strauss, William M.
Treanor, Jay Wexler, July 17, 2013, letter..................... 799
Dean William M. Treanor, Georgetown University Law Center,
Washington, DC, July 17, 2013, letter.......................... 802
Robin Abrams, Martha Boersch, Jeffrey Bornstein, Sean Coffey,
Miles Ehrlich, Jamie Gorelick, Michele Hirshman, Matthew
Jacobs, David Kris, Carl H. Loewenson, Jr., Daniel Marcus, Mark
Matthews, Julie Rose O'Sullivan, David W. Ogden, Richard
Olderman, Lisa Kate Osofsky, Karen Popp, Ismail Ramsey, Stephen
C. Robinson, Paul Rosenzweig, John Savarese, Howard Shapiro,
Paul Shechtman, Mark Stein, Beth Wilkinson, July 17, 2013,
letter......................................................... 804
Donald B. Ayer, J. Scott Ballenger, H. Christopher Bartolomucci,
Lisa S. Blatt, Richard P. Bress, Louis R. Cohen, Drew S. Days
III, Walter Dellinger, Edward C. DuMont, H. Bartow Farr III,
James A. Feldman, Jeffrey Fisher, David C. Frederick, Jerrold
J. Ganzfried, Irv Gornstein, Michael H. Gottesman, Jonathan D.
Hacker, Mark E. Haddad, Pamela S. Karlan, Neal Katyal, Stephen
B. Kinnaird, Jeffrey A. Lamken, Richard J. Lazarus, Robert A.
Long, Ronald Mann, Alan B. Morrison, Carter G. Phillips, Andrew
J. Pincus, Lawrence S. Robbins, Charles A. Rothfeld, Kevin
Russell, Paul M. Smith, Catherine E. Stetson, Kathleen M.
Sullivan, Laurence H. Tribe, Barbara D. Underwood, Lawrence G.
Wallace, Seth P. Waxman, Paul R.Q. Wolfson, Christopher J.
Wright, July 17, 2013, letter.................................. 809
Viet D. Dinh, Professor of Law, Georgetown Law, Washington, DC,
July 18, 2013, letter.......................................... 814
Nancy R. Adams, Julia J. Cleckley, Gina S. Farrisee, Evelyn
``Pat'' Foote, Claudia J. Kennedy, Dennis J. Laich, Gale S.
Pollock, Wilma L. Vaught, Mary A. Baldy-Klotz, Margarethe
Cammermeyer, Marilla J. Cushman, Sherry de Vries, Debrah Feil,
Elizabeth W. Fleming, Norma L. Garrett, Lawrence Korb, Cindy
McNally, Robert (Mac) McNally, Paul Mango, Lory Manning, Debra
D. Mark, Stephanie Marshall, Joellen Oslund, Dwayne Oslund,
Michael E. Pheneger, Dawn S. Rucker, Katherine Scheirman, Loren
Simpson, Genie Davison Sorensen, Alfonse P. Squitiere, Glenna
L. Tinney, July 22, 2013, letter............................... 816
Jessica E. Adler, President, Women's Bar Association of the
District of Columbia, July 22, 2013, letter.................... 819
Wade Henderson, President and CEO, Nancy Zirkin, Executive Vice
President, The Leadership Conference on Civil and Human Rights,
Washington, DC, July 23, 2013, letter.......................... 822
Nancy Duff Campbell, Co-President, Marcia D. Greenberger, Co-
President, National Women's Law Center, Washington, DC, July
23, 2013, letter............................................... 824
Bree Adams Guiterman, Kylie Lowe, Elizabeth C. Dobbins, Matthew
Steven Lowe, Arthur Bradford Morrill IV, Robert L. Fendley,
Kylie Morgan Lowe, Samantha D. Henke, Raevon Pulliam, July 23,
2013, letter................................................... 826
Pamela Berman, President, National Conference of Women's Bar
Associations, July 24, 2013, letter............................ 828
Peter M. Reyes, Jr., HNBA National President, Hispanic National
Bar Association, Washington, DC, August 7, 2013, letter........ 831
Douglas T. Kendall, President, Judith E. Schaeffer, Vice
President, Constitutional Accountability Center, Washington,
DC, September 9, 2013, letter.................................. 833
Wade Henderson, President and CEO, Nancy Zirkin, Executive Vice
President, The Leadership Conference on Civil and Human Rights,
Washington, DC, September 11, 2013, letter..................... 835
Shanna L. Smith, President and CEO, National Fair Housing
Alliance, Washington, DC, September 18 2013, letter............ 837
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 4, 2013, Pillard letter............................... 839
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, May 29, 2013, Morris letter................................ 841
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, May 29, 2013, Watters letter............................... 843
Kimberly A. Knox, President, Connecticut Bar Association, New
Britain, Connecticut, August 1, 2013, letter................... 845
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 10, 2013, Meyer letter................................ 846
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, May 29, 2013, McCafferty letter............................ 848
Quotes for the Record on the DC Circuit's Caseload............... 850
WEDNESDAY, SEPTEMBER 11, 2013
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 859
prepared statement........................................... 691
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 860
Opening Statement Nominations Hearing: Judge Wilkins......... 1168
prepared statement........................................... 1235
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1238
PRESENTERS
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland, presenting Robert Leon Wilkins, Nominee to be Circuit
Judge for the District of Columbia Circuit..................... 852
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, presenting James Donato, Nominee to be District
Judge for the Northern District of California, and Beth Labson
Freeman, Nominee to be District Judge for the Northern District
of California.................................................. 853
Pierluisi, Hon. Pedro R., Resident Commissioner in Congress from
the Commonwealth of Puerto Rico, presenting Hon. Pedro A.
Delgado Hernandez, Nominee to be District Judge for the
District of Puerto Rico........................................ 855
Boozman, Hon. John, a United States Senator from the State of
Arkansas, presenting Timothy L. Brooks, Nominee to be District
Judge for the Western District of Arkansas..................... 856
Pryor, Hon. Mark L., a United States Senator from the State of
Arkansas, presenting Timothy L. Brooks, Nominee to be District
Judge for the Western District of Arkansas..................... 858
STATEMENTS OF THE NOMINEES
Wilkins, Robert Leon, Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 861
Biographical Information..................................... 862
Donato, James, Nominee to be District Judge for the Northern
District of California......................................... 953
Biographical Information..................................... 954
Brooks, Timothy L., Nominee to be District Judge for the Western
District of Arkansas........................................... 1003
Biographical Information..................................... 1004
Freeman, Beth Labson, Nominee to be District Judge for the
Northern District of California................................ 1041
Biographical Information..................................... 1043
Delgado Hernandez, Hon. Pedro A., Nominee to be District Judge
for the District of Puerto Rico................................ 1118
Biographical Information..................................... 1119
QUESTIONS
Questions for Robert Leon Wilkins submitted by Senator Chuck
Grassley....................................................... 1169
Questions for James Donato submitted by Senator Chuck Grassley... 1173
Questions for James Donato submitted by Senator Michael S. Lee... 1175
Questions for Timothy L. Brooks submitted by Senator Chuck
Grassley....................................................... 1176
Questions for Beth Labson Freeman submitted by Senator Chuck
Grassley....................................................... 1178
Questions for Hon. Pedro A. Delgado Hernandez submitted by
Senator Chuck Grassley......................................... 1181
Questions for all nominees submitted by Senator Ted Cruz......... 1184
ANSWERS
Responses of Robert Leon Wilkins to questions submitted by
Senator Grassley............................................... 1185
Responses of Robert Leon Wilkins to questions submitted by
Senator Cruz................................................... 1197
Responses of James Donato to questions submitted by Senator
Grassley....................................................... 1200
Responses of James Donato to questions submitted by Senator Lee.. 1206
Responses of James Donato to questions submitted by Senator Cruz. 1209
Responses of Timothy L. Brooks to questions submitted by Senator
Grassley....................................................... 1211
Responses of Timothy L. Brooks to questions submitted by Senator
Cruz........................................................... 1216
Responses of Beth Labson Freeman to questions submitted by
Senator Grassley............................................... 1219
Responses of Beth Labson Freeman to questions submitted by
Senator Cruz................................................... 1225
Responses of Hon. Pedro A. Delgado Hernandez to questions
submitted by Senator Grassley.................................. 1228
Responses of Hon. Pedro A. Delgado Hernandez to questions
submitted by Senator Cruz...................................... 1233
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 10, 2013, Brooks letter............................... 1240
Joseph C. Akers , Jr., Interim Executive Director, National
Organization of Black Law Enforcement Executives, Alexandria,
VA, August 28, 2013, letter.................................... 1242
Benjamin F. Wilson, John E. Page, Ricardo Anzaldua, James J.
Bender, Donna B. Coaxum, Bernard T. Gugar, Michelle C. Ifill,
Hannibal G. Williams II, Paul Lancaster Adams, Grace E.
Speights, Leslie T. Thornton, Keith H. Williamson, Kwamina
Williford, Steven H. Wright, September 10, 2013, letter........ 1244
Doreen Spears Hartwell, President, Las Vegas Chapter of the
National Bar Association, Las Vegas, Nevada, September 10,
2013, letter................................................... 1246
Wade Henderson, President and CEO, Nancy Zirkin, Executive Vice
President, The Leadership Conference on Civil and Human Rights,
Washington, DC, September 10, 2013, letter..................... 1248
The National Bar Association, Washington, DC, September 11, 2013,
statement...................................................... 1250
Nancy Duff Campbell, Co-President, Marcia D. Greenberger, Co-
President, National Women's Law Center, Washington, DC,
September 10, 2013, letter..................................... 1254
William (Billy) R. Martin, President, The Washington Bar
Association, Washington, DC, September 18, 2013, letter........ 1256
Michael J. Madigan, Orrick, Herrington & Sutcliffe LLP,
Washington, DC, September 27, 2013, letter..................... 1258
Jessica E. Adler, President, Women's Bar Association of the
District of Columbia, September 30, 2013, letter............... 1260
National Bar Association, Affiliate Chapters, September 30, 2013,
letter......................................................... 1263
Douglas T. Kendall, President, Judith E. Schaeffer, Vice
President, Constitutional Accountability Center, Washington,
DC, September 27, 2013, letter................................. 1268
Wade Henderson, President and CEO, Nancy Zirkin, Executive Vice
President, The Leadership Conference on Civil and Human Rights,
Washington, DC, October 2, 2013, letter........................ 1270
African American Ministers in Action, AFL-CIO, Alliance for
Justice, Amalgamated Transit Union (ATU), American Association
for Justice, American Association of University Women, American
Constitution Society, American Federation of Government
Employees (AFGE), American Federation of State, County and
Municipal Employees (AFSCME), American Federation of Teachers
(AFT), American Postal Workers Union (APWU), Americans for
Financial Reform, Asian Americans Advancing Justice--AAJC,
Association of Flight Attendants (CWA), Auto Workers United
(UAW), Black Leadership Forum, Coalition of Women's Initiatives
in Law, Common Cause, Communications Workers of America,
Constitutional Accountability Center, CREDO Mobile, Department
of Professional Employees (AFL-CIO), Earthjustice, Earth Rights
International, Environmental Law and Policy Center, Feminist
Majority, Generational Alliance, Hispanic National Bar
Association (HNBA), Human Rights Campaign, International
Brotherhood of Boilermakers, International Federation of
Professional and Technical Engineers (IFPTE), Justice at Stake,
Lambda Legal, MALDEF, Metal Trades Department (AFL-CIO), Mine
Workers of America (UMWA), National Abortion Federation, NAACP,
NAACP Legal Defense & Educational Fund, Inc., National
Association of Consumer Advocates, National Bar Association,
National Coalition on Black Civic Participation, National
Conference of Women's Bar Associations, National Congress of
American Indians, National Council of Jewish Women, National
Education Association, National Employment Lawyers Association
(NELA), National Fair Housing Alliance, National Legal Aid &
Defender Association, National Organization for Women, National
Partnership for Women and Families, National Women's Law
Center, People for the American Way, ProgressNow, Service
Employees International Union, Sheet Metal Air Rail
Transportation (SMART) Transportation Division, Sierra Club,
Steelworkers United (USW), Union for Reform Judaism, USAction,
YEO Action, Young People for Action, American Constitution
Society New England Law Boston, Americans for Democratic Action
Iowa, Arizona Advocacy Network, Asian Americans Advancing
Justice--Chicago, California School Employees, Cleveland NAACP,
Courts Matter to ME, I Believe Project (Mississippi), Illinois
Coalition for Constitutional Values, Interfaith Alliance of
Iowa, Iowa Association for Justice, Iowa Citizens Action
Network, Iowas Fair Courts Coalition, Jewish Alliance for Law &
Social Action (Massachusetts), Justice Not Politics (Iowa),
Louisiana Courts Matter, Maine Women's Lobby, National
Association of Social Workers Maine Chapter, National Council
of Jewish Women Lousiana State Policy Advocacy Network,
National Council of Jewish Women Maine State Policy Advocacy
Network, National Council of Jewish Women Minneapolis Section,
National Council of Jewish Women Pennsylvania State Policy
Advocacy Network, National Council of Jewish Women Missouri
State Policy Advocacy Network, National Council of Jewish Women
Texas State Policy Advocacy Network, Nebraskans for Civic
Reform, Ohio Coalition for Constitutional Values, One Iowa,
Pennsylvania Coalition for Constitutional Values, Planned
Parenthood of the Heartland, Texans for a Fair Judiciary,
Women's Bar Association of Illinois, Women's Bar Association of
Massachusetts, Working Families Win (Iowa)July 31, 2013, letter 1272
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 4, 2013, Wilkins letter............................... 1276
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 24, 2013, Donato letter............................... 1278
Paul M. Davis, Attorney at Law, Novato, California, June 21,
2013, letter................................................... 1280
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 24, 2013, Freeman letter.............................. 1282
Oreste E. Ramos, President, Federal Bar Association, Puerto Rico
Chapter, San Juan, Puerto Rico, August 19, 2013, letter........ 1284
Hon. Pedro R. Pierluisi, Member of Congress, Puerto Rico,
September 5, 2013, letter...................................... 1285
Judy Perry Martinez, Chair, American Bar Association, Washington,
DC, June 27, 2013, Delgado letter.............................. 1287
----------
ALPHABETICAL LIST OF NOMINEES
Brooks, Timothy L., Nominee to be District Judge for the Western
District of Arkansas........................................... 1003
Brown, Debra M., Nominee to be District Judge for the Northern
District of Mississippi........................................ 181
Delgado Hernandez, Hon. Pedro A., Nominee to be District Judge
for the District of Puerto Rico................................ 1118
Donato, James, Nominee to be District Judge for the Northern
District of California......................................... 953
Freeman, Beth Labson, Nominee to be District Judge for the
Northern District of California................................ 1041
McCafferty, Landya B., Nominee to be District Judge for the
District of New Hampshire...................................... 626
Meyer, Jeffrey Alker, Nominee to be District Judge for the
District of Connecticut........................................ 556
Millett, Patricia Ann, Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 12
Morris, Hon. Brian, Nominee to be District Judge for the District
of Montana..................................................... 447
Pillard, Cornelia T.L., Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 362
Watters, Hon. Susan P., Nominee to be District Judge for the
District of Montana............................................ 503
Wilkins, Robert Leon, Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 861
Wolford, Elizabeth A., Nominee to be District Judge for the
Western District of New York................................... 135
Woods, Gregory Howard, Nominee to be District Judge for the
Southern District of New York.................................. 98
NOMINATION OF PATRICIA ANN MILLETT, OF VIRGINIA, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT; GREGORY HOWARD WOODS, OF
NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW
YORK; ELIZABETH A. WOLFORD, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF NEW YORK; AND DEBRA M. BROWN, OF
MISSISSIPPI, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
MISSISSIPPI
WEDNESDAY, JULY 10, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:08 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer, presiding.
Present: Senators Leahy, Schumer, Franken, Coons, Grassley,
Lee, and Cruz.
Senator Schumer. The hearing will come to order, and I want
to welcome our colleagues. We have four colleagues here, and we
are going to do the higher court first, which is the DC
Circuit. And so here to introduce Ms. Millett are Senator
Warner and Senator Kaine. Then we will have Senator Cochran and
Senator Wicker introduce their nominee, and then we will get on
with the rest of the hearing.
So, Senator Warner, you are on.
PRESENTATION OF PATRICIA ANN MILLETT, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. MARK R.
WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Mr. Chairman, and today I am
honored to join with my good friend and colleague, Senator
Kaine, to introduce a fellow Virginian, President Obama's
nominee to the U.S. Court of Appeals for the DC Circuit,
Patricia Millett. Patricia is extremely well qualified to carry
out the duties and responsibilities of a federal appellate
judge.
I know the Committee has no doubt looked at her
professional career and had the same reaction as I did. This is
an extraordinarily talented individual who would be a great
credit to the court.
Patricia earned her bachelor's degree summa cum laude, with
highest distinction, in 1985 from the University of Illinois,
and, Mr. Chairman, I think that--Mr. Chairman, this is an
important factor. I think that Patricia went to the same law
school that you and I and Senator Kaine did, and if my facts
are correct, she graduated magna cum laude, which I am not sure
that you or I or Senator Kaine had the distinction of
graduating from.
[Laughter.]
Senator Warner. So, you know, I just thought we might let
that note be out there.
Senator Schumer. I used to say the best thing about going
to Harvard is you are not impressed when someone else says they
went there, because if they took you, they could take anybody.
[Laughter.]
Senator Warner. That is right. I hope that will be stricken
from the record.
[Laughter.]
Senator Schumer. When I said ``meaning you,'' I meant
``me.''
[Laughter.]
Senator Warner. After this distinctive educational
background, she clerked for the late Judge Thomas Tang of the
U.S. Court of Appeals for the Ninth Circuit. She worked on the
appellate staff of the Civil Division of the U.S. Department of
Justice. She went on to serve under both Democratic and
Republican administrations as an assistant to the Solicitor
General, where she was awarded the Attorney General's
Distinguished Service Award.
Currently, she is chair of the Supreme Court practice at
Akin Gump. Patricia has actually argued 32 cases before the
High Court. This either places her, depending on the week, as
the number one or second, top one or two, of all women lawyers
who have ever argued that many cases before the Supreme Court.
She also brings a distinctive bipartisan support to this
nomination. Seven former Solicitor Generals from both ends of
the political spectrum support Patricia Millett's nomination.
This includes Democrats Walter Dellinger and Drew Days and
Republicans Ted Olson, Ken Starr, and Paul Clement.
She has been recognized by the National Law Journal as one
of the 100 Most Influential Lawyers in America and received the
endorsement of the American Bar Association and the Virginia
State Bar.
She has got here with her family--beyond these impressive
professional accomplishments, she is an active member of our
community. She has volunteered at homeless shelters along with
transitional housing organizations. I think a couple of her
kids are about to go off on missions. She is an active member
of the Aldersgate United Methodist Church in my home town of
Alexandria, where she volunteers in Sunday school. She has also
repeatedly volunteered her time to assist with the Street Law
Project Supreme Court Summer Institute for Teachers that
educates high school teachers about the Supreme Court. I know
this is a program that many Members of the Committee widely
respect.
Most importantly, she and her two young children have also
been big supporters of her husband, who served for over 20
years in our military where he was deployed during Operation
Iraqi Freedom.
Let me close before I get to Senator Kaine and say that for
any of you who might not be willing to support Patricia's
confirmation, I want to warn you ahead of time, both her
husband and her two children all have a black belt in
taekwondo.
[Laughter.]
Senator Warner. So, you know, bear that in mind as well.
This is an extraordinary lawyer with a great background in
the community. I can think of no one that would be better
served--better service to the U.S. Court of Appeals, a court
that is in desperate need of having its many vacancies filled.
I endorse her without reservation, and it is my hope that this
Committee will come to that same conclusion after you have had
a chance to review her credentials and ask her questions. She
will be a great tribute to the court.
With that, I will turn it over to my good friend Senator
Kaine.
Senator Schumer. Senator Kaine is recognized.
Senator Kaine. Great.
Senator Schumer. By Chairman Warner.
[Laughter.]
PRESENTATION OF PATRICIA ANN MILLETT, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. TIM KAINE,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Kaine. Thank you, Mr. Chair and Members of the
Committee. I love doing these with my friend and colleague, my
senior Senator, Mark Warner, and it is a happy occasion to be
here for Patricia Millett. Mark did a good job of summarizing
her background, a public service background, two years as a
judicial clerk. I worked as a clerk in the Eleventh Circuit,
and I know how a beginning lawyer is often very molded by a
clerkship experience, learning about judging, judicial
temperament, dedication, and she had that experience early. She
has had an extensive public career, as Senator Warner
indicated, both in the Justice Department and then with a
lengthy tenure in the Solicitor General's office under both
Democratic and Republican Presidents.
The Senator mentioned that she has gotten strong
recommendations from seven former Solicitor Generals of both
parties, but also I believe the Committee has a letter with
dozens of former Assistant or Deputy Solicitor Generals,
current and former, weighing in on behalf of Patricia. That
sort of bipartisan experience representing the United States
under both Democratic and Republican administrations is a very
important thing.
She left the public service to go to one of America's best
known law firms at Akin Gump Strauss, where she has headed the
appellate practice section, as Senator Warner mentioned. She
has a very distinguished record of arguing cases before the
Supreme Court, 32 cases and briefs in 77 cases. But she also
has an extensive record of arguing cases before the courts of
appeals. She has had 38 courts of appeals arguments in 12
circuit courts, including arguments before the DC Circuit. So
this is a court that she knows well.
Senator Warner described her family: her husband, Robert,
and her two children, Elizabeth and David, who are both here.
It is a family that values public service, broadly defined,
active in their church, active in community activities. And she
would bring, I think, a great deal of life experience and
balance to this all-important court.
We care about courts in Virginia. We proudly claim probably
the greatest jurist in American history, John Marshall. We want
to have judges who have the character and the educational and
career experiences that will enable them to be solid jurists,
and I know Patricia would carry that out in a wonderful way.
And so I encourage your favorable consideration of her
candidacy and favorable consideration on the floor. Thanks very
much.
Senator Schumer. Thank you, Senator Kaine, and I know you
folks have busy schedules, so if you wish to leave, you may.
And if you wish to stay and listen to the mellifluous words of
Senators Cochran and Wicker, that would be fine, too.
So now let me call on Senator Cochran to introduce the
nominee from the Northern District of Mississippi.
PRESENTATION OF DEBRA M. BROWN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD COCHRAN,
A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, I am pleased to be here with
the Committee this morning to recommend Debra Brown for
confirmation as a United States District Court Judge for the
Northern District of Mississippi.
Ms. Brown graduated from the Mississippi State University
School of Architecture in 1987, where she has served as a
member of the school's Advisory Council. She worked as an
architect here in Washington, where she participated in the
renovation and restoration of municipal and historic buildings
and in the construction of commercial and residential
properties as well.
She received her law degree from the University of
Mississippi School of Law in 1997, where she served as
associate editor and articles editor of the Mississippi Law
Journal.
After graduating from law school, Ms. Brown became the only
lawyer in Mississippi with degrees in both architecture and
law, and in 1997 she joined the Phelps Dunbar law firm in
Jackson, Mississippi, where she became a partner and remained
until January 2012, when she joined, as a shareholder, the
Wise, Carter, Child & Caraway law firm, also in Jackson.
During her almost 16 years in private practice, Ms. Brown
has had the opportunity to engage in numerous civil cases
covering a broad range of subject matters, but especially in
the areas of commercial construction and civil liability
litigation. The American Bar Association's Standing Committee
on the Federal Judiciary unanimously concluded that she is
qualified to serve as a federal district court judge.
She is a member of the American Bar Association, the
National Bar Association, and the Federal Bar Association, as
well as a member of the Mississippi State Bar and the Magnolia
Bar Association, where she has served also as the Mississippi
Women Lawyers Association representative as president. She is
also a fellow of the Mississippi Bar Foundation.
She was the 2004 recipient of the Jackson Young Lawyers
Outstanding Service Award and was recognized in 2008 by the
Mississippi Business Journal as one of Mississippi's leading
business women.
Debra Brown is very well qualified by ability, education,
and experience to serve as a United States district court
judge. The President nominated her for the post on May 16,
2013. Senator Wicker and I have returned our Senate Judiciary
Committee blue slips recommending approval of her nomination
and her confirmation by the Senate.
It is a personal pleasure to be before the Committee today
and to express my confidence that she will reflect great credit
and serve with distinction as a member of the United States
federal judiciary.
Senator Schumer. Thank you, Senator Cochran.
Senator Wicker.
PRESENTATION OF DEBRA M. BROWN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF MISSISSIPPI, BY HON. ROGER WICKER,
A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Wicker. Thank you, Mr. Chairman, and thank you,
Members of the Committee. Let me join Senator Cochran in
enthusiastically endorsing Debra Brown for the position of
district court judge. And let me also say, Mr. Chairman, that
as a son of Mississippi and as the junior Senator from
Mississippi, this is a profoundly special moment for me because
I think Judge Brown will be an outstanding addition to the
federal bench and, if confirmed, Ms. Brown would be the first
African American female judge in the State of Mississippi.
So it means a lot to me. It is an emotional moment for me,
and we are making history, and I am just so honored to be part
of it.
Ms. Brown has represented accomplishment and excellence her
entire life. Back in Yazoo City High School, she was a National
Merit finalist. She was president of the National Honors
Society. It had not occurred to me, but it seems that it is a
good balance that we need at least an architect or two on the
federal bench.
[Laughter.]
Senator Wicker. And, my goodness, Ms. Brown got her degree
from Mississippi State University School of Architecture. She
practiced architecture right here in DC, and then decided to
make a career switch, after having a very accomplished career
in architecture, went back to the University of Mississippi Law
School--the first person in her family to earn a law degree.
She has been a partner at Phelps Dunbar. She has been a
shareholder at Wise, Carter, Child & Caraway in Jackson,
Mississippi. She certainly represents legal excellence, as
Senator Cochran mentioned, in the areas of commercial
construction, general liability litigation, premises liability,
product liability, intellectual property, employment law, and
insurance defense. She has the intellectual capacity to take on
the most complex issues. She also served as president of the
Mississippi Women Lawyers Association from 2003 to 2004.
She has a reputation for professional excellence. She was
selected by the Mississippi Business Journal as one of
Mississippi's 50 leading business women, and in addition, she
has given back to her community as a volunteer. In addition to
her pro bono activities, she serves on the board of two
nonprofit organizations, the Mississippi Center for Justice--a
public interest law firm committed to combating discrimination
and poverty in Mississippi--along with Operation Shoestring, a
charity that offers academic enrichment and related services to
the children of Mississippi.
Now, I have already pointed out that she is from Yazoo
City, Mississippi. She lives in Jackson now, but she is a
native of Yazoo City, a graduate of Yazoo City High School.
This is in the Southern Delta, Mr. Chairman. She replaces the
late Judge Allen Pepper, a dear friend of Senator Cochran and
me, who was from Cleveland, at the northern end of the
Mississippi Delta.
She will occupy the office of the federal judge in the
courthouse in Greenville, Mississippi, and it occurs to me,
Senator Cochran and Members who might be in a position to make
appropriations, that that courthouse is not up to speed.
[Laughter.]
Senator Wicker. It is not state of the art. The setback
from the street makes it a terrorist threat, and it needs to be
replaced. And I just think it is special today to have in our
presence and to submit to you the judge who will undoubtedly
preside over the construction of a brand-new, state-of-the-art
courthouse in Greenville, Mississippi.
[Laughter.]
Senator Wicker. Debra Brown is going to be good for the
country. She will be good for the people, and this is a good
day for Greenville, Mississippi, and for the Delta. And I
consider it a personal and high honor to recommend her highly
to this Committee and to the U.S. Senate.
Senator Schumer. Well, thank you, Senator Wicker. And we do
have the most senior Members of the Appropriations Committee,
one sitting to your right, one sitting to my left. So I am sure
your pleas we will be listened to.
Anyway, thank you all for being here and introducing your
witnesses, and before I call the first panel, we are honored to
have our Chair of our Judiciary Committee here today, and I am
going to call on him first for a brief opening statement, then
the rest of us; then we will call Ms. Millett and go forward
from there.
Chairman Leahy.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Well, I thank you, and I will be brief
because I am going to another Committee meeting. But we could
not have a more experienced Member of this Committee than
Senator Schumer to be here to chair it.
I appreciate the comments of the two Senators from
Mississippi, both good friends of mine, and the two Senators
from Virginia, also good friends. And with Senator Grassley
here, I would note that we held a respectful, productive
hearing for the President's nominee to be FBI Director
yesterday. And today we have another hearing, which I hope will
be of the same caliber. I think if we have a fair hearing
today, we are going to agree that these nominees are deserving
of bipartisan support, all of them.
I will mention one: Patricia Millett, who is nominated to
one of three vacancies on the District of Columbia Circuit. An
appellate advocate, she served in the Office of the Solicitor
General under both President Clinton and President Bush. She
has argued 32 cases before the Supreme Court--I mean, that
would be a career for anyone--another 36 before federal courts
of appeals. She testified here in 2008 at the request of the
Senate Republicans. Eminently well qualified, and there is no
question she should serve on that court.
I would note there has been some discussion of the caseload
of the court. Earlier this week, the Senate voted unanimously
to confirm Wyoming Attorney General Gregory Phillips to the
Tenth Circuit. That means the number of pending appeals per
active judge on that court dropped from 150 to 135. The DC
Circuit has 177 pending appeals per active judge. Most of them
are far more complex. So I think, just as earlier this year
when Senators voted Jane Kelly to the Eighth Circuit, which
gave that court the lowest caseload in the country, I hope
those same Senators will realize that here we have somebody
with a much busier court, a court that needs her, and do so.
But all of the nominees are so well qualified that I thank
again Senator Schumer and Senator Grassley for having this
hearing, and I can assure you I will try to move these. Once
the hearing is over, is completed, and Senator Schumer tells me
that the record is closed, we will put them on the agenda.
Thank you.
Senator Schumer. Thank you, Mr. Chairman, and we are
honored by your presence here today.
Now we will call the first panel, which is a panel of one--
oh, Senator Grassley, do you want to make an opening statement?
I was going to make mine when Ms. Millett came here, but go
ahead. Do you want to make one now?
Senator Grassley. I would prefer to make mine after you
make yours.
Senator Schumer. Okay, great. Okay. And so let us call our
first panel, which is Patricia Millett.
[Pause.]
Senator Schumer. Patricia Millett, will you please stand to
be sworn? 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. Millett. I do.
Senator Schumer. Please be seated.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. Okay. Well, welcome. I want to thank
Chairman Leahy for being here, Ranking Member Grassley,
Senators Franken, Lee, and Cruz for being here as well.
Now, before we get to Ms. Millett, I am going to make an
opening statement, Senator Grassley will, and then we will get
right to our nominee.
So I would like to make a brief comment about President
Obama's noble and serious efforts to fill vacancies on the
United States Court of Appeals for the DC Circuit, often called
the ``second most important court in the country.''
Four years after his election, the President has had just
one nominee to the DC Circuit confirmed. The 11-member court
has three vacancies. It does not even have enough judges for
more than two full hearing panels.
To be clear, the caseload per active judge, as Senator
Leahy mentioned, on the DC Circuit is now 177 per judge. For
the Tenth Circuit, which we just confirmed a new judge two days
ago, the caseload is 150 per judge. That was before the nominee
was approved.
In fact, the DC Circuit currently has a higher number of
pending appeals per active judge than there was when any of
President Bush's nominees were nominated or confirmed. And we
all know how complicated many of the cases before the circuit
are.
Now, my good friend and colleague, fellow ``Chuck'' in the
Senate, Senator Grassley, has introduced a bill called The
Court Efficiency Act, which would take away the three remaining
seats on the DC Circuit. This bill was not introduced by either
party during the Bush administration. In fact, my Republican
colleagues during the Bush administration voted to confirm the
9th, 10th, and 11th judges to the DC Circuit. They voted to
confirm the 10th judge on that court twice.
Given that no party has ever refused to fill the ninth slot
on the court based on caseload, and given that the current
caseload is quite high, I hope and expect my colleagues on the
Committee will proceed to evaluate each nominee on his or her
own merits.
Sri Srinivasan, a truly exceptional candidate of whom any
President would be proud, was finally confirmed to the eighth
seat on the court, rightfully so.
An earlier nominee, Caitlin Halligan, had two failed
cloture votes before she withdrew her name. One of the chief
arguments against her was the caseload of the DC Circuit, but
Judge Srinivasan was confirmed after her failed votes. Halligan
was also an exceptionally well-qualified nominee. Her opponents
dredged up other reasons to prevent her nomination from going
forward based on briefs she wrote as a lawyer and gave for
other people. I hope that another qualified female candidate
will be accorded the respect that she deserves.
Patricia Millett could not have possibly had a more varied
career showing the breadth of her intelligence and her
experience. She has represented a wide swath of clients, argued
many types of cases from all sides, and expressed keenly
intelligent opinions on a variety of legal issues, even if one
disagrees with some of them. In short, as her myriad supporters
have noted in dozens of letters to this Committee, she is a
lawyer's lawyer. So I look forward to hearing from her and
other nominees, and we will call on Senator Grassley for his
opening statement now.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. I have some differences with my
distinguished colleague on this point, but I am also glad to
have participated in the Senate confirmation of 199 of
President Obama's nominees and the disapproval of only two,
which I think is a 99-percent average, and this President ought
to be very proud of the Senate's actions on these nominees.
First of all, congratulations to the nominee, to Ms.
Millett. Glad to have you here.
I previously expressed my opposition to including on the
agenda today any nominee of the District of Columbia Circuit.
First, as my colleagues are aware, there is a lack of consensus
regarding the workload of the court. Second, we are moving at a
very quick pace on nominations. And, third, we are skipping
over nominations that were submitted to the Committee earlier
than the DC Circuit nominations. In fact, my concerns are
identical to those expressed by Senate Democrats when President
Bush nominated Peter D. Keisler to fill this particular vacancy
in 2006.
For example, one of my colleagues said, ``Like my
colleagues, I am not pleased that the Committee is holding this
hearing today. As we wrote to you last week, Mr. Keisler was
nominated only a month ago. The question of whether another
judge should be named to the DC Circuit is an issue that needs
further study and discussion in the Committee.''
Another Senator stated, regarding the timing of Mr.
Keisler's hearing, ``First, we have barely had time to consider
the nominee's record. Mr. Keisler was named to this seat 33
days ago. So we are having this hearing with astonishing and
inexplicable speed. The average time for nominations to a
hearing for the last seven nominees to that court is several
times that long.''
That Senator also commented on my third point, skipping
over nominees. In 2006, he said, ``I am especially surprised
that we are pushing forward, given that Mr. Keisler is now
leapfrogging ahead of several nominees.''
My point is both parties have raised concerns, and they
should be addressed before we move forward with the nominations
of Court of Appeals for the DC Circuit.
I would acknowledge that in 2006 the hearing for Mr.
Keisler went forward, even with concerns expressed by my
Democratic colleagues. But what was the result? Did Senate
Republicans then steamroll the minority or quickly rubber stamp
the nomination? Did they change the rules of the Senate to
ensure confirmation by simple majority vote? Of course not. The
Republican Chairman at the time was exceptionally
accommodating, perhaps ultimately to the detriment of Mr.
Keisler's nomination. Senator Democrats used every procedure
and strategy possible to delay consideration of the nomination.
This included boycotting Committee meetings to avoid a quorum,
invoking the two-hour rule to prohibit a Committee meeting, and
threatening a filibuster in Committee. Ultimately his
nomination was returned to the President, even after a hearing
had been held, and his nomination was held over in mark-up.
Democrats blocked the final mark-up vote.
During the next Congress, when Democrats held the majority,
Mr. Keisler was renominated and was pocket filibustered in the
Committee. I would note that, despite the treatment that he
received, Mr. Keisler submitted a letter in support of Ms.
Millett's credentials. This is a real testament to his
character, and I do not recall many Democrat letters of support
for Mr. Keisler at the time of his nomination.
It is interesting that Mr. Keisler declined to take a
position on whether additional judges on the DC Circuit are
warranted. But I would like to address in a little more detail
my concerns about moving forward on the DC Circuit.
First is the workload issue. In 2006, Democrats argued that
the DC Circuit caseload was too light to justify confirming any
additional judges to the bench. You know what? Since then, the
caseload has continued to decrease. In terms of raw numbers,
the DC Circuit has the lowest number of appeals filed annually
among all circuit courts of appeal. In 2005, that number was
1,379. Last year, it was 1,193, a decrease of 13.5 percent. The
next lowest circuit is the First Circuit, which has 33 percent
more appeals filed and yet has half as many judges.
In terms of the number per authorized judgeship, again, the
DC Circuit is the lowest. In 2012, the DC Circuit has 108 total
appeals filed per authorized judgeship, the lowest in the
Nation. By comparison, the national average was 344, nearly
three times higher. Furthermore, this measure is also on
decline. Total appeals per authorized judgeship in 2005 was
115. In 2012, that number had fallen to 108. What is noteworthy
is that the number decreased despite having one less judge due
to the judgeship transferred to the Ninth Circuit in 2008.
But probably the best numbers to look at are those that
measure the workload per active judge. The caseload has
decreased so much since 2005 that, even with two fewer active
judges, the filing levels per active judge are practically the
same. In 2005, with 10 active judges, the court had 138. Today,
with only eight active judges, it has 149. This makes the DC
Circuit caseload levels the lowest in the Nation and less than
half the national average.
We have recently confirmed judges to the Eight and Tenth
Circuits. It has been suggested--in fact, you heard it this
morning--that these circuits have caseloads lighter than the DC
Circuit. I think this is simply not accurate. The DC Circuit
has fewer cases filed and fewer cases terminated than either
the Eighth Circuit or the Tenth Circuit. Cases filed and cases
terminated measure the amount of appeals coming into the court
and being resolved by the court respectively. That is how you
determine how busy a court is.
It is quite revealing that the White House is attempting to
rely on pending cases to try to compare the Eighth and Tenth
Circuits to the DC Circuit. But what the White House fails to
mention is that cases pending measure case backlog, not how
many cases are being added and removed from the docket.
When looking at how many cases are added per active judge,
the DC Circuit is the lowest, with 149. It is nowhere near the
Eighth Circuit, 280, and the Tenth Circuit, 217. When looking
at the numbers of cases being removed by each court, the DC
Circuit is once again the lowest at 149. Again, the Eighth
Circuit and Tenth Circuit are much higher at 269 and 218,
respectively.
So by nearly every measure, the facts show that the DC
caseload is low and getting lower, raising serious doubts as to
whether we need more than eight active judges, given a
remarkably light caseload.
The final point I will make about the workload is this: I
am aware that the White House has been arguing aggressively
that Republicans voted for Judge Griffith in 2005 who for a
short term served as the 11th active judgeship. Therefore, they
argue that we should now vote to fill the 9th, 10th, and 11th
seats. However, again, what the White House fails to mention is
that when we voted for Judge Griffith in 2005, Judge Edwards
had already announced that he was taking senior status. As a
result, anyone knew that in effect we were voting for the 10th
active judge, not the 11th seat. And as I have already
explained, since that time the numbers have fallen so much that
the number of cases per active judge is roughly equivalent to
2005, even though there are two fewer active judges.
A second major area of concern in addition to the workload
issue is the quick timeline for consideration of this nominee.
The President nominated three individuals just 36 days ago.
Compare this to the history of previous DC Circuit nominations.
According to my count, since 1980 there have been 29
individuals nominated to this court, including the three recent
nominees. The average wait for a hearing for these nominees is
130 days. President Clinton's nominees, on average, waited 120
days, slightly below the overall average. For President
Clinton, the delay more than doubled with the nominees waiting
an average of 287 days for their first hearing, but Senate
Democrats insisted on second hearings for three of President
Bush's nominees. When those are factored in, the nominations
for hearings average jumps to 445 days.
Those averages do not tell the story of the worst delays.
Estrada waited 505 days. John Roberts waited 630 days for his
first hearing and 721 days for his second hearing. Brent
Kavanaugh waited 277 days for his first hearing and did not
complete the Committee hearing process until an astounding
1,019 days later. In contrast, today's nominees have waited 36
days. Not only are President Bush's--or President Obama's
nominees receiving a hearing in a shorter time, but also a much
faster pace. Today's hearing is the 10th hearing this year
during which we will consider a total of 28 judicial nominees.
Compare that favorable treatment of this President during the
beginning of his second term versus President Bush's first year
of his second term. At that stage, in President Bush's second
term, the Committee had held not 10 hearings with 28 judicial
nominees, but only three hearings for five nominees. All were
holdovers from the previous Congress. In fact, for the entire
year of 2005, Senator Democrats only allowed seven hearings for
18 judicial nominees, and, again, we have already exceeded that
10 hearings with 28 judiciCal nominees.
So I am disappointed that today we are moving forward on
this particular nomination for DC Circuit. We should first have
held hearings on the workload. We should not have leapfrogged
over other nominees who have been waiting in Committee so we
could expedite this process. And we should give more time to
the Members to review the qualifications and record of the
nominees.
Saying all that, I am still happy that we have approved 199
judges during this Presidency with only two being not confirmed
by the Senate.
Thank you.
Senator Schumer. Thank you, Senator Grassley.
And now let us turn to the witness. We want to welcome
Senator Coons for being here. Ms. Millett, if you have an
opening statement, you may make it, but we certainly want you
to introduce your family, who I know is here.
STATEMENT OF PATRICIA ANN MILLETT, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Ms. Millett. Thank you, Senator Schumer. I know that I am
someone who communicates for a living, but I have to confess
that this morning, words seem quite inadequate to convey the
depth of my gratitude and honor for being here and for this
opportunity to discuss with you whatever questions you might
have.
I am particularly grateful to you, Senator Schumer, Senator
Grassley, and all the Senators present, for having this hearing
and for taking the time. I am also very grateful for the
incredibly gracious introduction by Senators Warner and Kaine.
I also want to express my gratitude to President Obama for
the inexpressible honor of this nomination and the opportunity
to serve as a steward of our very precious judicial system.
I have, as you may have noted, a lot of family and friends
here today. I will not list them all. It will not be like an
Academy Award speech. But I want every one of them to know that
I am so grateful for the gift of their presence. It is a true
blessing to me. I will, if you will permit, note that my
father, Richard Millett, is here. My mother and my sister,
Joan, could not be here, but are with me in spirit, as is my
late brother, who joins us from a better place.
There are a couple of special people, if I could quickly
just note: the Reverend Dr. Dennis Perry and Major General Carl
McNair; from my church two very special people, Teresa and
George Reyes, the godparents to my children and incredible
sources of support to me and my husband. And I will simply
quickly note that and confess again that the very best parts of
my family are the ones sitting behind the table and not at the
table: my daughter, Elizabeth, who is 12 years old, and my son,
David King, who is 15; and as Senators Kaine and Warner noted,
are both headed off next week away from swimming pools to spend
their summertime helping the less fortunate through service
projects. And I am incredibly proud of them.
And, of course, my husband, Robert King, who is simply the
best husband and father anyone could ever ask for.
I could fill the hearing time with my pride and affection
for friends and family, but I will not impose on your time any
further, and I would be most happy to answer your questions.
[The biographical information of Ms. Millett follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Thank you. Could we ask all of those who
were introduced just to stand so we may greet you and say
hello? Welcome. Thank you for being here.
Okay. I will start with the questions. First, Ms. Millett,
you have represented business interests in your private
practice at Akin Gump. As a young associate at Miller &
Chevalier, your clients were primarily business and business
entities. At the same time, you commented about the Ledbetter
case, where the Supreme Court ruled in favor of Goodyear Tire
on equal pay, that the Court does not always get it right.
Will your business experience color your views as you hear
cases, particularly on labor and employment issues? What will
be your approach to cases where business and labor are in
conflict?
Ms. Millett. Thank you, Senator. I appreciate the question.
My approach as a lawyer is, of course, to advocate on behalf of
clients and to present their story. Every case that I have
belongs to my clients. I am their voice. It is not my voice.
If I were to be confirmed as a judge, my role would be to
be the voice of the rule of law, to be impartial and to
represent and to adjudicate decisions consistent with text and
precedent. And I note that while I have certainly represented
businesses, I have also represented employees like Mr. Staub in
a case in the Supreme Court involving employment
discrimination. And during my time in the Solicitor General's
office, we filed briefs on behalf of individual employees in
cases in the Supreme Court. So I do think that my experience on
both sides of those cases is something that has informed the
balance I would bring as a judge and impartiality as a judge.
Senator Schumer. Thank you.
Throughout your career you have appeared on panels,
speaking to and educating students at law schools across the
country. Is it part of your professional responsibility to
teach and mentor?
Ms. Millett. Absolutely. As I think all lawyers are
committed to doing that and should be doing that, it is part of
our professional obligations. I have always felt a particular
duty to do that as a woman Supreme Court advocate.
Senator Schumer. Thank you. And in the course of speaking
and writing about various issues like Citizens United, you have
formed personal opinions on the law. Is that correct?
Ms. Millett. Yes.
Senator Schumer. Is there any reason you could not separate
your personal views from your role as a judge?
Ms. Millett. Not only is there no reason, but, in fact,
with every fiber of my being, I value our justice system and
the way it works. And it would be a betrayal of the justice
that every client I have ever represented wants, which is
simply an impartial, fair hearing by a judge who applies the
rule of law. That is what they all want, and that is all that I
would be capable of providing.
Senator Schumer. What can you say to those on the right or
on the left who may have questions about your judicial
philosophy?
Ms. Millett. I can say that I am not sure I even have a
judicial philosophy. I have been very busy handling cases one
case at a time and working the case one case at a time. I think
were I to be confirmed, I would have certainly a mechanism and
it would be to study the case hard, decide only what is before
me through the application of controlling precedent and
relevant text.
Senator Schumer. Thank you.
Now, you have spoken in the past of your Christian faith,
and in 2004 you told Greenville College, ``To be a Christian
lawyer, I must always remember that laws are made for the
benefit of people. People are not made for the benefit of
laws.''
In what ways will your religious faith shape how you
conduct yourself as a judge? And will your religious faith
dictate how you decide cases, should you be confirmed?
Ms. Millett. My religious faith is the biggest part of who
I am, and I am proud of that. And it is something that is
incredibly important to me. But the--our Constitution is a very
precious system of justice that it creates, and it creates
judges to decide cases based not on personal views, not on
background, not on personal beliefs, but based on the rule of
law. That is what every client I have ever had wants. That is
what the system demands. And I would never betray that
incredibly precious system by injecting personal beliefs into
decision making.
Senator Schumer. Thank you. We are going to try to stick
strictly to the five-minute rule, since we have a second panel
and we have a vote at noon.
Senator Grassley.
Senator Grassley. Thank you very much.
You have extensive appellate experience, especially with
the Supreme Court. Certainly during that time you have
reflected on judges or justices before whom you have appeared.
I would like to have you describe for us some traits or
judicial philosophy that you would like to emulate as a judge
if confirmed. Is there a particular justice that you admire?
Two questions.
Ms. Millett. Thank you. There are many justices that I
admire. As a Virginian, I am, of course, duty bound to note
first the great Chief Justice John Marshall. But I also want to
mention Judge Tang for whom I clerked, if you will permit me to
cite a judge rather than a justice, who taught me--he was the
very epitome of approaching every case one case at a time,
working it through and finding the right answer in the law
itself. And that is what I would hope to emulate.
I, of course, as a woman, am incredibly grateful to the
path-breaking work of Justice Sandra Day O'Connor and Justice
Ruth Bader Ginsburg as well.
Senator Grassley. You have commented in interviews about
the different personalities and question-asking styles of the
Justices on the Supreme Court. What do you envision as an
appropriate demeanor for a federal judge?
Ms. Millett. I think the most important thing for a federal
judge to do at the bench is to engage the lawyers in a
reasonable and fair manner. I find that when I go to court on
behalf of clients, those clients want to see the judges engaged
in a respectful way, not overriding, not overbearing, but
discussing the important legal issues in the case. That is the
process that people want to see, and so I would try to strike
the balance that way.
Senator Grassley. You have written, ``My strong personal
views are that the freedom and autonomy of the individual to
exercise her faith free from unwanted governmental interference
have helped to make the United States the strong country that
it is.'' Does that statement still accurately reflect your
personal views of religious freedom? And if so, how would this
affect your duties on the bench?
Ms. Millett. I certainly am a big believer in religious
freedom, but all of the liberties that are protected by our
Constitution. We have a Constitution that envisions limited
government that works for the people; the people do not work
for it. It belongs to the people. And I think my full
understanding and appreciation for our limited government, the
limited role of courts within our limited Federal Government,
is what I would bring to bear on the bench if I were confirmed.
Senator Grassley. A recent conflict between religious
freedom and federal law is mandated by the Affordable Care Act
that employers provide contraception and abortion coverage as
part of their employee health insurance plans. For some
employers, this presents a particularly difficult question of
whether to abide by the law or go against their conscience.
If a case were to come before you involving this question,
how would you take into consideration the First Amendment
rights of these employers and mandates? And I think maybe I
better back up because I do not want you to say you cannot
answer the question because you might have a case before you. I
am talking very generally between religion and conscience of
somebody that has to abide by the law. How would you take into
consideration the First Amendment rights of these employers and
mandates?
Ms. Millett. Right. I would certainly--and I appreciate
that. Without referencing any particular case, in any such
religious freedom case there are important precedents from the
U.S. Supreme Court to apply that involve--there are cases like
the recent Hosanna-Tabor case from the Supreme Court that have
recognized the role of religious autonomy. There are other
cases like Smith v. Employment Division which have addressed
the application of general laws to religious practitioners. So
I would have to survey--what I would do is survey Supreme Court
precedent in the First Amendment area and apply it to the
particular case as it came before me.
Senator Grassley. This will probably have to be my last
question. In a 2009 panel at Georgetown University Law School
Supreme Court Institute, you made the following statement about
Justice Sotomayor: ``The fact that people say she is an
activist judge because she did not protect the personal
individual right to bear arms is really to be laughed away.''
That statement has raised some concerns about your views on
the Second Amendment, so this gives you an opportunity to
explain to the Committee your views in a very general way on
that Second Amendment.
Ms. Millett. And thank you for the opportunity to clarify.
My comment there in particular was with respect to a case
called Maloney that Justice Sotomayor had been on when it was
decided in the Second Circuit. And in that case, what I was
referring to was the fact that the Second Circuit had done what
judges are supposed to do, and that was apply controlling
Supreme Court precedent, including the Supreme Court's Footnote
23 in the Heller decision to say it is not for us on the Second
Circuit to first say whether the Second Amendment is an
individual right incorporated into the 14th Amendment. Of
course, the Supreme Court answered that question shortly
thereafter in the McDonald case. So all Justice Sotomayor did
in that case was what judges should do, and that is wait for
the Supreme Court to overturn its own precedent. But I note
that in the Stevens case, I had the support of the National
Rifle Association. I talked in my briefing very much about the
importance of the individual right there to engage in hunting
and expression while hunting, the combination.
Senator Grassley. Okay. Thank you.
Thank you, Mr. Chairman.
Senator Schumer. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Ms. Millett, thank you for being here. You have argued more
cases before the Supreme Court than any other woman. Is that
correct?
Ms. Millett. Actually someone passed me at the end of
April.
Senator Franken. I am wrong, then.
[Laughter.]
Senator Franken. Okay. Thanks.
[Laughter.]
Senator Franken. My advice is really do not say I am wrong
again.
[Laughter.]
Ms. Millett. I am under oath, though.
[Laughter.]
Senator Franken. Okay. I will try to be careful then.
[Laughter.]
Senator Franken. Let me ask a question where you cannot
possibly contradict me.
[Laughter.]
Senator Franken. Since you have argued before the Supreme
Court more than any other woman but one, how will that inform
you about being on the other side of it in terms of how you
conduct the question-and-answer sessions? And what have you
learned from that?
Ms. Millett. Thank you. I have learned a lot. It has been a
great privilege to litigate cases in the U.S. Supreme Court,
and I am grateful that clients have trusted me with those very
important matters that they have.
You know, what I have learned is that--I know a lot of
people talk about how active the Supreme Court is in
questioning, but as a lawyer speaking on behalf of clients, we
really value that opportunity to engage with them and wrestle
with the difficulties in the law. Now, there is a balance
between questioning and getting too active. I think the Chief
Justice recently commented on that to make sure--we want to
make sure the lawyers can get their story in because it is
their client's day in court. So you have to find a balance
between engaging the lawyers so that you can learn from each
other about the proper legal answers, but understanding the
duty to give everyone their full and fair day in court.
Senator Franken. And when you are doing that, are you as an
advocate before the Court under a time limit? I mean, there is
a given amount of time, right?
Ms. Millett. There is, absolutely.
Senator Franken. So is there a tension between trying to
get a word in and strategically just waiting until the Justices
in that case have just talked themselves out so you can take a
moment and talk? Is there a strategic way to do that?
Ms. Millett. There is absolutely--there are strategic ways.
I do not want to give them all away right here, but I will tell
you that it is--I cannot wait normally for them to stop
talking, so you have to find ways to respectfully engage them
in the dialogue.
Senator Franken. Okay. There was a question about an
activist judge and Justice Sotomayor in her confirmation
hearings being activist because she had ruled that way on the
Second Amendment. But would it not have been more activist
actually to rule the other way?
Ms. Millett. Well, I think that is an important observation
that you are making, because the point I was trying to explain
was that all the Second Circuit did in that case was say--a
case where they were asking to hold that the Second Amendment
individual right was incorporated into the 14th Amendment as
against the States. The Supreme Court, as they said in Heller
Footnote 23, you know, they said--they cited their own
precedent and said, ``We have held that it applies only against
the Federal Government.'' So the Second Circuit was duty bound
to apply that as well as a recent Second Circuit decision. One
panel is bound by another panel in a court of appeals.
So that panel really had its hands tied, so it left the
decision where it needed to be and where the Supreme Court
ultimately resolved it in the McDonald case, and that was for
the Court to overrule its own precedent.
Senator Franken. So as a circuit court judge, it is really
activist when what you are doing is overturning stare decisis;
in other words, when you are--when the Supreme Court has
decided something and you contradict that decision, isn't that
what being activist is in a sense?
Ms. Millett. It is certainly--you know, judges on lower
federal courts are bound by Supreme Court precedent. When you
have on-point Supreme Court holdings, particularly as recent as
Heller Footnote 23, and you have a panel--panels are bound by
other panels unless the Court goes en banc. So both of those
are meant to be restraints on the judges.
Senator Franken. My time is up, but I would point out that
is why saying that, to call what then-Judge Sotomayor did
``activist'' is actually almost the opposite of what she, in
fact, did.
Ms. Millett. I would agree.
Senator Franken. Okay. Thank you.
Thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator Franken.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman. And thank you for
joining us today and for bringing your nice family with you. I
look forward to asking Ms. Millett a few questions, but before
I do so, I want to address an issue that Senator Grassley
mentioned briefly a few minutes ago, and that is this
administration's push to fill three additional spots on the DC
Circuit at a time when, based on a standard set several years
ago by Senator Democrats, there was no need, no pressing need
certainly, to fill those vacancies.
On July 27, 2006, a number of my Democratic colleagues,
including several current Members of this Committee, signed a
letter arguing that an additional nominee to the DC Circuit
``should under no circumstances be considered must less
confirmed by this Committee before we first address the very
need for that judgeship.'' The letter argued that the DC
Circuit's caseload simply did not justify filling an additional
judgeship for that court.
Based on that objection and despite Peter Keisler's stellar
record and the fact that he had really broad-based bipartisan
support throughout the legal profession, Democrats in the
Senate blocked his nomination to the DC Circuit. And today I
believe we find ourselves in much the same situation that we
found ourselves in 2006.
Ms. Millett has an impressive record. There is no question
about that. But before we consider, much less confirm, her
nomination, we must look carefully at the need for an
additional judgeship on the DC Circuit. And I believe any
objective evidence-based look at the court, at that court,
makes plain that it simply does not need an additional judge at
this time.
No one who is familiar with the DC Circuit's current
workload can honestly say that the court is overworked or in
need of an additional judge. While other federal circuit courts
struggle to keep up with rising caseloads, in each of the last
several years the DC Circuit has canceled regularly scheduled
argument dates due to lack of pending cases. Especially at a
time when other circuit court vacancies need to be filled, and
the administration has failed to put forward judicial nominees
for seats that are considered judicial emergencies, it raises
questions for the administration to focus so heavily on a court
that does not need additional judges.
The administration appears to be pushing to confirm
additional unneeded judges to this court because of that
court's important role reviewing executive actions. The DC
Circuit has primary responsibility to review administrative
actions taken by many federal departments and agencies. The
court's decisions, including its recent invalidation of the
President's unconstitutional recess appointments, often have
significant political implications. With this administration's
controversial executive agenda, including recently announced
plans to effect climate change through Executive actions, the
President appears to have targeted the DC Circuit in the hope
that he can stack the DC to his advantage.
Both Democrats and Republicans have repeatedly stated that
the DC Circuit has too many authorized judgeships. I believe
the best approach is to reallocate the DC Circuit's unneeded
judgeships to other federal appellate courts whose caseloads
are many times higher. Senate bill 699, the Court Efficiency
Act, of which I am a cosponsor, would do exactly that.
So setting aside that for a moment, I want to turn briefly
to your judicial philosophy. You said a minute ago that you do
not have a judicial philosophy. That sometimes worries me. That
usually would have been a concern to me because I think no one
should come to a judgeship, especially one of this importance,
without a judicial philosophy. But fortunately you follow that
up with something that suggested that you have one, and one
that seems me to be a good one.
You embellish, first of all, that one of your role models
as a jurist would be Judge Tang in the Ninth Circuit for whom
you clerked, and you said that he starts from the assumption
that there is a right answer in the law, that you can find the
answer based on the text. So do you stand by that? Is that
something that would inform your decision making as a jurist if
you were to be confirmed to this position?
Ms. Millett. Certainly I would--and thank you for the
question to allow me to elaborate on that. The text and
precedent in any given case, because sometimes the text is
ambiguous and you need to look at precedent, or sometimes
precedent is given new light to the meaning of the text. But
the two of those together, that is what I would call myself
most loyally. I would be a loyalist to text and precedent, I
think is the best I can do. I am not sure if that counts as a
philosophy or just a way of doing business, but it is what
Judge Tang taught me.
Senator Lee. Fantastic. When you were initially asked about
judicial role models, you brought up Chief Justice John
Marshall, and I think if we had a nickel for every time we hear
that one as the first choice, we would all be wealthy. So that
is why it was good that you added to that by adding the judge
for whom you clerked.
You also mentioned that as a woman you particularly admire
Justice Sandra Day O'Connor and Justice Ruth Bader Ginsburg.
And yet those two do not necessarily have the same judicial
philosophy. Why did you select those two?
Ms. Millett. Well, I picked them in part because I just
have great admiration. As someone who was in law school at the
time Justice Sandra Day O'Connor--a young lawyer at the time--
was nominated as the first woman on the Supreme Court, it was
an important affirmation to me of the message that you can do
what you want to do as a lawyer and that this country's--you
know, the promises of the Constitution are very real and very
concrete. So she and Justice Ginsburg, with all her work
helping to establish equal rights for women, are simply people
who are very important in a very sort of ``rubber meets the
road'' way for me in my legal career.
Senator Lee. Thank you, Mr. Chairman. I see my time has
expired.
Senator Schumer. Senator Coons.
Senator Coons. Thank you, Chairman Schumer. Thank you, Ms.
Millett. Congratulations on your nomination, and welcome to you
and your family and supporters and friends.
In April, I had the distinct privilege of chairing the
confirmation hearing for Sri Srinivasan, who is now, of course,
a confirmed judge serving on the DC Circuit. And at the time, I
noted that it would be hard to imagine a candidate who was
better equipped with a breadth and depth of legal experience as
a law clerk, as a government attorney, as a private advocate.
And in reviewing your record, it is apparent we did not have to
imagine you. Here you are. Your experience and your
qualifications make you an exceptional candidate, and I want to
thank you and your family for your willingness to serve.
In my view, your record of advocacy is marked by
excellence, not partisanship, and I think it is evident in the
bipartisan letter of support the Committee received on your
behalf signed by many former Solicitors General, including
Garre, Olson, Clement, and Starr. And I sincerely hope that
this Committee and the Senate will treat your nomination with
due respect and in regular order, just as it did when
confirming judges to the vacancies in the 9th, 10th, and 11th
seats to the DC Circuit in the prior administration.
But let me focus on you. If confirmed, you would be the
fourth active female judge in the DC Circuit, bringing the
circuit court to near parity, making it the circuit court with
the second highest proportion of women judges. You have spoken
about diversity on the bench. You just answered a question from
Senator Lee about it.
Would you tell us why you think gender diversity, as well
as diversity in terms of race or other forms of background, is
vital for the judiciary, given your opening comment that you
have been the voice of your clients and, if seated on the
bench, you would be the voice of the rule of law without regard
to background or personal experience or faith or other critical
features?
Ms. Millett. The importance of diversity runs two ways, in
my view. It runs into the court because the most important
trait for any judge, in my view, is to be open-minded and
impartial and have a full appreciation not just of what you
know but what you do not know. And I think that diversity in
all forms--I noted Justice Sotomayor when she was nominated had
patent experience. I may have been the only person who focused
on that aspect of diversity. But diversity in all forms simply
increases open-mindedness amongst people. And then diversity
work outwards. In the same way that Justice O'Connor's
nomination did for me, it is an open symbol to everyone in the
country that opportunities here are based on merit and hard
work, not race, gender, ethnicity, religion, or any of those
lines.
Senator Coons. I was struck in reviewing your very
extensive resume of Supreme Court cases that you have actually
lost your fair share of cases in which you have appeared. How
important is it to be right? And if you are outvoted on a
three-judge panel, do you conclude your legal analysis was
wrong?
Ms. Millett. Well, thank you for the reminder.
[Laughter.]
Senator Coons. I was just sticking up for Senator Franken.
[Laughter.]
Ms. Millett. I always do my best.
I think the role of a lawyer, of course, is to put on the
best argument you can for a client, but I respect the role of
the judges or justices in the system. They make the call. I
make the case; they make the call. If I were to be confirmed as
a judge, I would know that I am now a call maker, and that is
an incredibly weighty and serious responsibility. And I would
exercise it--I am an open-minded person, and I would listen
closely to colleagues. But if, at the end of the day, law and
precedent told me the answer was different from colleagues,
even if they were more senior, that is what I would be duty
bound to enforce. And I suspect if you ask some of these people
in the audience, they will tell you that I am capable of
sticking to my positions when I need to.
Senator Coons. Parenting and judicial decisions often
have----
[Laughter.]
Senator Coons. Let me if I might, with the indulgence of
the Chair, ask one last question about a particular case that
was of interest to me. In 2008, you represented victims of
torture at the hands of the Somali Government in Samantar v.
Yousuf. In that case, you argued--and I believe you convinced
all nine Justices--that the grant of immunity in the Foreign
Sovereign Immunities Act pertains really to foreign governments
and their instrumentalities, not to individual officials who
might be sued in their individual capacity. You talked about
how you would handle reversal. There has been, in my view, some
movement in the law on this. Since your representation in
Samantar, the Supreme Court has decided several cases that are
sharply limited to liability of foreign citizens in U.S. courts
for egregious violations. In Mohamad v. Palestinian Authority,
the Supreme Court held that Torture Victims Protection Act
applied only to individuals and not to corporations. In Kiobel
v. Royal Dutch Petroleum, the Supreme Court ruled that the
Alien Tort Statute, which was enacted all the way back in 1789
and had been used for more than 30 years to reach foreign
perpetrators of torts in violation of the Law of Nations, could
not be used except in rare cases with a close nexus to the
United States.
Given your representation in Samantar, do Mohamad and
Kiobel represent marked departures from settled law? What do
you believe is motivating this new approach to the
interpretation of human rights law? And what is your view about
its potential trajectory, if that is appropriate?
Ms. Millett. Well, I would not want to express a view on
trajectory because those are precisely the types of questions
that could come before me, were I to be confirmed to the court.
The questions in Kiobel were different than the ones that I was
raising in the Samantar v. Yousuf case. So each of them were
decided as matters of statutory construction.
The Kiobel case is part of a body of law where the Supreme
Court has become very interested in examining
extraterritoriality limitations on statutes, and obviously,
were I to be confirmed, I would adhere to all Supreme Court
precedent and also, you know, follow the text of statutes,
whether existing ones or, if the Congress were to respond to
decisions, the new text enacted by Congress. Whichever text is
before me, that is what I would apply.
Senator Coons. Thank you. I see my time is up. Thank you.
Senator Schumer. Senator Cruz, if you have questions.
Senator Cruz. Thank you, Mr. Chairman.
Ms. Millett, thank you for being here. Thank you for your
able testimony. You and I have known each other a long time,
and you are a talented and skilled appellate advocate. You are
someone who has earned high respect in the Supreme Court bar,
which is a community where earning respect there means
something. And so I congratulate you on your nomination and
your able testimony this morning.
I will also note that you find yourself in the midst of a
broader battle and a battle on issues many of which are
unconnected to your professional background and qualifications,
but issues that, sadly, have consumed the DC Circuit for
decades.
There are a lot of political games when it comes to
judicial nominations. Both sides have decried the political
games concerning judicial nominations but, unfortunately, the
DC Circuit, second only to the U.S. Supreme Court, has been a
battleground on both sides for the politicization of judicial
nominations. And a number of excellent nominees have been named
to the DC Circuit previously by Republican Presidents. And our
friends on the Democratic side of the aisle have chosen to
prevent their nominations from going forward and to prevent
them for what I believe were partisan reasons.
Peter Keisler, who has been discussed already in this
hearing, who is a talented and able lawyer, and yet our friends
on the Democratic side of the aisle did not allow that
nomination to proceed.
Miguel Estrada, someone whom you and I both know well, is
another superbly talented appellate lawyer, someone whose
nomination was made at the beginning of the Bush
administration, and the Democrats in the Senate repeatedly
acted to stop his nomination from proceeding. Most tellingly, a
senior Democrat then on this Committee in writing, in memos
that became public, stated that Miguel Estrada's confirmation
must be prevented ``because he is Hispanic,'' which in my view
was troubling, was cynical, was nakedly partisan, because
Miguel was viewed, I think with good reason, as having a
significant prospect of being the first Hispanic Supreme Court
nominee, and so Senate Democrats wanted to make sure Miguel did
not get anywhere near the DC Circuit so that he would not be
allowed to build a judicial record that could serve as a
predicate to going to the Supreme Court.
Now, right now the DC Circuit is evenly divided among
active judges with four Republicans and four Democrats. And you
find yourself one of three nominees from the President. The
President and senior Democrats on this Committee have made
clear that they want to pick a fight on the DC Circuit. They
want to pick a fight on the DC Circuit, and, unfortunately, I
believe part of this pressure, part of the effort of stopping
qualified Republican nominees and then deciding to pick a fight
now is a desire to pack the Court.
The DC Circuit has been a court that has been holding this
administration accountable and, in particular, holding
rulemaking accountable that has been contrary to federal law.
And I believe there is an activist base that is pressuring the
President, that is pressuring senior Senate Democrats, to get
judicial nominees on the DC Circuit to protect the regulations
coming from this administration. And I think any effort to pack
the Court because the administration does not like the outcomes
of judges applying the law fairly should be decried.
And so there are workload issues that I think need to be
discussed, but I think there is a broader context that is
irrespective of your fine qualifications, but to be honest, was
irrespective of Miguel Estrada's qualifications or Peter
Keisler's.
And so I think this is going to be a continued issue of
discussion and significant agreement on the Senate, because I
think partisan politics has driven this Committee's approach to
the DC Circuit for over a decade. I think that is unfortunate.
I would far rather see a situation where able judges were
confirmed irrespective of that. But it is not consistent with
our responsibility to allow one party to prevent qualified
judges from going to the court and at the same time to enable
packing the court to reach preferred outcomes.
So I thank you for being here, and I think it is
regrettable the overall context of this dispute, which, as I
said, is irrespective of your very fine professional
qualifications. Thank you.
Senator Schumer. Thank you, Senator Cruz.
Thank you, Ms. Millett. We very much appreciate your being
here and answering questions, and we are now ready to move on
to the next panel.
Ms. Millett. Thank you all.
Senator Schumer. Will Ms. Brown, Ms. Wolford, and Mr. Woods
have their seats? I am going to make my introDCion. I am here
in my role as New York Senator, not so much as chairing this
hearing, to introduce our two fine nominees from New York, and
let me begin by doing that.
Can we have a little order in the room? Let us close the
door, please.
[Pause.]
Senator Schumer. Okay. I think we are ready to start. Can
we close that door back there, please? Thank you. Great.
SCHUMER, HON. CHARLES E., A U.S. SENATOR FROM THE STATE OF NEW
YORK, PRESENTING GREGORY HOWARD WOODS, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK AND ELIZABETH A.
WOLFORD, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT
OF NEW YORK
It is my distinct honor to introduce two eminently
qualified nominees to the Committee, both from New York: Greg
Woods and Elizabeth Wolford.
Mr. Woods and Ms. Wolford are the 17th and 18th nominees
for district court judgeships in the State of New York that I
have had the pleasure of recommending to the President in the
last four years. Despite New York's deep bench of legal talent,
the search for qualified candidates for federal judgeships is
not an easy one. As I have said multiple times, I look not just
for exceptional talent and skill, but for moderation of
viewpoint and temperament and, all else being equal, for
diversity so that our bench in New York truly resembles the
people it serves.
Throughout their careers, Mr. Woods and Ms. Wolford have
not only displayed tremendous legal talent but committed
themselves to helping their respective communities. And as my
colleagues will see, Mr. Woods and Ms. Wolford represent the
best of the legal profession and are well equipped to serve on
the district courts for the Southern and Western Districts of
New York.
Although Mr. Woods is a nominee for the Southern District
of New York, Senator Coons will take pleasure in knowing that
he originally hails from Delaware, and I saw Senator Coons
greet you personally, Mr. Woods.
After graduating magna cum laude from Williams College, he
attended Yale Law School where he distinguished himself as its
top writer and oralist. Yet his passion for public service led
him to take his first job out of law school at the Department
of Justice, where he worked as a trial attorney in the
Commercial Litigation Branch of the Civil Division. In this
capacity, Mr. Woods focused on fighting fraud and maintaining
the integrity of our public programs and private institutions.
Despite his relative youth--at least relative to most of us
here today on this panel--Mr. Woods' work in the private sector
is similarly impressive. As an associate and partner at the top
new law firm of Debevoise & Plimpton for over a decade, Mr.
Woods participated in some of the largest, most complex
financing deals and acquisitions. Still, despite his active
practice, he found time to give back to New York and the
Nation, serving on Debevoise's pro bono committee and on the
boards of various community organizations.
To name a few accomplishments, he helped nonprofits
navigate tax policy, assisted small businesses obtaining
financing so they could grow and create jobs, and secured
asylum for an African dissident facing torture at home.
Mr. Woods has since returned to Washington, and he
currently serves as General Counsel at the Department of
Energy, overseeing its vast legal portfolio. And prior to this,
he was Deputy General Counsel at the Department of
Transportation, where he similarly honed his experience in
regulation and litigation.
By any and all accounts, Mr. Woods is a brilliant legal
mind who exemplifies the spirit of public service we seek in
our district courts.
Now, second, I have the privilege of introducing another
dedicated and skilled attorney, Elizabeth Wolford, before this
Committee today. Born in the great city of Buffalo, she moved
east and grew up in Rochester and attended Colgate University,
a little further east on the Erie Canal. After studying law at
Notre Dame, she again returned to New York, following in her
father's footsteps to practice law in Rochester.
Ms. Wolford has been a remarkable leader in the Rochester
legal community ever since she graduated law school, working as
an associate and partner at the Wolford law firm with her
family. Her clients include some of Rochester's most
recognizable institutions, including the University of
Rochester, Rochester Institute of Technology, Excellus, and
Eastman Kodak. Her practice spans every area of law from
criminal proceedings to contract actions, providing her with
the expansive expertise that is essential as a judge.
Ms. Wolford has been a tireless advocate for her clients as
well as for the Rochester community. In addition to serving on
countless charitable boards, she has a noteworthy history of
pro bono representation. The court on which she may soon sit
even awarded her its Special Service Award in recognition of
her advocacy in civil rights matters. And I am very proud to
say that, upon confirmation, Ms. Wolford would be the first
female judge on the U.S. District Court for the Western
District of New York. I have always believed in diversity on
the bench. It is important that America's courts reflect the
diversity of us as a people, and the Western District is long
overdue in this respect.
Ms. Wolford has been a powerful and principled community
leader for over two decades, and I feel confident she will
excel in her new role.
I want to thank both of you for your willingness to be here
today, thank your families--without whom I know you would not
be here--and I look forward to hearing from our nominees. Of
course, Ms. Brown, you had two very fine introducers earlier
today, so I need say no more. They did a great job.
So will the witnesses please stand to be sworn? And please
state your names.
Mr. Woods. Gregory Woods.
Ms. Wolford. Elizabeth Wolford.
Ms. Brown. Debra Brown.
Senator Schumer. 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?
Mr. Woods. I do.
Ms. Wolford. I do.
Ms. Brown. I do.
Senator Schumer. Thank you. You may be seated.
Now, we will call on each of you for a brief opening
statement, if you wish, and certainly the introduction of your
beautiful families who will be seated--``arrayed'' behind us is
the right word. First, Mr. Woods.
STATEMENT OF GREGORY HOWARD WOODS, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
Mr. Woods. Thank you very much, Senator. First, I would
like to thank Chairman Leahy, Ranking Member Grassley, and you,
Senator, both for your recommendation and for chairing this
hearing, and the other Senators on the Committee for
considering my nomination.
I do have a number of family members here: my wife, Mary;
my two children, Ainsley Mae and James, who are fifth and third
graders--or sixth and fourth graders, excuse me, in New York
City schools. They are down here from camp.
My father, Gregory Woods; my mother, Kathy Woods.
I have a number of friends here with me, too, from around
the world. Two I just want to mention by name: my DC roommate,
Lieutenant Commander Moet, who is here, and my fantastic
assistant, Kathy Dickerson, both of whom see me more or as much
as all the members of my family.
Senator Schumer. Great. Will you all please rise so we can
greet you personally? Thank you so much for coming.
[The biographical information of Mr. Woods follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Ms. Wolford.
STATEMENT OF ELIZABETH A. WOLFORD, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF NEW YORK
Ms. Wolford. Thank you, Senator. Thank you, Senator
Schumer, for recommending me for this position. I want to thank
the President for the nomination. It really is quite an honor.
I want to thank the Committee Ranking Member Grassley for
participating in scheduling this hearing here today.
I do have some family members that I would like to
acknowledge who have made the trip here.
My mother and father, Mike and Bea Wolford. I practice law
with my dad and have done that for over 20 years now.
My brother, Jim Wolford, is here. He is also one of my law
partners, and he is here with two of his children, my niece and
nephew, Christine and Thomas Wolford.
My brother, John, is also here. He did not go into the
practice of law. He served in the Air Force, actually, as a
pilot for 14 years and retired at the rank of major after
serving in Iraq and Afghanistan. And he is here with his two
children, my niece and nephew, Madigan and Michael.
So thank you.
Senator Schumer. Thank you. If you all would please rise so
we can greet you? Thank you all for coming, and it is great to
see all the kids here so proud of their parents. It is a
wonderful thing.
[The biographical information of Ms. Wolford follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Ms. Brown.
STATEMENT OF DEBRA M. BROWN, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF MISSISSIPPI
Ms. Brown. Thank you, Senator, for providing the
opportunity for me to recognize those persons that have
supported me throughout this process and without whom I would
not be sitting here today.
I would like to first thank President Barack Obama for the
nomination. It is a high honor, and I am very humbled by it.
Thank you, Chairman, and thank you to the Ranking Member
and all the Members of the Senate Judiciary Committee for the
opportunity for this hearing, and thank you, Senator Schumer,
for presiding.
I want to extend special gratitude to my home State
Senators for their very kind words and their presence here
today among their very busy schedules.
I would like to recognize my family members. First,
starting with my very, very, very proud parents, Ruthie Brown
and Willie James Brown, who traveled here from Yazoo City,
Mississippi. Three of my five sisters are here: my sister,
Pamala Feehan, who traveled from Fort Myers, Florida; my
sister, Ingrid Brown, who traveled here from Memphis,
Tennessee; my sister, Celeste Larkins, who is here from Frisco,
Texas; and my niece, Tylar, who is Celeste's daughter, is here
also from Frisco, Texas. And I must say that I believe her
excitement and enthusiasm for this occasion is very close to
surpassing mine.
[Laughter.]
Ms. Brown. At the point right after she found out about my
nomination, I think it was about every 15 minutes at least she
told me how awesome this occasion was, my nomination, and I
definitely agree with her.
I also have here a cousin, Tamara Brown, who lives here in
the DC area.
Finally, I would like to thank my law firm family, Wise,
Carter, Child & Caraway. They have been a great support. They
have been patient with me throughout this process, and I very
much appreciate their dedication to me and allowing me to
pursue this goal.
Thank you, Senator.
Senator Schumer. Thank you. Will your nice family and
friends and supporters please stand? Welcome. Great to see you,
and I see your niece smiling from one ear to the other.
[Laughter.]
Senator Schumer. Please be seated.
[The biographical information of Ms. Brown follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Schumer. Okay. Well, I am going to ask general
questions for all of our nominees here, so I will ask you the
question and then we will move from my--well, from Mr. Woods to
Ms. Wolford to Ms. Brown.
First, tell us a little bit about why you want to be a
judge and how you believe your experiences up to this point
will help you do the job. Mr. Woods.
Mr. Woods. Thank you, Senator Schumer.
I think as an attorney there is--I believe highly in the
importance of public service. As a lawyer, I think that there
is nothing more important that we can do as practicing lawyers
to serve the public than to act as judges.
My personal experience, I think I have acquired the skills
necessary to do the job. In my case, I also had a broad range
of experiences with different areas of law and practice. And I
think that is beneficial to the bench, hopefully particularly
so in New York City, which is such a commercial capital of the
United States. My experience as a commercial and financial
lawyer hopefully will help contribute to my work on the bench,
if I am confirmed.
Senator Schumer. Thank you.
Ms. Wolford.
Ms. Wolford. Thank you, Senator. I obviously worked for the
same legal employer for over 20 years, so there were not a lot
of positions that I would have ever considered leaving for. But
the district court judgeship, I think, is one of the most
interesting, challenging positions that one could hold in the
legal profession, and it also provides a great opportunity for
public service. I have been interested in public service my
whole career, but this would allow me an opportunity to really
give back to the community and to the public in a way that I
have not yet been able to.
Senator Schumer. Great.
Ms. Brown.
Ms. Brown. I believe serving as a federal judge is one of
the highest honors that I can imagine. The federal courts are
important to citizens every day of their life. It touches them
in small and large ways. And the courts, more than anything,
belong to the citizens. And for me to be a public servant and
be a part of that scheme is just incredible in my mind.
I think I prepared myself, given my 16 years of litigation
experience. More than anything, it has taught me work ethic. It
has taught me to be organized. It has taught me to be
respectful of everyone that I come in contact with, from
opposing counsel to, of course, the court, the witnesses, the
jury, everyone involved in that process.
It also has taught me to be a good organizer and to manage
things very carefully. It has taught me patience and how to
listen very well. And for all those reasons, I think that I
have the qualities to be on the federal bench.
Senator Schumer. Thank you. And now we will start with Ms.
Brown and move the other way, just to mix it up a little.
To each of you, what do you believe are the most important
characteristics for a judge to have? Ms. Brown.
Ms. Brown. I believe one of the most important
characteristics is for a judge to respect his or her position.
From that, I believe flows all of the other attributes that I
admire in judges: patience, courteousness, definitely adherence
to the rule of law and adherence to judicial precedents. I
believe judges also should be modest in a sense and carry
themselves well both in the court and outside the court, that
they should have unyielding integrity and courage for those
occasions when maybe their decisions are not popular or when
they feel pressures from various groups or parties to rule in a
manner that may be contrary to the law.
For all of those traits, I believe that those are things
that make a very successful judge, make a judge be more
respected and help citizens respect the courts and the
decisions that they have to make.
Senator Schumer. Thank you.
Ms. Wolford.
Ms. Wolford. Thank you, Senator. Ms. Brown offered a very
good summary of the qualifications that are necessary for a
judge to hold. I agree that respect is one of the most critical
aspects, respect for the law, respect for the parties, and
respect for the position. And, in addition, I think open-
mindedness and patience are critical to be an effective judge.
Senator Schumer. And Mr. Woods.
Mr. Woods. Thank you. I agree wholeheartedly with my
colleagues. I would say fidelity to the rule of law,
intellectual curiosity, hard work, dedication to do the work
necessary to get the right answer, and modesty, and I would say
humility, to be open-minded and to treat the parties that
appear before you with dignity and respect.
Senator Schumer. Thank you.
Senator Grassley. My time has expired.
Senator Grassley. I will probably submit some questions for
answer in writing.
Senator Schumer. Without objection.
Senator Grassley. Thank you, but I do want to ask some now.
Senator Schumer. Go right ahead.
Senator Grassley. Since you served as General Counsel at
the Department of Energy, and this is not going over decisions
you made there that I am finding fault with, it is just that
you--when you had your confirmation hearing, or as General
Counsel your job was to ensure the Department complies with the
obligations under the law. And how would you grade yourself on
that performance? And then before you answer that question, let
me ask you the second and last question. At that confirmation
hearing, you agreed to a full review of all the Department of
Energy current authorizations and to help identify if there are
any areas duplicative or perhaps unnecessary. Did you keep that
commitment? But then in regard to your possible judgeship,
would you explain how that experience would affect your
decision making as a judge?
Mr. Woods. Great. Thank you very much, Senator. As a judge,
Senator, I think I would approach every issue that came before
me on the facts of the case in front of me, and I would look to
applicable precedent to reach the hopefully correct decision in
that case or controversy.
Senator, my job as General Counsel at the Department of
Energy requires me to be an advocate on behalf of my client,
and I completely recognize that the role of a judge is
different from that of an advocate. And as a judge, I would
ensure that I followed the process that I just described.
Senator Grassley. Do you think that you did what you
promised the Committee you would do, that you were able to
review those areas where there was duplication and do something
about things that were unnecessary?
Mr. Woods. Thank you, Senator. I believe that Senator
Murkowski asked me if I would work with her on any efforts that
she wanted to undertake, and, Senator, I believe that many of
the requests that Senator Murkowski has asked of us I have
accommodated.
Senator Grassley. Okay. Ms. Wolford, one of the questions I
ought to ask you, since you are leaving a law firm now, what
recusal policies would you implement in regard to your firm?
Ms. Wolford. Thank you for that question, Senator. I would
recuse myself from any matter that the Wolford law firm was
handling or in which it was a party. Both my father and brother
are with the firm and will continue to be with the firm, and it
would be inappropriate for me to handle any matter in which the
firm was appearing.
Senator Grassley. I think your questionnaire said that only
five percent of your litigation experience has been involved
with criminal matters. So you are going to have to obviously do
both civil and criminal as a judge. What experience do you have
with criminal law? And probably more importantly, what steps
have you taken or will you take to familiarize yourself with
the area of criminal law?
Ms. Wolford. Thank you for that question, Senator. I have
had some exposure to criminal law as part of my practice, but
there is no question that it is five percent, as I indicated in
the questionnaire, and I absolutely have to get up to speed in
that area of the law.
First of all, I will read anything I can to come up to
speed, including materials that I have already received from
the Federal Judicial Center. And there is one thing I have
learned, Senator, in my over 20 years of practice, is that
there is absolutely no substitute for hard work. And that
certainly will not change if I am fortunate enough to be
confirmed.
Senator Grassley. I will go to Ms. Brown. I want to give
you a chance to respond to something you wrote when you were in
law school, how it applies today. You wrote from the
Mississippi Law Journal, and I think it was arguing that
conservatives do not actually want a colorblind electoral
system that they say they want because that would mean the
system will be ``infiltrated by members of various races who
are comparably capable of performing the tasks of government.''
You can explain that any way you want to, but I would have
this specific question: Do you still feel that, as you put in
that article, ``in order to treat some people equally, we must
treat them differently'' ? Do you still feel that way?
Ms. Brown. Thank you for that question, Senator. As you
pointed out, I did write that article many years ago while I
was in law school. It was the backdrop for a hypothetical
electoral scheme that I wanted to explore, more as a
theoretical piece.
The quote that you mention, I believe, is part of the
backdrop leading up to my proposed hypothetical model. I
believe that the quote that you mentioned is something that--
and, you know, I gathered together lots of commentary and
theorists on the issue and basically cited to them as part of
the backdrop.
I do believe, although I do believe my personal beliefs
would not influence any decision I had on the bench, that we as
a society should take a very thoughtful look at race and any
type of diversity issues here in the Nation, and that it would
bode us all well to do that.
I believe the article also concluded as well that not only
conservatives would like this model that I propose, but neither
would liberals, because I think somewhere we need to meet in
the middle in that regard.
Senator Grassley. Again, as I asked Ms. Wolford about your
having such great work in civil matters, do you have experience
in criminal law? And then, last, if you have not had that
experience, how would you familiarize yourself with that in
your work if you are confirmed?
Ms. Brown. My litigation practice has been 100 percent
civil. I have not had any criminal experience at all. I,
however, would immerse myself in the federal procedure rules
and the federal statutes, look at the Sentencing Guidelines. I
think that preparation and study is the way to achieve that
goal.
I also would consult with--we have some federal judges in
Mississippi who had absolutely no criminal experience at all,
and I would consult with them about how to efficiently and
effectively get up to speed so that I would be prepared to rule
on those matters.
Senator Grassley. Okay. Thank you, Mr. Chairman.
Senator Schumer. Well, thank you, Senator Grassley. I thank
all three witnesses. I would just ask unanimous consent--there
are 21 letters that I have here in support of Patricia Millett.
I would ask unanimous consent to add them to the record,
including letters from Carter Phillips and Peter Keisler, who
are attorneys; Douglass Maynard of the New York Police
Department; Chuck Canterbury, president of the Fraternal Order
of Police; and 37 assistant deputy and acting attorneys general
who signed the letter. Without objection.
[The letters appear as submissions for the record.]
Senator Schumer. We want to thank the witnesses. We want to
thank their beautiful families and proud families for being
here.
The record is going to remain open for seven days for
people to submit questions in writing which you may be asked to
submit to us, and speaking, I think, on behalf of the whole
Committee, whatever the outcome is, we are proud of all three
of you.
Mr. Woods. Thank you.
Ms. Wolford. Thank you.
Ms. Brown. Thank you, Senator.
Senator Schumer. With that, the hearing is adjourned.
[Whereupon, at 11:48 a.m., the Committee was adjourned.]
Miscellaneous Submissions for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF CORNELIA T. L. PILLARD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT; HON. BRIAN MORRIS, OF MONTANA,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MONTANA; HON. SUSAN P.
WATTERS, OF MONTANA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
MONTANA; JEFFREY ALKER MEYER, OF CONNECTICUT, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF CONNECTICUT; AND LANDYA B. MCCAFFERTY, OF NEW
HAMPSHIRE, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW
HAMPSHIRE
WEDNESDAY, JULY 24, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Whitehouse, Klobuchar, Franken,
Coons, Blumenthal, Hirono, Grassley, Lee, Cruz, and Flake.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. The Committee will be chaired by Senator
Blumenthal, who is on his way, but I want to open it today by
welcoming five excellent judicial nominees, and, of course, I
do thank Senator Blumenthal for chairing this. He is the former
Attorney General of Connecticut and understands these things as
well as anyone.
We will first hear from Nina Pillard, who is President
Obama's nominee to fill one of the three current vacancies on
the DC Circuit.
Professor Pillard has had a distinguished career as a
practitioner and as an academic. She earned a unanimous rating
of ``well qualified'' from the ABA Standing Committee on the
Federal Judiciary. She has argued nine cases before the Supreme
Court and briefed 18 others on behalf of a range of clients.
She spent her legal career in public service, in the Office of
the Solicitor General and the Office of Legal Counsel, and at
the American Civil Liberties Union and the NAACP Legal Defense
and Educational Fund. For the past 13 years, she has worked as
professor at my alma mater, Georgetown University Law Center.
At Georgetown, she serves as the faculty co-director of the
Supreme Court Institute, where she has helped prepare fellow
lawyers in dozens of cases. I have been in that mock-up room at
Georgetown, and I have had everybody from--Chief Justice
Roberts has told me that he would practice cases when he was
arguing cases before the Supreme Court there. The law school is
a little bit nicer than it was when I went there.
But she is lucky enough to have family in the great State
of Vermont. Her sister lives in Charlotte on the shore of our
Great Lake, Lake Champlain. I understand she and her family
spend quite a bit of time in Vermont, so I am glad to see the
family, and she will introduce them when she is sworn in.
I would note that a number of my friends on the other side
of the aisle have made comments about the history of the
Committee's consideration of nominees to the DC Circuit. It is
certainly inaccurate to suggest that there is any comparison
between a letter sent eight years ago by Committee Democrats
expressing concerns about a particular nominee and the effort
now to strip the DC Circuit of three of its 11 judgeships.
The 2006 letter made reference solely to the 11th
judgeship, and the caseload issue was raised, in addition to
several substantive concerns about the nominee. We did note
that, as sometimes happens, Committee Republicans had blocked
and opposed President Clinton's nominees to the DC Circuit's
11th seat, even though the caseload was higher during the
Clinton administration than during the Bush administration.
When the DC Circuit's caseload was around 190 pending
appeals per active judge during the Clinton administration,
Senator Grassley and other Republicans opposed filling the 12th
and even the 11th seat and delayed the confirmation of Merrick
Garland. At that time, even Senator Hatch said that this was
``playing politics with judges.'' Of course, as soon as we had
a Republican President, they had no problem filling that 11th
seat, and that was when there was 121 pending appeals per
active judge at that time.
I would remind my friends on the other side of the aisle
that they felt they needed that 11th seat with 121 pending
appeals per active judge. Of course, it was a Republican
nominating the judge.
But now the caseload is up to 177 pending appeals per
active judge, and the need does not seem as great because there
is a Democratic President.
You know, the numbers, of course, are far more favorable to
President Obama for filling these seats than it was for
President Bush. And I would hope that President Obama is not
going to be held to a different standard as though somehow he
is different than President Bush.
No Senate Democrat opposed the May 2003 confirmation of
John Roberts to the DC Circuit, even though it brought the
caseload all the way down to its lowest level in the 20 years--
111 pending appeals per active judge. So now that the load is
much, much higher than when we confirmed John Roberts to the
circuit, I hope that we can start working on Professor
Pillard's nomination and those of Patricia Millett and Robert
Wilkins.
We also welcome Landya McCafferty, nominated to the
District of New Hampshire; Jeffrey Meyer, who is nominated to
the District of Connecticut; and Brian Morris and Susan
Watters, who are both nominated to judicial emergency vacancies
in the District of Montana. All have the support of their home
State Senators, both Republicans and Democrats. I hope we can
move forward on them.
I will yield first to Senator Grassley, and then I am going
to turn the gavel over to Senator Blumenthal. But I know
Senator Baucus is here and wants to speak of the nominations in
the Big Sky country.
Senator Blumenthal [presiding]. Senator Grassley.
Senator Grassley. I would like to let Senator Baucus go
ahead.
Senator Blumenthal. Senator Baucus, Senator Grassley has
very graciously yielded to you, so please go ahead. And thank
you to Senator Leahy.
PRESENTATION OF BRIAN MORRIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MONTANA, AND SUSAN P. WATTERS, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF MONTANA, BY HON. MAX BAUCUS,
A U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Thank you, Chairman Leahy, for those
comments, and thank you, Senator Grassley, my good friend. We
have worked together so much on the Finance Committee. And
thank you, Senator Blumenthal.
I am pleased to be here today to introduce two outstanding
Montanans to the Committee: Justice Brian Morris and Judge
Susan Watters, to serve as United States District Judges for
the District of Montana.
One of the most important responsibilities I have is my
constitutional role to provide advice and consent on the
President's nominations to the federal bench. Over the course
of my time here, I have had the opportunity to recommend some
of Montana's top legal minds to the federal bench. I approach
each vacancy with the same criteria. I want the best. I do not
care if they are Republicans, Democrats, liberals,
conservatives. I want the best.
I look for individuals with a breadth of legal experience,
ethics above reproach, sharp analytical skills, and respect for
precedent.
In consultation with Montana's legal community, I
recommended Susan Watters and Brian Morris to President Obama.
I am certain that their experience, leadership, and prudence
will serve Montanans well.
Montana Supreme Court Justice Brian Morris has
distinguished himself as one of the brightest legal minds that
has ever come out of Montana. Another important distinction: He
hails from Butte--Butte, Montana, that is. It is a privilege to
introduce him to the Committee today.
Justice Morris is accompanied by his wife, Cherche; two of
their children, Max--I think daughter Mekdi could not make it
today. I would like to offer my congratulations to Justice
Morris and his family. His nomination caps what has already
been a prestigious legal career.
Justice Morris earned a football scholarship to Stanford
University and graduated with a bachelor's degree and master's
degree in economics. In 1991, Justice Morris graduated with
distinction from Stanford Law School. At the law school,
Justice Morris clerked for Judge John Noonan, Jr., of the Ninth
Circuit Court of Appeals. Then he clerked for Chief Justice
Rehnquist of the U.S. Supreme Court. After clerking for the
Court, Justice Morris worked for one year at The Hague on the
U.S.-Iran Claims Tribunal, representing American citizens and
businesses who lost property in Iran after the Islamic
Revolution.
Following his time in The Hague, Brian returned home to
Montana, where he took a job with the Bozeman firm Goetz,
Madden & Dunn, handling both criminal law and commercial
litigation.
Justice Morris then served for three years as Montana's
Solicitor General. In 2004, Justice Morris was elected to the
Montana Supreme Court where he has since served. There he has
demonstrated all the qualities required of a federal court
judge: integrity, fairness, a steady disposition, and superb
analytical skills. And despite his lofty credentials, Justice
Morris is known for his approachability and down-to-earth
nature. After all, he is from Butte.
He has four children and is highly involved with their
sports and schools. In addition, on any given day, you might
find him or one of his law clerks volunteering to read to
students at Smith Elementary School in Helena.
For more than eight years, he has served the people of
Montana on the bench and in the community. As a federal judge,
I have no doubt that he will continue to perform at the highest
possible level.
It is now my privilege to introduce the second nominee from
Montana. In Montana, we are especially proud that in 1916,
Montanans elected the first woman to the U.S. House of
Representatives, Jeannette Rankin, who achieved this remarkable
feat four years before women secured the right to vote. We
elected the first woman to Congress four years before women had
the right to vote.
Today's second nominee, Judge Susan Watters, is another
trail-blazing Montanan, another trail-blazing woman. If she is
confirmed by the Senate, she will become the first woman to
serve as a Federal District Court Judge for the District of
Montana.
Judge Watters' husband, Ernie, is here today. I know that
Ernie, along with their two daughters--who, by the way
surprised our nominee here today by flying into DC just to be
here for the hearing. A big surprise for Susan. She had no idea
her daughters were coming. They are here today to be with Susan
and with Ernie, Susan's husband. I know they are all very proud
of her. I congratulate her entire family on this tremendous
achievement.
Judge Susan Watters was born and raised in Billings,
Montana, and graduated with honors from Eastern Montana College
in 1980. Shortly afterward, her two daughters were born. Judge
Watters raised two young children while attending the
University of Montana Law School, achieving a law degree in
1988.
After law school, she served as deputy county attorney for
Yellowstone County. In 1985, Judge Watters opened her own
practice where she represented clients in State and federal
court. In 1999, Governor Marc Racicot appointed her to sit as a
district court judge for Montana's 13th Judicial District in
Billings. And since her appointment, Judge Watters has been re-
elected three times, most recently with more than 80 percent of
the vote.
During her 14 years on the bench, Judge Watters has
presided over thousands of cases and hundreds that have gone to
trial. She has overseen civil, criminal, probate, juvenile, and
family law cases. Among Judge Watters' most notable
achievements is the establishment of the Yellowstone County
Family Drug Treatment Court in 2001. Because of its
overwhelming success, this court has become a model for other
family drug courts across the Nation.
Judge Watters has built a reputation of being fair, hard-
working, possessing strong analytical skills and an excellent
judicial temperament. She has served the people of Yellowstone
County for more than a decade. I am absolutely confident she
will bring the same high level of professionalism and dignity
to the federal bench.
I appreciate the opportunity to introduce Justice Morris
and Judge Watters to this Committee. Not only are they
exceptionally qualified, their service is critically needed.
The District of Montana holds three full-time Article III
judgeships. Two are now vacant. Currently our Chief Judge, Dana
Christensen, our only sitting active federal judge, is devoting
countless hours traveling from Missoula to Great Falls to help
with the docket. Senior Judge Don Molloy is traveling the 345
miles from Missoula to Billings each month to cover his docket.
I might remind the Committee this is the same distance as from
here to Hartford, Connecticut.
These two vacancies are classified as judicial emergencies
by the Administrative Office of the U.S. Courts. I hope the
Committee will work diligently and expediently to get these two
exemplary nominees to the Senate floor for confirmation.
Senator Blumenthal. Thank you very much, Senator Baucus.
Thank you for being here today and so graciously and eloquently
introducing these two very well-qualified nominees. And we
really appreciate your being here. We know that you have a very
busy schedule with the Finance Committee, and I am going to
call on Senator Grassley to give his opening statement, and
then I will introduce the other nominees. But I hope everyone
understands that Senator Baucus probably will not be able to
stay for the remainder of the hearing, but we do appreciate you
being here. Thank you.
Senator Baucus. Thank you, Mr. Chairman. And I know I am
beating a dead horse here, but these are two terrific people.
[Laughter.]
Senator Baucus. Thank you.
Senator Blumenthal. Thank you. Well, your saying so means a
lot. Thank you.
Senator Baucus. Thank you.
Senator Blumenthal. Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. I welcome all the nominees. Among the
nominations on the agenda today is the nominee for the DC
Circuit, and I will make a statement similar to what I made
when there was another nomination. And you heard some
statistics from Senator Leahy. I want the audience to know that
there is an honest difference of opinion between Senator Leahy
and me on this subject of whether or not we need additional
judges.
I would point out that the main difference is whether or
not you are going to consider pending cases before the DC
Circuit or whether you are going to look at how much work is
actually getting done by the circuit court. And I look at the
filed cases and the terminated cases in my statistics, as
opposed to pending cases.
Also, another point I should make you aware of is that
there was a seat on this court eliminated during President
Bush's administration, and even though I am a Republican, I led
that effort to eliminate that one seat because I did not think
it was needed at that particular time.
I have indicated on a number of occasions that I believe it
is a mistake to move forward with these nominations when there
is so much disagreement about whether these seats are even
needed. Notwithstanding the disagreement over the workload, the
Chairman has indicated that he will move forward with these
nominees, and he is Chairman and he sets the agenda, and I have
to accept that. But I would like to address a little more
detail about why the workload simply does not warrant the
additional judges.
First, I would like to remind my colleagues that in 2006
the Democratic majority now, then in the minority, argued that
the DC Circuit caseload was too light to justify confirming any
additional judges to the bench. Since that time, the caseload
has continued to decrease.
In terms of raw numbers, the DC Circuit has the lowest
number of total appeals filed annually among all the circuit
courts of appeal. In 2005, that number was 1,379, this year
1,193, a decrease of 13 percent. If you look at the number of
appeals filed per authorized judgeship, again, the DC Circuit
is the lowest. In 2012, the DC Circuit had 108 total appeals
filed per authorized judgeship. This is the lowest in the
Nation. By comparison, in 2012 the national average was 344,
nearly three times as high for the other circuits. In 2005, the
total number of appeals filed per authorized judgeship was 115,
and again in 2012, that number had fallen to 108.
And what is noteworthy is that the number decreased even
though Congress transferred one judgeship to the Ninth Circuit
in 2008. Stated differently, the total number of cases filed
has fallen so much since 2005 that the number of filings per
judgeship has decreased even though we have fewer authorized
judgeships today than in 2005.
Perhaps the best numbers to examine are those that measure
the workload per active judge. The caseload has decreased so
much since 2005 that even with two fewer active judges, the
filing levels per active judge are practically the same.
In 2005, with 10 active judges, the court had 138 appeals
per active judge. Today, with only eight active judges, it has
149. This makes the DC Circuit caseload level the lowest in the
Nation and less than half of the national average.
We have recently confirmed judges in the Eighth and Tenth
Circuits. It has been suggested that these circuits have
caseloads lighter than the DC Circuit. As I have said in the
past, that is not accurate. The DC Circuit has fewer cases
filed and fewer cases terminated than either the Eighth or the
Tenth Circuit. Cases filed and cases terminated measure the
amount of appeals coming into the court and being resolved by
the court, respectively. That is how you determine how busy a
court is.
Now, I would like to note that the White House is
attempting to rely on pending cases to try to compare the
Eighth and Tenth Circuits to the DC Circuit. But what the White
House fails to mention is that cases pending measure case
backlog. Cases pending does not measure how many cases are
being added and removed from the docket.
When looking at how many cases are added or files per
active judge, the DC Circuit is the lowest with 149. It is
nowhere near the Eighth Circuit's 280 or the Tenth Circuit's
217.
When looking at the numbers of cases being terminated by
each court, the DC Circuit is once again the lowest at 149.
Again, the Eighth Circuit and Tenth Circuit, 269 and 218,
respectively. So an objective review of the caseload reveals
that the DC Circuit is very low, and it raises serious doubts
regarding whether we need more than eight active judges on the
court.
Now, there is no question in my mind that the statistics
makes clear that the DC Circuit does not need additional
judges, and that is especially true if you use the standards
that the Democrats set when they opposed Peter Keisler's
nomination to the DC Circuit in 2006.
But in addition to the statistics, I think it is extremely
helpful to get input from the judges themselves. By way of
background, let me just say that when I chaired the Judiciary
Subcommittee on the Courts in the 1990s, I conducted a survey
of U.S. courts. Back then I asked judges to provide their
perspective on a variety of issues. The insight that the judges
were able to provide through that survey was invaluable at that
time, and I think using that same method will be valuable this
time.
So based on that experience, I recently sent a letter to
judges currently serving on the DC Circuit. I asked the judges
whether based on their experience the workload of the DC
Circuit warranted additional judges. I also asked that those
who cared to respond do so anonymously so that they could feel
free to speak candidly. The results are not surprising.
The judges themselves confirmed everything that I have been
saying about the workload of the course. As one judge put it,
``I do not believe the current caseload of the DC Circuit or,
for that matter, the anticipated caseload in the near future
merits additional judgeships at this time. If any more judges
were added now, there would not be enough work to go around.''
Another judge wrote, ``The court does not need additional
judges for several reasons. For starters, our docket has been
stable and decreasing, as the public record manifests.
Similarly, as the public record also reflects, each judge's
work product has decreased from 30-some opinions each year in
the 1990s to 20-some and even fewer than 20 opinions each year
since.''
Again, this is not this Senator saying that the caseload is
low. These are judges currently serving. These judges say that
if we confirm any additional judges, ``there would not be
enough work to go around.'' Who is in a better position than
the judges to make an assessment about the court's workload and
the need for additional judges?
I would also remind my colleagues that the court currently
has six senior judges. Combined with the eight active judges,
that is a total of 14 judges serving on the court. According to
one of the judges on the court, the senior judges ``will more
than likely serve for another decade based upon their
respective ages and health.'' Likewise, another judge noted
that the DC Circuit has ``an extraordinary number of sitting
senior judges, six, who are actually younger than the average
age of the U.S. senior judges.'' Based on this, it is clear
that the senior judges on the court are contributing a
significant amount of work and will continue to do so for the
foreseeable future. They serve because they want to, not
because they have to. This is all the more reason why the DC
Circuit is the most--has the lowest agenda.
I will have a lot more to say on this subject as we move
forward with this nomination, and I yield back. Thank you.
Senator Blumenthal. Thank you, Senator Grassley, for those
remarks. I hope that we can move on with the business before
us, which is the nominations that we are considering. But I
just want to say that I respectfully disagree, Senator. I think
that the statistics and numbers that you cited are certainly
not the sole or even the best measure of the workload of a
court the size and complexity and challenge of cases which are
extraordinarily high before the DC Circuit are equally if not
more important, and I am going to enter into the record, if
there is no objection, statements from present and former
members of the court who have commented for the record, not
anonymously, their views as to the workload of the court, and
that includes former Chief Judge Harry Edwards, Judge Lawrence
Silberman, former Chief Judge Patricia Wald, former Chief Judge
Douglas Ginsburg, and Chief Justice John Roberts of the U.S.
Supreme Court, all indicating very strongly and unequivocally
that the workload of this court is certainly a tremendous
challenge and growing rather than diminishing.
Having said that, let me introduce now two of my colleagues
who very generously have agreed to be here today to introduce
their nominees, nominees from their States, and I would begin
with Senator Shaheen.
PRESENTATION OF LANDYA B. McCAFFERTY, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW HAMPSHIRE, BY HON. JEANNE
SHAHEEN, A U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Shaheen. Thank you very much, Mr. Chairman, Ranking
Member Grassley, Senator Hirono. I am sorry to be a little
late, but delighted to be here this morning to introduce Landya
McCafferty, who has been nominated by the President to be the
Federal District Court Judge for the District of New Hampshire.
I want to note at the beginning that Landya, if confirmed,
will be the first woman to serve on the federal bench in New
Hampshire. I have to point that out. But really it is not
Landya's gender that matters. It is her professional experience
and her personal qualities that really make her stand out.
When word got out in New Hampshire that there would be a
vacancy on our federal bench, I heard from lawyers across the
State. They recommended Landya McCafferty for this judgeship.
And I did not know Landya at the time, but I was very impressed
by what I was hearing from others who had worked with her about
her skill and experience. I wanted to meet her and I was not
disappointed. I was struck by Landya's intellect, by her
thoughtfulness, and by her level temperament. She gave
straightforward and well-reasoned answers to all of my
questions.
In addition to her current position as the U.S. magistrate
judge for the District of New Hampshire, her federal court
experience includes clerking for two district court judges at
the First Circuit Court of Appeals. Her other professional
experience includes prosecuting professional misconduct cases
as the disciplinary counsel for the New Hampshire Supreme Court
Attorney Discipline Office; serving as an appellate and trial
attorney in a highly regarded New Hampshire public defender
program's amendment working in private practice as a civil
litigator.
Landya is also an innovator. As a magistrate judge, she has
become a nationally recognized expert and teacher on how to use
technology, including iPads, to achieve a more efficient and
paperless work flow in the federal court system.
Mr. Chairman, I have no doubt that Landya McCafferty will
be an excellent federal district court judge. I urge her
confirmation and her expeditious consideration to that
appointment.
Thank you very much.
Senator Blumenthal. Thank you, Senator Shaheen. Thank you
for being here today.
I will now introduce my colleague from Connecticut, Senator
Murphy. He and I have worked very closely together on the
nomination, and the introduction that he is going to make is
very welcome this morning. Senator Murphy, thank you.
PRESENTATION OF JEFFREY ALKER MEYER, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF CONNECTICUT, BY HON. CHRISTOPHER
MURPHY, A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Murphy. Thank you very much, Senator Blumenthal.
Thank you, Senator Grassley. Good to see you, Senator Hirono. I
appreciate, Senator Blumenthal, your generosity in allowing me
to be here before a Committee you are chairing to introduce
Jeffrey Meyer, who will be appearing before you as the
President's nominee to be a United States district judge in
Connecticut. We both have had the pleasure of knowing and
getting to know Mr. Meyer, and the reason why we recommended
him for this post is because there are few people, I think,
that this panel will see that have the unique blend of judicial
experience, academic experience, and practical experience that
Mr. Meyer brings to this position.
He received both his undergraduate degree and his law
degree from Yale in New Haven. He clerked at the Supreme Court
for Harry Blackmun and then for Judge James Oakes. He currently
is teaching the Supreme Court Advocacy Clinic at Yale Law
School as a visiting professor. He also served as an Assistant
United States Attorney in Connecticut for almost 10 years, and
before that was the senior counsel of the independent inquiry
committee into the United Nations Oil for Food Program.
Aside from his full-time work, Mr. Meyer has been a member
of the Connecticut Judicial Ethics Committee since 2008, a
member of the Advisory Committee for the selection of
Connecticut's Federal Public Defender. He is also a member of
the U.S. Attorney's Police and Urban Youth Task Force.
This is a pretty impressive mixture of both experience as
an attorney, experience as an academic working specifically on
issues related to the federal bar, and really robust
involvement in the community that he lives in. We were both
very impressed when we got the chance to meet with him with the
degree of intellectual thought that he has given to trying to
make the federal court system work better for people who
interact with it, both plaintiffs, defendants, and lawyers. I
think that kind of intellectual thought that he has devoted his
career to will lend great weight to the federal bar.
I would just note very quickly that though he will, I am
sure, introduce his family who is here with him today, I would
give special note to his father, State Senator Ed Meyer, who I
served with in the Connecticut General Assembly. Senator Meyer
really is one of the pillars of conscience in the State Senate
in Connecticut, and he has clearly passed down that trait to
his son.
I am very, very pleased to be here to introduce him today,
and I thank you for your generosity in allowing me to do it.
Senator Blumenthal. Thank you, Senator Murphy.
I would just round out that introduction by saying I am not
going to hold it against Jeff Meyer either that he went to Yale
or that he was a law clerk to Justice Blackmun or that he is Ed
Meyer's son, with whom I served as well, and I appreciate his
being here today. And I might just add that Mr. Meyer not only
served as a prosecutor in Connecticut but also served for five
years as appeals chief. He led a very significant part of the
United States Attorney's Office where I also served, and I know
from his reputation there as well as his reputation in the
private bar that he was not only aggressive and zealous, but
also fair and compassionate in the way that he conducted his
prosecutorial duties. I think those qualities are profoundly
significant to the service of any judge, and I know that he
will bring them to the bench when he is confirmed, as I expect
he will be.
And I might just add for the benefit of everyone who is
here today that this Committee really regards these nominations
processes and this hearing as a very, very significant step in
an exacting and demanding process. As I have said before--and I
have been practicing as a lawyer in the federal courts for some
decades--the district court judge is often the voice and face
of justice for countless citizens who bring their grievances or
complaints or claims of injustice to our federal judges. And
although they can appeal to the circuit court, for many the
district court is the place where they seek and receive
justice.
And so these appointments of district court judges, in my
view, are some of the most significant responsibilities we have
as Senators, and I want to thank all of the nominees for their
willingness to serve. It is a job that requires extraordinarily
hard work, diligence, scholarship, and sensitivity, and
personal qualities that I think they bring to this role that
are very profoundly important. So I thank our two colleagues
for being here today, and thank you for taking time from your
very, very busy schedules. I know both of you are involved in
Committee hearings and meetings, and I hope that our nominees
and their families and friends and supporters will excuse them
today, and certainly we thank you for being here. Thank you,
Senator Shaheen, and thank you, Senator Murphy.
I want to introduce the next nominee and ask her to come
forward. Cornelia T.L. Pillard has been nominated by the
President of the United States to serve on the DC Circuit Court
of Appeals, and I must say that I am really very, very honored
to introduce her to the Committee today. She is a person of
extraordinary professional excellence and has a record of
distinguished public service and devotion to the public
interest that I think is unmatched, really, among the nominees
that this Committee has considered in this role.
The American Bar Association has given Ms. Pillard its
highest rating for her qualifications, and anybody who looks at
her nomination and her resume knows exactly why. She has served
in many of the most important jobs in the law, arguing on
behalf of the U.S. Government in the Solicitor General's
Office, serving in the Department of Justice's Office of Legal
Counsel, and teaching at one of the Nation's leading law
schools.
Even before she was nominated for this position on the DC
Circuit, she was a figure of profoundly significant stature in
the legal profession. Her argument in the landmark case of
United States v. Virginia, for example, produced a 7-1 victory
that still serves as a milestone in equal protection
jurisprudence. Her advocacy in the Hibbs case, which she argued
alongside the Bush administration official who led that
administration's support for her argument, also led to another
enduring Supreme Court opinion, this one by Chief Justice
Rehnquist, upholding congressional power to enact the Family
and Medical Leave Act.
Just as important as her abilities is her commitment to
public service. In every job that she has had, Ms. Pillard has
stood up for the public interest, for equal protection, for the
rights of minorities, and people who sought justice. And in the
process, she has shown she understands a very important fact
about the law: No one has a monopoly on truth. A lawyer can
serve the public by upholding the rule of law in a variety of
roles, serving a variety of clients. She has represented the
U.S. government, and she has also represented litigants seeking
to protect their rights against the government when it intruded
or interfered unfairly with those rights.
She has served on the Board of the American Arbitration
Association where she worked with the corporate general counsel
to make our legal system more efficient and effective. She has
experience with the reflection made possible by an academic
position where a lawyer really can identify different trends in
legal thinking and work to teach students the basic principles
that make up our system of justice. And she now serves as
faculty director of Georgetown University's Supreme Court
Institute.
Attorneys who have watched and seen Ms. Pillard work also
agree that she has the talent and temperament to make an
exceptional DC Circuit judge.
This Committee has received letters of support for Ms.
Pillard from a broad cross-section of the legal profession,
including 21 former Office of Legal Counsel attorneys, 25
federal prosecutors and law enforcement officials, 30 retired
members of the armed forces, former Director of the FBI William
Sessions, and former Bush administration Assistant Attorney
General Viet Dinh.
I ask unanimous consent that these letters be submitted for
the record.
[The letters appear as submissions for the record.]
Senator Blumenthal. And I would also ask consent to submit
an op-ed printed in the record today by somebody who directly
benefited from Ms. Pillard's work, Elizabeth Dobbins, who is, I
believe, with us today. She is a retired military officer and
graduate of the Virginia Military Institute, and she was able
to attend VMI and advance her goal of serving our country in
the military, thanks to the work that Ms. Pillard has done and
did in that case. And as I mentioned, I think she is with us
today, and I want to thank her for joining us.
Ms. Pillard, I welcome you here today. As I mentioned, I am
honored to introduce you to the Committee, and I want to thank
you in advance for your willingness to serve. And my first duty
is to ask you to please stand and be sworn. If you would please
raise your right hand. Do you affirm that the testimony you are
about to give before this Committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Ms. Pillard. I do.
Senator Blumenthal. Thank you. You are free to proceed with
an opening statement if you would like and introduce your
family.
STATEMENT OF CORNELIA T.L. PILLARD, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Ms. Pillard. Thank you, Senator Blumenthal. I would like to
thank Chairman Leahy and Ranking Member Grassley for scheduling
this hearing and Senator Blumenthal for chairing and for his
very kind and generous introduction. And I would like to thank
all the Senators on the Committee for taking their time out of
their very busy schedules to be here--Senators Hirono, Franken,
and Whitehouse--and I know others are in and out according to
their busy Committee schedules.
I would also like to thank President Obama for this
nomination. The system of laws and courts in our country is a
precious heritage, and I take my acceptance of this nomination
as my pledge to safeguard our great legal traditions.
I also want to introduce several people who are here with
us today, my family: my husband, David; my son, Aidan, who is
16. My daughter, Sara, 14, cannot be with us today because she
is at summer camp in the Adirondacks, a camp with a long family
tradition. Actually, my parents, who are here, initially met
each other as counselors at the camp where my daughter is now
attending. They do not have television or electronics there,
but they told her that they might let her watch the Webcast, so
perhaps she is watching us today.
Additional members of my family: my mother, Cornelia
Pillard, Cornelia Tierney, is here, and my father, Dr. Richard
Pillard. My stepsister, Minou Elisa Tierney, is here from
California as representative of my four siblings.
I would also like to recognize two special guests who are
here with us today: Retired Brigadier General Evelyn Foote, who
goes by ``Pat'' Foote, who has spent 30 years in the United
States Army and has broken untold barriers for women. She has
been a leader in working toward women's equal participation in
the military and was an early and consistent supporter of
VMI's, the Virginia Military Institute, opening to women, and
she is here with us today. We are very honored to have her
here.
And seated directly next to her is Elizabeth Dobbins.
Elizabeth, who Senator Blumenthal mentioned, is studying to
take the bar next week. She is a graduate of the University of
Virginia Law School, and she went and did her undergraduate at
VMI. So, yes, she is one of those proud VMI women, and so she
is also here with us today, and we are very proud to have her.
Finally, I would like to recognize the Georgetown
University Law Center dean, Dean William Treanor, and all the
colleagues, friends, and supporters, including former students,
who are here with us today. I am very pleased to have you here
on this very, very important day.
Thank you so much.
[The biographical information of Ms. Pillard follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Blumenthal. Thank you very much. I am going to
begin with some questions and then turn to other Members of the
Committee.
Ms. Pillard, I understand that you were on the ABA
Committee that evaluated Samuel Alito when he was nominated to
the Supreme Court. In fact, you chaired the ABA Reading
Committee that produced the report evaluating then-Judge Alito
when it gave Judge Alito its highest rating.
I wonder if you could describe the qualities that make a
good appellate court judge, qualities that you evaluated in
giving Judge Alito that recommendation.
Ms. Pillard. Thank you, Senator Blumenthal. I was asked in
2005 and 2006 to chair one of the ABA Nominations Committee's
Reading Committees, and at that time, one of the nominations
that came forward was the nomination of then-Judge Alito to sit
as a Justice on the Supreme Court. And we reviewed every single
writing that could be found that had been authored by Justice
Alito, and that included many judicial opinions. It also
included speeches and other writings that were written in other
capacities. And we thoroughly read all of those writings, and
what we were looking for there was a faithful ability to read
the law and apply it rigorously to the facts of the case when
we were looking at the judicial opinions.
We looked at the other writings with a little bit of a
different approach because they were written in a different
role. But we are looking for someone who we think, whatever his
views, personal views, when he approaches the law, he
approaches it fairly, rigorously, with an open mind, and has,
therefore, the qualities of impartiality and of fairness that
we are looking for in a federal judge. And we made our report
and the ABA found it, I think, readily apparent that now-
Justice Alito had the qualities to equip him to be a Justice on
the U.S. Supreme Court.
Senator Blumenthal. And you have been an advocate, a very
zealous and passionate and successful advocate sometimes, of
controversial causes and cases. Looking to those qualities of
impartiality and fairness, do you think you would be able to be
impartial and fair? I know you will say yes. How will you be
able to, in effect, move from the advocacy demeanor and role to
the appellate judge role, which is obviously one of judging,
not of advocacy?
Ms. Pillard. Thank you, Senator Blumenthal. I have had the
experience, as I think most nominees have, of being an
advocate, and what we undertake in agreeing to be nominated to
be a judge is to set aside the kind of partisanship and the
loyalty to client that we may have, that we were duty bound to
have as an arguing advocate, and put aside any bias and take on
as our trust and as the goal of what we are doing the neutral
and evenhanded application of the precedents of the U.S.
Supreme Court, the precedents of the DC Circuit, and apply
those to the case at hand. And the judge has an especially
heightened responsibility, in my view, to read the read the
record in a case meticulously to make sure that her decisions
do not in any way exceed the bounds of the issues presented
before her.
Article III judges are judges of limited power, and one of
the highest responsibilities of a judge is to be so familiar
with the record that they are deciding only the issue presented
before them in the most evenhanded way possible under the
precedents and the text of the law and statutes.
Senator Blumenthal. Thank you.
Senator Grassley.
Senator Grassley. Thank you very much.
I know that you believe that there is a right of privacy in
the U.S. Constitution. From what and where in that document
does it derive? And what is your understanding in general terms
of the contour of that right?
Ms. Pillard. Thank you, Senator Grassley. My view, any
personal view that I might have, would be irrelevant to my
serving as a judge. The views that I would take as my guide in
answering any such question as the question you pose are the
precedents of the U.S. Supreme Court. And the U.S. Supreme
Court in a long line of cases has found a right of privacy
protecting reproductive choice in the liberty aspect of due
process. And as those precedents have evolved, those are the
precedents that I would apply, and those are the precedents
that I would be bound to, precedents of the U.S. Supreme Court
and any precedents of the District of Columbia Circuit.
Senator Grassley. A little bit along the same line, I will
quote Justice Douglas in Griswold: Although the Bill of Rights
did not explicitly mention the right to privacy, it could be
found, as you know, as he said, in the ``penumbras'' and
``emanations'' of the Constitution. Do you agree with Justice
Douglas that there are certain rights that are not explicitly
stated in our Constitution that can be found reading between
the lines, as he--``reading between the lines''?
Ms. Pillard. I do not think that is a methodology that I
would apply in my decisions as a judge. Thankfully, the Court
has done much to elaborate since then, and we are not looking
at enumerations or penumbras. I do not see any role for that
kind of reasoning under the United States Constitution. I would
apply the precedents of the U.S. Supreme Court. I would look to
the text and the structure of the Constitution in interpreting
the Constitution.
Senator Grassley. Thank you.
You have argued that, ``Equal protection is at the heart of
the abortion matter.'' Could you explain where in the
Constitution or Supreme Court precedent you find support for
that argument that abortion rights are a matter of equal
rights? So let me continue with an additional question along
the same lines. You have asserted that reproductive rights
should be doubly constitutionally protected by overlapping
liberty and equality guarantees. So then what constitutional
authority supports this proposition or the argument that
abortion rights are a matter of equal protection?
Ms. Pillard. Thank you, Senator Grassley. I do not believe
that the Supreme Court has held that the abortion right is
protected under equal protection. It is based in the liberty
aspect of the Due Process Clause.
The article to which you refer was an article not seeking
to re-theorize in any way the abortion right, but was looking
at other--the article was titled, ``Our Other Reproductive
Choices,'' and it was putting aside the debates about abortion
and looking at other areas of law where well-established equal
protection principles of the equality between women and men
might, in fact, be used to make abortion less frequent. And the
reference to equality and abortion is a more general reference
to the policy or the outcomes of equality that the Supreme
Court refers to in the joint opinion in Casey where the Court
in that Casey opinion says women's ability to participate
equally in the economic and social life of the Nation has been
facilitated by their ability to exercise reproductive choice.
So it is not intended as any kind of doctrinal re-theorization
of the abortion right.
Senator Grassley. Okay. A little bit along the same line
but in a more specific area, you have criticized laws that
grant conscience rights to pharmacists and health care
providers ``to refuse to facilitate abortions or even to fill
prescriptions for contraceptives if they are personally opposed
to such practices.''
I think that this is quite dismissive of religious beliefs
that these health care providers might have, so I would give
you an opportunity now to explain your understanding of freedom
of religion as enumerated in the First Amendment in the context
of that question and your statement.
Ms. Pillard. That is not my view, in fact. I believe that I
have not written on the question of conscience rights, and, in
fact, the question is a question that is very much before the
lower courts. It is a question that might come before me. And I
would hesitate to speak in detail how a judge should approach
those issues except to generally note that there are rights on
both sides of those questions. There are rights of individuals
to have access to reproductive care, but, of course, there is
also well-established recognition in our Constitution and laws
of the free exercise rights of individuals and potentially also
of organizations.
So I think any judge approaching those issues would have to
take into account religious freedom as well as the reproductive
rights of an individual seeking to exercise those.
Senator Grassley. Okay. While the case Hosanna-Tabor
Evangelical Lutheran Church v. EEOC was pending before the
Supreme Court, you made a statement at a press briefing that
the Lutheran Church's position was a ``substantial threat to
the American rule of law.'' Given that the Supreme Court ruled
unanimously for the church, I would like to have you explain
how the ministerial exception to employment decisions is a
substantial threat to the rule of law? And do you believe that
the ministerial exception is unconstitutional?
Ms. Pillard. Thank you, Senator Grassley. That was a case
in which the Lutheran Church Missouri Synod was arguing that
they were exempt from civil rights laws because it was in
violation of their religious tenets to have somebody who
claimed age disability discrimination raise the claim. And the
tension in that case is between the free exercise rights on the
one hand and the rights to have general application of the
government system of rule of law on the other. And I have to
admit, Senator Grassley, that--and this would not be the only
time--I really called it wrong on that case. I did not predict
that the Court would rule as it did. And needless to say, I
would be bound by the Court's decision in that case and in
every other case of the U.S. Supreme Court. And I do have
confidence that I would have no trouble applying that precedent
to any case that would come before me.
Senator Grassley. Thank you.
Senator Blumenthal. Thank you, Senator Grassley.
I am going to call on Senator Whitehouse now to ask
questions and to take the gavel briefly. I have a Veterans'
Affairs mark-up, a Committee meeting that I am going to have to
attend briefly. So thank you very much, Senator Whitehouse, for
taking the gavel.
Senator Whitehouse [presiding]. It is my pleasure to stand
in for Senator Blumenthal briefly at the hearing and to reflect
on the fact that the complementary things that Senator
Blumenthal has had to say about this nominee come from a pretty
remarkable position of accomplishment as one of the senior
Attorneys General of the country. And I think he has spent more
time before the U.S. Supreme Court than anybody else in the
Senate, so he knows whereof he speaks.
Welcome, Professor Pillard.
Ms. Pillard. Thank you.
Senator Whitehouse. One of the issues that courts are faced
with fairly frequently involves the role of the jury. And we
all as lawyers understand that the jury has a very important
role in the administration of justice. It has a vital fact-
finding role. And my question to you is actually addressed to
the role of the jury beyond its pure judicial fact-finding
role.
If you begin with Blackstone, who is a fairly renowned
authority on legal matters, and if you go through the writings
and the words and the actions of our Founders when this great
Republic was created, and if you continue on to the, I think,
viewed as relatively authoritative, writings of viewers of our
country like de Tocqueville, over and over again they make the
same point, which is that the jury is more than just a judicial
entity, is more than just a fact-finding adjunct to the court.
It has a governmental role, and it is described as a means for
defense against tyranny. It is in the provision of de
Tocqueville's ``Democracy in America.'' The discussion is in
the chapter that says, ``On what restricts the tyranny of the
majority.'' It has been described as one of the means of the
sovereignty of the people and, in effect, as a significant part
of the architecture of our distinctive American system of
government.
Could you comment a little bit on your view on the role of
the American jury both as a pure judicial institution and in
the broader context of its role within the American system of
government given its history?
Ms. Pillard. Thank you, Senator Whitehouse. The jury is
indeed one of the cornerstones of justice in our constitutional
democracy, and it is--I know that, among others, Justice Scalia
on the U.S. Supreme Court has really insisted, looking at the
original document and the history of our Constitution, on the
central importance of the jury right.
Senator Whitehouse. ``I am a big fan of the jury,'' he said
in a hearing before this Committee. Juries across the country
were gratified, I am sure.
[Laughter.]
Ms. Pillard. Indeed. It is quite a service to shoulder. I
have been there myself.
And I think one of the really important functions of the
jury is a function that anyone seeking to take the bench also
be guided by, and that is that the jury really helps the public
to accept the legitimacy of the decisions that are handed down.
When common people from all walks of life are convened
together, it is harder for the skeptical public or for the
public that feels like they may be outsiders to feel that
justice is designed by elites or by insiders and imposed upon
them from on high.
So the jury has a very important function in increasing the
acceptability of the system of justice for the people. And that
is a lesson that I believe that judges also must take very
seriously.
One of the subjects that is very dear to me--I teach Civil
Procedure, we teach about the jury. A lot of my writing has
been about fair process. And many of my students come into law
school, and Civil Procedure is not high on the list of things
they are inspired to study. They are not thinking, ``Whoo, I
have come to law school for Civil Procedure.'' But I try to
impress upon them the importance of fair procedure and the
central and solving role that procedure can play.
There are winners and there are losers in every case before
the court, and it is my view that when procedure is
scrupulously fair, that when the bench is made up of people who
have checked their biases, if any, at the door, that even the
losers in the system remain connected to it. They feel that
they have had a fair shake, and they feel that the system of
justice is theirs.
I think the jury helps to create that belief among the
public, and I think that when judges provide fair process,
listen carefully to the parties before them and approach them
with an open mind, that the bench also can communicate that
they are guardians of this precious public trust and that they
are fair to all comers.
Senator Whitehouse. Thank you. I think we often forget that
in this popular government, one of the ways in which people
have the most direct voice is sitting in the jury box and
making the official decisions that will be made in conflicts
that are brought before them.
It has also been described as having a very significant
educational role, a school for citizens and their rights and
their responsibilities of governance. And it has been described
as an important check on the wealthy and on the powerful, which
I think is embodied in the principle that to tamper with the
jury is actually a crime; whereas, wealthy and powerful
interests spend an enormous amount of effort trying to tamper
with executive and legislative branch officials to make sure
that they get their way. And there comes a point when they can
get too much their way. And against that tide of power and
wealth stand the hard square corners of the jury box.
I hope that as you go forward, and presuming that you will
be nominated and confirmed, that you will always bear in mind
that there is more to the jury than just its fact-finding
function. It is part of how we, the people, govern ourselves.
And next, I think, we have Senator Lee.
Senator Lee. Thank you, Mr. Chairman. I look forward to
asking a few questions of Ms. Pillard, but first I wanted to
just briefly speak to this administration's push to fill
additional seats on the DC Circuit at a time when those
vacancies do not need to be filled.
No one who is familiar with the DC Circuit's current
caseload can honestly say that the court is overworked or that
it is in need of an additional judge, let alone two or three
additional judges, as the administration has been suggesting.
While other federal circuit courts struggle to keep up with
their ever-rising caseloads, in each of the last several years,
the DC Circuit has canceled regularly scheduled argument dates
because of a dearth of pending cases. And so especially at a
time when other circuit court vacancies need to be filled and
the administration has failed to put forward judicial nominees
for seats that are considered judicial emergencies, it raises
significant questions for this administration to focus so
heavily on a court that does not need additional judges.
The administration appears to be pushing to confirm
additional unneeded judges to the DC Circuit because of that
court's important role in reviewing Executive actions. The
court's decisions, including its recent invalidation of the
President's unconstitutional recess appointments, made at a
time when the Senate by its own rules was not in recess, often
have very significant political implications. With the
administration's controversial Executive agenda, the President
appears to have targeted the DC Circuit in hopes that he can
pack the court and stack the DC to his advantage.
But that said, I would like to ask you a few questions, Ms.
Pillard. Why don't we start off with a simple question. Tell me
who your judicial role model is, if you had to identify a
jurist, let us say somebody who served on the Supreme Court in
the past. You can pick anyone other than John Marshall.
Everybody says John Marshall. That does not tell us much. Why
don't we stick with a Justice who has served in the last 50
years or so?
Ms. Pillard. If I could go a little further back than that,
I would like to, because the one that I would like to mention
would be Justice Robert Jackson.
Senator Lee. Okay. Tell us why you like Justice Jackson.
Ms. Pillard. Justice Robert Jackson was an astounding
jurist. Here was a man who I do not believe went to college and
maybe had one year of law school training and was one of the
sort of leading lights of the Supreme Court. He was Solicitor
General and Attorney General before he was nominated to the
bench. And he also had the experience of being the chief
prosecutor of the Nazi war criminals at Nuremberg and, I think,
understood from his varied experience how the rule of law can
be a bulwark against tyranny. And his opinions show his
tremendous patriotism, his tremendous love of the Constitution
and laws of our country. And he handed down some of the
constitutional opinions that still guide us, that we still
teach in constitutional law today. A surprising number of the
opinions that are well known to law students are opinions of
Justice Jackson. So I have a great admiration for him.
Senator Lee. Great. You are thinking about his concurring
opinion in Youngstown?
Ms. Pillard. His Youngstown opinion is--you know I worked
in the Office of Legal Counsel and assessing the powers and
limits of the government, and his Youngstown opinion talking
about the complementary powers of Congress and the Executive
is, of course, a much-cited opinion.
Senator Lee. I have always been fascinated by that opinion.
He had a clerk that year named William Rehnquist, who later
made that concurring opinion the majority analysis in Dames &
Moore v. Regan many years later.
In an article that Senator Grassley talked to you about a
few minutes ago, you posited an equal protection right to
abortion and contraception, and in that article you wrote,
among the other things that Senator Grassley talked to you
about, that ``Our law . . . needs to be restyled so that
mothers are not routinely `mommy tracked.' ''
In what ways do you think that our laws need to be restyled
and specifically in order to make sure that mothers are not
routinely ``mommy tracked''? And what role does the judiciary
play in doing that?
Ms. Pillard. That article was not seeking to restyle the
law in any way, but actually--not the constitutional law. It
was an article directed at policymakers and advocates, so
asking for the law to be restyled was not at all a direction to
judges but a direction to people who would be advocating for
policies, whether they be corporate policies----
Senator Lee. Legislators.
Ms. Pillard. Or legislative policies that might help
families who are contemplating having children be more
optimistic about their ability both to raise their children in
the ways that they believe are best and to work enough hours to
make a living, so----
Senator Lee. Okay. So you were talking about legislative
policy there. You were not talking about judging.
You authored an amicus brief--I think it was about 20 years
ago--in a case before the Supreme Court called Bray v.
Alexandria Women's Health Clinic. I believe your client was the
NAACP. You were representing the NAACP as amicus curiae. And
you argued in that brief that pro-life protesters were guilty
of conspiracy in violation of 42 U.S.C. Section 1985.
Now, that, of course, was a law that was originally passed
to criminalize the activities of the Ku Klux Klan and their
efforts at depriving African American citizens of their civil
rights.
In the brief, you called the pro-life protesters that were
at issue in that case ``militant,'' and you wrote that, like
the conspirators at whom Section 1983 was originally aimed--
meaning the Klan, of course--the defendants in this case, these
pro-life protesters, ``seek forcibly to revoke constitutional
rights that they have been unable to repeal through legal and
political processes.''
Do you believe--based on what I am reading here, it caused
me to wonder whether you believe that pro-life protesters that
were at issue in that case are fairly analogous to Ku Klux Klan
members who lynched African Americans simply because of their
race, who bombed churches and in the process killed innocent
children, who brutally murdered people in attempting to
exercise their right to vote? Is this a fair comparison?
Ms. Pillard. Not at all. Not at all, Senator Lee. The
statute that was on the books was, as you mentioned, Section
1985(3), which was written during the Reconstruction Era as a
way to help ensure that the newly freed slaves would enjoy
their equal rights.
Senator Lee. I understand that, but I am not talking about
the law. I am talking about your comparison. This is your
comparison, your invocation of the Ku Klux Klan/pro-life
protester comparison.
Ms. Pillard. And in using that law, we were arguing that
the provisions of the law might be deployed in current-day
circumstances, and the contribution of our brief was talking
about when and if protesters interfere with law enforcement. We
wrote a brief focusing on a hindering of law enforcement
argument. That was the focus of our brief. And the Court
decided not to reach that issue. They said the party had not
raised it. And in the following year, the Congress enacted the
Freedom of Access to Clinic Entrances Act. And I think that it
really recognizes the point you make, Senator Lee, which is
that that old statute, which was the only thing on the books on
which we could base the theory at the time, was not a good fit
for the problem at hand. And so Congress, in the wake of that
case, enacted the Freedom of Access to Clinic Entrances Act in
order to give more modern and more fitting tools that did not
have, as you mentioned, the disparaging connotations of using
that old statute for the current-day problem of allowing law
enforcement officers to do their job.
Senator Lee. Okay. My time has expired, and so we will have
to move on. But I want to make clear I am not questioning
anyone's choice to invoke that statute. I am questioning your
choice in that brief to make that comparison, which I think was
unfair.
Thank you.
Senator Whitehouse. Let me, before I call on Senator
Klobuchar, exercise the prerogative of the Chair to respond to
Senator Lee's assertion that no one can honestly say that
filling these seats is not necessary or advisable. I do not
recall the exact word he used. I actually can say that and feel
that I am being honest in saying so given that the lowest
number of appeals per active judge is actually the Eighth
Circuit, the lowest number of appeals per authorized judge is
the Tenth Circuit. And it is my belief that the nature of the
appeals that the DC Circuit tends to hear, particularly the
agency appeals, is more complex than the average case that, for
instance, the First Circuit used to hear when I was arguing
before them regularly as Attorney General and United States
Attorney.
Senator Lee. May I respond briefly to that, Mr. Chairman?
Senator Whitehouse. You have already gone over your time.
Senator Lee. If you would give me 12 seconds.
Senator Whitehouse. Got it.
Senator Lee. Under the same analysis used by the Democrats
in the Senate who blocked Peter Keisler's confirmation, the DC
Circuit's caseload is still as low as it was back then. The
number of cases per panel is still as low or lower than it was
then.
Thank you.
Senator Whitehouse. Senator Klobuchar.
Senator Klobuchar. All right, thank you. I am focused on
you, Ms. Pillard, and I welcome you to this hearing today.
As we have been discussing today, the Circuit Court for the
District of Columbia in many ways is the second-highest court
in the country. As Chief Justice John Roberts once said,
``Whatever combination of letters you can put together, it is
likely that jurisdiction to review that agency's decision is
vested in the DC Circuit.''
Because of the DC Circuit's crucial role in the development
of this country's jurisprudence, it is essential that the court
operate with its full complement of judges to avoid congestion
on the docket, delay of justice, and uncertainty for agencies
and the entities under its jurisdiction.
You are one of the most accomplished Supreme Court
advocates in the country. You have argued nine cases and
briefed 25 cases before the high court. You have spent over a
decade teaching and mentoring aspiring young lawyers and
serving as faculty director to Georgetown Law School Supreme
Court Institute. And I have no doubt you would make an
excellent addition to the DC Circuit.
Could you talk about the circuit, and can you talk about
the unique role of this court and the circuit court and what in
your background makes you specifically qualified to serve on
that court?
Ms. Pillard. Thank you, Senator Klobuchar. The DC Circuit
is indeed an important court, and one of the characteristics of
the docket of the Supreme Court is that it has a high caseload
on issues about the scope and limits of governmental power. And
these are the kinds of issues that I worked on within the
executive branch at the Office of Legal Counsel where the daily
fare is advising agencies' and entities' officials within the
government about the scope and limits of their power. And
certainly in the Supreme Court Institute at Georgetown, I have
also had exposure to a wide range of the kinds of issues that
come before the DC Circuit.
The Supreme Court Institute is a very special enterprise
that brings together lawyers from across the spectrum, lawyers
with Supreme Court experience, and helps on a voluntary basis
to prepare lawyers to argue before the Supreme Court without
regard to issue or position.
And this past term that just ended, we helped to prepare
one or more of the lawyers in every single case that the U.S.
Supreme Court heard. I personally have been involved in helping
to prepare lawyers across the spectrum. I have prepared former
Republican Solicitors General for their arguments. I have
helped to prepare State Attorneys General to defend their
criminal convictions. I have helped to prepare lawyers for
major multinational corporations to defend arbitration awards,
to defend the court and the nonpartisan service.
Our commitment at the Supreme Court Institute is when
lawyers make their best arguments, the Court can make its best
decisions. And I think my engagement with a wide range of
issues in the Supreme Court Institute, my personal involvement
in helping to prepare lawyers, is always part of my background
to help me prepare for the difficult and varied caseload of the
DC Circuit.
Senator Klobuchar. And also the different and varied
ideology of some of the judges that serve on the court. I would
think that that is going to be very important to be able to
work with people with different views.
Could I ask one question about one of your cases? During
your time in the Solicitor General's office, you successfully
argued a number of important cases on behalf of the United
States. One case was Ornelas v. United States in which the
Court, in an opinion by Chief Justice Rehnquist, agreed with
the government's position that reasonable suspicion and
probable cause required independent review in appellate courts
in order to clarify precedent and afford law enforcement clear
guidance as to when searches are appropriate.
As someone who was in law enforcement for a number of
years, what benefit do you think clear rules and guidance have
for law enforcement officials?
Ms. Pillard. The difficulty for front-line law enforcement
officials is that they have to make quick decisions in a varied
range of circumstances, often at personal peril and peril to
the safety and the property of others. And one of the problems
with a standard that does not involve appellate de novo review
is that the body of decisions that create the examples, the
more precise fact-based guidance does not develop as clearly.
And so in consultation with the Criminal Division, the
Government's position in that case was that it was going to be
best and most helpful to law enforcement if there were
definitive appellate guidelines on the legality of their
actions in a wide range of settings, and that that would very
much help them going forward.
Senator Klobuchar [presiding]. All right. Thank you very
much.
Senator Cruz.
Senator Cruz. Thank you, Madam Chairwoman. Professor
Pillard, thank you for being here. Thank you for your
testimony.
I want to begin by underscoring the point that Senator Lee
made a minute ago that I have real concerns about the nominees
this administration is putting forward to the DC Circuit. The
DC Circuit nominations to that court in partner have been
politicized for a long time. The Democrats in the Senate
repeatedly stopped qualified, excellent nominees to the court,
including Peter Keisler, including, I think most indefensibly,
Miguel Estrada, where a Democratic staffer put in a memo that
the reason to stop Miguel Estrada, one of the top Supreme Court
advocates in the country, was ``because he is Latino.'' And for
that to be put in writing, to explicitly say we must not have a
conservative Hispanic on the court I think was indefensible.
And I have deep concerns about what the administration is doing
now with a package of three nominees to the DC Circuit, after
the Senate just confirmed a very qualified nominee to the DC
Circuit, I believe is an attempt by this administration to pack
that court because the DC Circuit has been one of the few
restraints on government power exercised by the Obama
administration.
Now, those are all concerns that are extrinsic to you, but
they are concerns about the nominations put forward by this
administration.
But I will confess, Professor Pillard, that I have concerns
about your nomination. You have not served on the bench, and so
we had a limited universe of materials by which to assess your
judicial philosophy and the approach you would take to serving
on the bench. The primary source we have is your academic
writings, and those writings to me suggest that your views may
well be considerably out of the mainstream. So I would like to
ask you about some of those writings.
I would like to first ask about an article you wrote in the
Emory Law Journal in 2007 where you argued--and this is a
quote--``The equal protection critique of abstinence-only
curricula''--in schools--``is strengthened and rendered more
amenable to judicial resolution by the fact that sex education
classes are designed not only to expose students to ideas but
also to shape behavior.''
In that article, if I understand what you are saying
correctly, you were arguing that if a State decides to teach
abstinence only, that that decision by State and local
officials, in your judgment, may well be unconstitutional and
it is an appropriate role for a federal court to strike down a
State or local government's decision to teach abstinence only.
Is that indeed what you were arguing?
Ms. Pillard. No, Senator Cruz. In that article--let me say
first I am a mother. I have two teenage children, one boy and
one girl. And if my children are being taught in sex education,
I want both my children to be taught to say no, not just my
daughter. I want my son to be taught that, too.
The article was very explicit in saying I do not see any
constitutional objection, justiciable or otherwise, to
abstinence-only education that does not rely on and promulgate
sex role stereotypes. So the concern I had in the article was
with inequalities that might be contrary to a long line of
established Supreme Court cases on the equality between men and
women. That was the only constitutional concern that I
identified in the article.
In my view, the front line and in virtually every case the
only people who are involved in developing curriculum are the
local schools and the parents in the communities. That is
absolutely under our constitutional system where the writing of
curriculum resides. And when I talked in my article about what
would make something more amenable to judicial review, it was
because just prior to that I had said I do not think there is
any settled law making any of this reachable by courts. And as
we academics do, I said, you know, the argument that one would
make to make it amenable by courts is the one you quoted.
So it was in the context of saying this is--you know, there
may be no doctrine even raising these, but this is a concern.
This is an academic article. Academics are paid to, you know,
test the boundaries and look at implications of things. As a
judge, I would apply established law of the U.S. Supreme Court
and of the DC Circuit and ensure----
Senator Cruz. Professor Pillard, the arguments you have
presented here today may well be sound policy arguments, why
abstinence only should not be the curriculum, and I would fully
expect a school board or a State legislature to consider those
arguments, and that would seem to me an appropriate forum to
make those arguments.
What you stated in this Law Review article was not that as
a policy matter school boards should not choose to do so;
rather, it was that their decision to teach abstinence only may
well be unconstitutional, and you explicitly said and that it
is justiciable, that federal courts, the argument for them
having the authority to set aside those decisions under the
Constitution, you found strengthened and considerable. And I
would note that I find that an extraordinary position, and if
that is unconstitutional, it is hard to imagine what decisions
are beyond the ambit of federal courts.
Let me get to a second area because my time is rapidly
expiring, and a second area of concern I have is the statements
you have made concerning--in the Hosanna-Tabor case, and in
particular, there the question was: What is a church's ability
to control its own hiring? And in that case, you gave a
September 2011 press briefing where you stated that the case
against the church there strikes you as a ``strong case for the
employee. The big news will be if the Court decides it for the
church.'' And you stated the position that the church has a
First Amendment right to choose who it hires was a
``substantial threat to the American rule of law.''
Now, that position, as you know, was rejected unanimously
by the U.S. Supreme Court, and indeed, justice Elena Kagan, no
conservative, described the position you articulated there when
it was articulated by the Obama Justice Department as
``amazing'' to suggest that the First Amendment does not
protect a church's ability to choose, make its own hiring.
Do you continue to hold those views?
Ms. Pillard. Thank you, Senator Cruz. The Court has ruled--
and I am the first to admit that I called that case wrong. That
was a case that commentators acknowledged was a difficult case
going into the Court because, on the one hand, you had
employees' ability to access the general rule of law system
outside the church, and on the other hand, you had the church's
claim to have the ability to have its own internal system. And
it was--there were very strong competing interests on both
sides, and the hard question was where to draw the line.
I was wrong in my prediction about the way that case would
come out, and I have no question about my ability to apply that
precedent. In fact, I am grateful for the clarity that it
provides in a difficult area. And I could apply that like any
other precedent of the U.S. Supreme Court, were I to be
confirmed to the DC Circuit.
Senator Cruz. Thank you. My time has expired.
Senator Klobuchar. Thank you very much.
Senator Blumenthal has returned.
Senator Blumenthal [presiding]. Thank you, Senator
Klobuchar, for taking the Chair and also to my colleague,
Senator Whitehouse, and thank you, Senator Cruz.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Professor Pillard, you argued Nevada v. Hibbs in which the
Supreme Court upheld the Family and Medical Leave Act's
application to States and their employees. I have a few
questions about your role in that case.
First, why did you get involved in that case?
Ms. Pillard. Thank you, Senator Franken. I was asked to be
considered as one of the candidates to be a volunteer lawyer to
take that case as lead counsel in the U.S. Supreme Court, and I
was very happy to be considered. And the client, after
consultation with me and the other potential lawyers, chose me
to represent him, and he was a Nevada employee working for the
State of Nevada, and his wife, Diane, was critically injured in
a terrible automobile accident. She had a neck injury that
threatened her life, and he wanted to take time off from work
to care for her. And he was fired from his job as a result of
trying to exercise his rights under the Family and Medical
Leave Act. And the State of Nevada took the position that he
could not recover damages against the State because of its
immunity, and the question turned on whether the Family and
Medical Leave Act could validly apply to the State.
And the Supreme Court, in a decision authored by then-Chief
Justice Rehnquist, seemed to not have trouble finding that it
could, it did apply to the State, and that was a case in which
the U.S. Government was participating to defend the
constitutionality of the federal law at issue in the case. So I
had the opportunity to argue alongside the Assistant Attorney
General in the Bush administration to the Supreme Court
defending the constitutionality of that law.
Senator Franken. So you were working alongside the Bush
administration in this. What was that like?
[Laughter.]
Ms. Pillard. It was terrific. I work--as I mentioned, in
the Supreme Court Institute I work with people from all across
the spectrum, and the Assistant Attorney General in that case
also happened to be a colleague and personal friend and a
colleague from Georgetown Law who was on leave from the law
center working as a lead lawyer in the Bush administration.
Senator Franken. I did not expect to get a laugh on that.
[Laughter.]
Senator Franken. I was actually just asking.
So what lessons did you draw from that case?
Ms. Pillard. Maybe the same lesson that I drew from
Hosanna-Tabor, which is do not ever predict how you think
something is going to come out, because when I took the case,
everyone said it was a real uphill battle, and I think it was
very gratifying that the Court ruled.
I ended up basing some of my academic work on the Chief
Justice's opinion because he talks about the importance of the
law not assuming that caregiving responsibilities are the
province of women and that men have no desire or need for
family leave, for example, to be offered to them on equal
terms. So I was very, you know, pleased and interested in the
ramifications of that opinion.
And I also found it, as I find it in the Supreme Court
Institute, extremely gratifying to find common cause with
people who are often depicted in the news and in the public eye
as having irreconcilable views. It just has not been my
experience. I have had many times in my career, whether on the
executive committee of the American Arbitration Association,
where I work with general counsels from corporations and people
from international law firm practices, and really from a wide
range of perspectives, and I find it really gratifying to work
on common projects that advance the public good, and I find it
satisfying, and I found that satisfying also, working on the
Hibbs case.
Senator Franken. Well, we share that view, that it is
satisfying to work with folks that some people outside think
have irreconcilable views, but here in the Senate, we see time
and time again where we do come together, and that is a great
lesson to draw.
You spoke about it influencing your academic work, and I
think as we have seen in some of the questioning today, there
is a difference between being a judge and being a professor.
See, now, I expected the laugh on that one.
[Laughter.]
Senator Franken. And so I was just--what do you think that
difference is? How is the work of a judge different from the
work of a professor? And do you think you would have a hard
time making that transition from being an academic to being a
judge?
Ms. Pillard. Thank you, Senator Franken. I have had many
different aspects of my career, and the professor aspect is in
some ways most different, because as a professor you are really
called on to be provocative, to push the boundaries, to come up
with novel theories. And, you know, I have also been a practice
lawyer. I have also worked in government as a counselor. I have
also worked as a teacher. And there are differences between and
among all these roles. And the role of a judge is a very
constrained one, and I appreciate that, in part because I have
held very many different roles already, and each of them has
its distinct features.
But I would emphasize that the role of a judge is to put
aside interests, values, policy objectives, experimental and
novel theories, and to apply the law--the Constitution, the
statutes, the regulations--to the case at hand and to do that
as rigorously and meticulously as is possible.
Senator Franken. Well, obviously, in arguing cases before
the Supreme Court and other courts, you get a perspective on
the judge's role because that is who you are arguing to.
Do you have an overarching legal theory? Is there a Pillard
doctrine that we should know about and that may or may not
apply to being a judge?
Ms. Pillard. Senator Franken, there is no Pillard doctrine.
I would, in approaching the bench, emphasize three things: the
attention to the record, the attention to the arguments of
counsel, and the scrupulous application of existing and binding
law to the facts of the case.
I cannot overemphasize how important it is for an Article
III judge to be intimately familiar with the factual record in
a case. And I see this--you know, cases will come up, they will
come through the institute, or they will come up when I was
clerking, or they will come into the Solicitor General's
office, and people think the case is raising such-and-such an
issue. And when you get into the record and you delve down,
sometimes you see there is no jurisdiction, or the issue that
is raised actually is a different issue that is raised in the
case. And as a judge who has limited power under Article III,
there is nothing more important than knowing which issues are
presented by the case and which issues are not.
I think it is also important for a judge to be guided by--
have an open mind in reading--the briefs for both sides and an
open and engaged attitude toward counsel at oral argument.
And, finally, the role of the judge is to be a straight
shooter, to apply the law that is in the precedents, the
constitutional law, the statutory law, to the case at hand. And
those would be, for me, my guides in being a faithful shepherd
of the great historical legacy that we have as a country, which
is our system, our system of courts.
Senator Franken. Thank you.
Thank you very much, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Franken.
Senator Flake.
Senator Flake. Thank you, Mr. Chairman. Thank you, and I
apologize for not being here earlier. I had another hearing.
But let me just ask a general, very general question first, and
then one specific.
Do you believe that judges should look to the original
meaning of the words and phrases in the Constitution when
applying them to current cases?
Ms. Pillard. Thank you, Senator. I certainly do, and I
would be guided in methodological questions like originalism by
the guidance of the U.S. Supreme Court. So, in effect, the
precedents on method, I think, are equally binding on judges as
the substance of the opinions themselves, and we have many
Supreme Court opinions which direct us to look to the original
intent. So absolutely, yes.
Senator Flake. So you would look to determine original
meaning, original intent, you would look to the Constitution,
and where that is unclear, you look to current Supreme Court
cases or precedent or those that have followed?
Ms. Pillard. My understanding of my role as a judge would
be that I would be bound by the precedents and the precedents
that direct us to look at the original meaning.
Senator Flake. Even if those--I caught a little of the
questioning before, but where it seemed that your feelings seem
to be at odds with what the Court had determined or you could
not predict? Was that allowing your own feelings or just--we
all predict elections and get them wrong all the time. But with
a court case, it would--and hearing your answer to a previous
question, it would seem that you felt that it ought to go the
other way. But your application of the law has to be what
precedent is, right?
Ms. Pillard. Absolutely. I would have to check my feelings
at the door and look at the Constitution, at the text, at the
meaning, and at the precedents, absolutely.
Senator Flake. In a footnote to your article titled, ``The
Human Right to Sex Equality at the Work-Family Fault Line,''
you quote and seemingly agree with an author who said the
``rights traditioned in the U.S. Constitution just seem to have
run out,'' but there is ``promise in international human rights
as a potential source for social rights in the United States.''
Is that a sentiment you agree with? And if not, why would you
have footnoted it in an article that you wrote, seemingly
favorably?
Ms. Pillard. I do not adopt that. I cited several things in
that article as illustrative of different points. The rights--
--
Senator Flake. But that seemed to be in support of your
conclusion in your article.
Ms. Pillard. The article was arguing about the United
States rights tradition, and it was speaking to a European
audience in Switzerland, and I was trying to explain to them
and compare for them the Nevada v. Hibbs decision and how it
might relate to their traditions.
The fundamental rights tradition in the United States is a
domestically based constitutional tradition. In Europe, some of
the systems are different. The United Kingdom Fundamental
Rights Charter is adverting to international rights, and so the
article was making comparison between our fundamental rights
tradition--and another aspect of the Hibbs case that made it
hard to describe and explain over there was that we have a
federal system, not a national system, and so really the
animating issue in the Hibbs case was the question of the
limits on federal power and the Boerne v. Flores line of cases.
And those are really alien concepts to the European audience.
So, you know, in the article, I was endeavoring to make
analogies between their rights traditions and our rights
traditions.
Senator Flake. So to be clear, you do not believe that
there is a promise in international human rights as a potential
source of social rights of the U.S. You would not look to other
constitutions.
Ms. Pillard. Not unless Congress would so legislate, no. I
mean, if Congress thought that there were, you know, examples
they wanted to draw from in the international human rights
tradition, then I would say have at it. But, you know, my role
as a judge would be to apply the American rights tradition as
it is announced in positive law, be that in the Constitution or
in statutes. That is right.
Senator Flake. Well, thank you.
Senator Blumenthal. Thank you, Senator Flake.
Senator Grassley, did you want to ask any additional
questions?
Senator Grassley. I will submit some further questions for
answer in writing. Thank you.
Ms. Pillard. Thank you.
Senator Blumenthal. I believe that concludes the
questioning of our Committee this morning. Thank you very, very
much for being with us today and answering these questions so
candidly and forthrightly. I think you have made clear that the
difference between a professorial role and a judicial role is
one that you well understand and that citations or footnotes in
articles do not necessarily mean adherence or support for the
positions stated in those articles, and that, in fact, the
articles that you have written are not necessarily going to
influence your role as a judge, in fact, that you would adhere
to precedents and statutes and the established principles of
law as you know so well. So I think that point has been made
clear, as well as your ability to separate yourself from past
positions of advocacy, very important to this Committee and
eventually to the courts.
So thank you very much, Ms. Pillard, Professor Pillard, for
being here today. Thank you to your family as well for joining
you and for supporting you in this very arduous process. And
with that, I believe you are excused. Thank you.
Ms. Pillard. Thank you. It has been an honor to be here to
answer your questions. Thank you so much.
Senator Blumenthal. And as soon as we have a chance to put
the name identifications in place, we will call forth the next
nominee.
[Pause.]
Senator Blumenthal. We are going to come to order and begin
the next portion of our hearing. Let me ask the nominees to
please stand and raise your right hand. Do you affirm that the
testimony you are about to give the Committee will be the
truth, the whole truth, and nothing but the truth, so help you
God?
Justice Morris. I do.
Judge Watters. I do.
Mr. Meyer. I do.
Ms. McCafferty. I do.
Senator Blumenthal. Thank you. Please be seated. And I will
invite each of you to make a brief opening statement. Feel free
to identify the members of your family that are here. Justice
Morris.
STATEMENT OF HON. BRIAN MORRIS, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MONTANA
Justice Morris. Thank you, Mr. Chairman, Senator Grassley,
for holding this hearing here today. It is my honor to be here.
I first want to thank my colleagues on the Montana Supreme
Court for their forbearance and patience as I go through this
process and get distracted from the work of my day job. And I
also want to recognize and thank my family who is here with me
today: my beautiful wife, Cherche; and my middle son, Max, is
here representing his four siblings. My daughter, Mekdi, was
somehow--she traveled from Montana, was somehow persuaded a
morning with the Domenici twins is more fun than watching me
here testify. And my son, Willem, is home in Montana, along
with his younger brother, Aiden. But they are here with me in
spirit.
[The biographical information of Justice Morris follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Blumenthal. Judge Watters.
STATEMENT OF HON. SUSAN P. WATTERS, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MONTANA
Judge Watters. Thank you, Chairman Blumenthal and Senator
Grassley. I am also very honored to be here. I want to express
my gratitude to President Obama for nominating me for this
position and also my gratitude to Senator Baucus and Senator
Tester, and thank Senator Baucus for his very kind words this
morning.
I am blessed to be here with my family also: my husband,
Ernie Watters, and my daughters, Jessica Dunn and Maggie
Kelleher. And it is true, they both have young children and
jobs and so forth, and I did not expect them to be able to be
here, and they flew in last night and surprised me, and I am
very happy that they are here and able to share this with me.
And I am very pleased that you were able to set up this hearing
so quickly.
Thank you very much.
[The biographical information of Judge Watters follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Blumenthal. Thank you.
Mr. Meyer.
STATEMENT OF JEFFREY ALKER MEYER, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF CONNECTICUT
Mr. Meyer. Thank you, Senator. It is a particular honor to
appear before you as Chairman in light of your remarkable
career as perhaps Connecticut's foremost attorney in the
practice and in the intellectual sphere in Connecticut before
your Senate career and continuing.
I am also very thankful to the Ranking Member, Senator
Grassley, and to the entire Committee as well as to President
Obama and for the faith that he has put into me in nominating
me for this position.
I have had so much support from family members. I have six
brothers and sisters who have settled all across the United
States. Some of my family have been able to come here, as well
as two of my students and other supporters that I have had at
both Quinnipiac and Yale Law Schools.
As Senator Murphy indicated and you indicated, Mr.
Chairman, my father, State Senator Ed Meyer, was able to come
here. My mother could not be here, but my father has been just
a great inspiration for me, especially as a lawyer, practicing
lawyer, former Assistant U.S. Attorney, a legislator in both
the States of New York and Connecticut in the area of public
service.
I am also joined by my daughter, Cara Meyer, a gifted
chorale singer and now about to start her freshman year at Yale
College; and my son, Zane Meyer, who is a gifted tap dancer,
and he is about to start his freshman year of high school.
And, finally, I would be remiss if I did not mention the
love of my life, Linda Ross Meyer, who has joined me here today
as well. Linda hails originally from Kansas, and she and I
actually first met just across the street over at the U.S.
Supreme Court when she was clerking for Justice Sandra Day
O'Connor and I was clerking for Justice Blackmun. Today, July
24, marks our 20th wedding anniversary, so it is especially an
honor to be here.
Senator Blumenthal. We are sorry to interfere with that
important date.
[Laughter.]
Mr. Meyer. Thank you.
Senator Blumenthal. But it will be memorable. And thank you
for your kind words.
[The biographical information of Mr. Meyer follows:]
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Senator Blumenthal. Ms. McCafferty.
STATEMENT OF LANDYA B. MCCAFFERTY, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW HAMPSHIRE
Judge McCafferty. Thank you, Senator Blumenthal and Ranking
Member Grassley, for having this hearing. It is an honor to be
here.
First, I would like to thank President Obama for the honor
of this nomination. I would like to thank Senator Shaheen for
her kind words today and for her trust in me in submitting my
name to the President. I would also like to thank Senator
Ayotte, who has been supportive of me as well.
Today, I am lucky to have family members with me. My
husband of 27 years, Patrick McCafferty, is here, along with ny
two wonderful daughters: Maureen McCafferty, named for my
mother-in-law. Maureen is 16 years old going into her junior
year of high school. And Claire McCafferty is 11, both of whom
have been very well behaved in the back and are sitting behind
me. Claire is going into the sixth grade.
Both of my parents are here today, and I am very lucky to
have them both here. And my brother, Galen; my first cousin,
Rob Householder, has come in from Canada; and my brother-in-
law, Terrence, has come down from New York City. I feel very
honored to have them here with me today.
Thank you.
[The biographical information of Judge McCafferty follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Blumenthal. Thank you all.
I am going to yield to Senator Grassley for his questions
before asking mine.
Senator Grassley. Thank you for that courtesy.
For you, Mr. Morris, you probably anticipated a question on
your Supreme Court decision Western Tradition Partnership, and
basically I am asking you to explain a position, but let me
give some background where I am coming from.
You joined a majority opinion that ignored the ruling of
the Supreme Court, Citizens United. Dissenters from that
opinion stated that although they preferred a different policy
outcome, courts are obliged to follow the Supreme Court
decision. Do not answer now, but the first question would be:
Why did you not follow a clear Supreme Court precedent? And
then I want to quote from a dissenting opinion: ``Whether we
agree with the Supreme Court's interpretation of the First
Amendment is irrelevant. In accordance with our Federal system
of Government, our obligations here are to acknowledge that the
Supreme Court's interpretation of the U.S. Constitution is, for
better or for worse, binding on this court, on the officers of
this court, to apply the law faithful to the Supreme Court
ruling.'' But, further, ``When the highest Court in the country
has spoken clearly on the matter of Federal constitutional law,
as it did in Citizens United, the highest court in Montana is
not at liberty to disregard or parse that decision in order to
uphold State law. While politically popular, it is clearly at
odds with the Supreme Court's decision.'' Why were you unable
to join that view? Those are two questions that are very
similar.
Go ahead, please.
Justice Morris. In the Western Tradition Partnership case,
we faced a challenge to a Montana statute that had been on the
books since 1917. It was constitutional at the time it was
passed. The U.S. Supreme Court in the Citizens United decision
made it clear that based on the record before them, the federal
statute at issue was unconstitutional. It implied that there
were circumstances that may be available when a restriction on
spending may be appropriate where there is sufficient evidence
of corruption.
We looked at a different case than Citizens United. We
looked at Western Tradition Partnership. The court examined the
record in that case and the history of corruption in Montana
that supported the passage of the statute in 1917 and
determined that on that record that it could be held
constitutional. We as a court have an obligation to uphold
statutes of the legislature when possible when faced with
constitutional challenges. We thought that given this record,
there was a possibility that that statute could conform to the
mandates of Citizens United. We obviously were wrong. The Court
disagreed with us. They made it very clear to us. It is our
obligation as a State court to follow Citizens United and as
supplemented by the Western Tradition's reversal, and it would
be my obligation as a federal judge to follow all precedents of
the U.S. Supreme Court and the Ninth Circuit, if I were
confirmed.
Senator Grassley. I will have written questions for all of
you because I only have time to ask each one of you one
question.
In 2008, Mr. Meyer, Jeffrey Meyer, you signed a letter to
Governor Rell and members of the Connecticut General Assembly
in support of repeal of the Connecticut death penalty. In 2011,
you said that halting the repeal of the death penalty is
``certainly our hope.'' Could you explain--well, could you
please discuss your views on the constitutionality of the death
penalty?
Mr. Meyer. Well, Senator Grassley, the Supreme Court has
authoritatively ruled that the death penalty is constitutional
in most circumstances. If I have the honor to be confirmed as a
federal district judge, I would apply the law that the Supreme
Court has directed.
My background with respect to the death penalty has
principally involved the representation of Dr. William Petit,
whose family was horribly murdered in Cheshire, Connecticut, in
July 2007. I agreed to represent him, and in connection with
the statement that you referenced, in 2011, I worked with him
with respect to delaying the repeal of the death penalty in
Connecticut as it would have intervened with and interfered
with the ongoing trial of the second of the defendants who
viciously murdered his family.
So I would be prepared, if confirmed, to support the
application of federal law and the Federal Death Penalty Act if
I had a particular case come before me.
Senator Grassley. Okay. Ms. Watters, in State v. Steglich
you ruled that certain Montana criminal statutes requiring a
witness to an accident to simultaneously remain at the scene of
the accident and render any reasonable amount of assistance to
those injured in the accident, you said that that was
unconstitutional on the face and as applied. Would you explain
how you approach cases challenging the constitutionality of a
statute?
Judge Watters. Thank you, Senator Grassley. Well, first, I
approach those constitutionality issues from the position that
the statute is constitutional and with an appreciation of the
precedent that has been developed both in the State of Montana
and the U.S. Supreme Court that statutes are presumed to be
constitutional, and it is only in rare circumstances that they
would be deemed not to be constitutional. And so that is how I
approach issues with regard to constitutionality of the
statutes.
Senator Grassley. Ms. McCafferty, you spent a substantial
portion of your career as an attorney in the New Hampshire
Public Defender's Office. So the Committee, or at least I would
like some assurance that you can give me that you will have no
bias toward criminal defendants. And what has been your
practice as a magistrate to ensure fairness to all parties?
Judge McCafferty. Thank you, Senator Grassley. It is
essential to the administration of justice that all people who
come before a federal judge--any judge for that matter--feel as
though they are treated fairly and impartially. And I am deeply
committed to that principle. I was a public defender, as you
mentioned, for many years. I was also a prosecutor as bar
counsel for many years for the Supreme Court of New Hampshire.
And in all my dealings with everyone, I abided by fair
treatment to all. I care deeply about that. And as a magistrate
judge for the past three years, I have treated everybody who
has come before me--and, again, I have obviously the
government's attorneys, I have federal defenders and defense
lawyers, corporations, defendants, and it is the highest duty
of a judge to treat everybody fairly and impartially, and I am
committed to that, Senator.
Senator Grassley. Let me thank you all, congratulate all of
you, and let me ask you--or let me suggest that you respond to
my questions in writing, and thank you for your courtesy.
[The questions of Senator Grassley appear as a submission
for the record.]
Senator Blumenthal. Thank you very much, Senator Grassley.
I want to ask each of you some general questions, but first
to say how impressed I am with each of your distinguished
backgrounds, your service, both public service and your service
to your communities, and say that I really look forward to
voting for you and supporting you. I think we are very, very
fortunate to have people of your caliber willing to make the
sacrifices. They are very real sacrifices that judges and their
families make simply to go through this process, which is
demanding in itself, as you know better than I.
But let me ask just generally each of you--and you can
answer in order, beginning with Justice Morris--are there any
particular personal qualities or traits or judicial
philosophies that you hope to emulate?
Justice Morris. Well, I think one of the most important
attributes of a judge is humility and recognizing that your
role is simply to resolve a dispute between the parties
presented to you and not to opine on issues of public policy or
other things that may interest you and recognize the limited
role you play in the process and to get a decision out as
quickly as possible so that the litigants can get on with their
lives.
Judge Watters. Senator Blumenthal, I think that there are a
number of qualities that I think are important for a judge. I
think that a judge has to be scholarly in the law. I think that
a judge's integrity has to be above reproach. And I think that
a judge has to have a very, very strong work ethic. I know that
the caseload in the Billings Federal District Court is very
large, and there are a lot of trials, and so it will be
important to make sure that that is managed well, and that will
require a strong work ethic and a dedication to the job, which
I will bring to that job if I have the chance to be confirmed.
Senator Blumenthal. Thank you.
Mr. Meyer. And, Senator I would agree with the values and
virtues that my colleagues have indicated. My role models are
many of the judges before whom I have appeared in the
Connecticut Federal court, and including former Judge Mark
Kravitz, who recently passed, whose qualities for intellectual
acuity, fairmindedness, and general personal character were
exemplary, exemplarily known both within Connecticut and
nationally.
Senator Blumenthal. Thank you.
Judge McCafferty. I agree with all of my colleagues. I
would say that the most important qualities are fidelity to the
rule of law, an ability to be fair and impartial, and as Judge
Morris said, humility is critical. And humility is critical
because a judge's thinking must be tethered to the language of
statutes and precedents, and a judge without humility is less
likely to be tethered to those and is more likely perhaps to
impose his or her biases or beliefs in a case. A judge with
humility also is a judge who is more likely to have a
temperament appropriate for the bench.
My role models are many. In my opinion, the Article III
judges that I currently work with are really the gold standard
of those principles, and I am very fortunate to be joining, if
I am so lucky to be confirmed, that court.
Senator Blumenthal. Let me ask all of you the next
question, which has been somewhat anticipated by the answers
given by two of the nominees. Who would be the judge or
justices whom you most admire who you would seek to use as your
model of service on the bench? Why don't we begin again--and
there does not need to be a single one, or you can duck the
question entirely if you----
[Laughter.]
Justice Morris. I would identify two. I had the privilege
of serving up close as a law clerk for Chief Justice Rehnquist
and for Justice O'Connor. I always admired Chief Justice
Rehnquist, the way he operated the Court and managed the
caseload and approached deciding cases. I had the opportunity
to have many discussions with him over the course of that year.
And I also admired Justice O'Connor for her knowledge in
particular of issues of significance of those in the West, such
as American Indian law or water law.
Senator Blumenthal. Thank you.
Judge Watters.
Judge Watters. I do not know that I could state a
particular judge or justice that I would necessarily emulate,
other than, I think, as I stated in my previous answer, I have
been in front of a number of judges when I was a practicing
attorney, and having been on the bench for over 15 years now. I
just think it is very important for a judge to be a good
listener, for those who appear before the judge in the
courtroom to feel like they have been heard, and that the judge
will give their positions the consideration that they deserve,
that the judge does, in fact, look at each side of each issue
and decide those issues according to the precedent and the
statutes, and that the judge decide only those issues before
her and that she try to do that in a very timely manner. And
that would be what I would try to do and what I have tried to
do in my career as a State district court judge and what I
would continue to try to do if I am so lucky as to be
appointed.
Mr. Meyer. Well, Senator, I could mention just about any of
the judges and magistrates of the U.S. District Court in
Connecticut. I would identify perhaps just three just because I
happened to have extended criminal trials as a prosecutor
before them.
One would be Chief Judge Alvin Thompson, who exemplifies,
in my view, the model of intellectual engagement and humility
and quiet calm in the courtroom.
A second would be Senior Judge Ellen Bree Burns, who
continues to work as a senior judge in the district court, and
she exemplifies a sense of wisdom and equanimity in the way
that she conducts her courtroom proceedings.
And the third would be Judge Janet Arterton, who has
extreme intellectual rigor in all that she does and also runs a
very crisp courtroom and efficient control of her docket.
Those are just three of the judges that I would mention.
Judge McCafferty. I had the good fortune, when I graduated
from law school, to clerk for Judge Norman H. Stahl. He was on
the Federal District Court in New Hampshire when I started
clerking for him, and then he moved up to the First Circuit, so
I spent a year on both with him. He has been an inspiration to
me. He is dedicated to the rule of law. He has an innate sense
of fairness. He has a humble heart. And he has a real
dedication to public service that has been an inspiration to
me, and I will try to emulate him.
Senator Blumenthal. Thank you.
Let me ask a question, again of all of you, which I think
is important. Do you have any personal views that would make it
impossible, any beliefs that go to the core of who you are,
either your religious faith or any other beliefs that would
make it impossible for you to follow precedents or decisions of
the U.S. Supreme Court or the appellate courts?
Justice Morris. I do not.
Judge Watters. No, I do not.
Mr. Meyer. No, I do not.
Judge McCafferty. I do not.
Senator Blumenthal. And do any of you disagree so strongly
with any of those precedents or decisions of the higher courts,
higher than the one on which you will hopefully serve, that
would make it impossible for you to follow those precedents?
Justice Morris. I do not, not even the Citizens United
case.
[Laughter.]
Judge Watters. No, I do not.
Mr. Meyer. No.
Judge McCafferty. No, Senator Blumenthal.
Senator Blumenthal. Thank you. As I mentioned, I hope that
we will deal expeditiously with your nominations. I hope that
they will be voted favorably by this Committee as promptly as
possible. We need judges in each of the districts that you have
been nominated to serve, and, again, I just want to add my
thanks to you and your families for your willingness to
undertake this very profoundly important obligation. Each of
you, as I know well from my own practice in the courts, both as
a prosecutor and as a private attorney, are for many of our
litigations the ultimate source of justice in the federal
courts, and your voice and face, the personal traits that you
have described, will have an enduring and profound impact on
each of those litigants, not only in their lives but how they
regard the quality of justice in this country.
So, again, my thanks to each of you, and I look forward, if
I am ever allowed back in the courtroom, to perhaps appearing
before you in your new roles. Thank you very much.
We are going to keep the record open for one week in case
any of my colleagues have written questions that they wish to
submit, and with that, this hearing is adjourned. Thank you.
Justice Morris. Thank you.
Judge Watters. Thank you.
Mr. Meyer. Thank you.
Judge McCafferty. Thank you, Senator.
[Whereupon, at 12:13 p.m., the Committee was adjourned.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HON. ROBERT LEON WILKINS, OF THE DISTRICT OF COLUMBIA, NOMINATED TO BE
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT; TIMOTHY L. BROOKS,
OF ARKANSAS, NOMINATED TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
ARKANSAS; JAMES DONATO, OF CALIFORNIA, NOMINATED TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF CALIFORNIA; HON. BETH LABSON FREEMAN, OF
CALIFORNIA, NOMINATED TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
CALIFORNIA; AND HON. PEDRO A. DELGADO HERNANDEZ, OF PUERTO RICO,
NOMINATED TO BE DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO
WEDNESDAY, SEPTEMBER 11, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:01 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senators Whitehouse, Feinstein, Franken, Grassley,
and Lee.
Senator Whitehouse. This hearing will come to order. We are
here to consider the nominations of Robert Leon Wilkins, to be
United States Circuit Judge for the District of Columbia
Circuit; and in a second panel, for Timothy Brooks, James
Donato, Beth Freeman, and Pedro Delgado Hernandez, to be United
States district judges.
I think that what I will do--I believe that Senator Cardin
is here to speak for Mr. Wilkins, and I think the other
Senators are for the district judges, so let me proceed with
Senator Cardin right now. And we will recess this hearing
briefly at 10:05, in just a few minutes, for a moment of
silence coincident with the moment of silence that will be held
on the Senate floor in memory of the victims of the 9/11
attack, and in my view, in specific gratitude to those on
United Airlines Flight 93, whose individual heroism has
probably been the thing that allows us to have this hearing in
this building, which might not otherwise be here.
So, Senator Cardin, if I rap the gavel during your remarks,
that is why, and we will just have a moment of silence and then
continue. Senator Cardin.
PRESENTATION OF ROBERT LEON WILKINS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. BENJAMIN L.
CARDIN, A U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Well, thank you, Senator Whitehouse,
Senator Grassley. It is a pleasure to be back before the Senate
Judiciary Committee, where I have very fond memories. So it is
good to be back, and I am glad to be here on behalf of Judge
Robert Wilkins for the DC Circuit. Mr. Chairman, I would ask
that my entire statement be made part of the record.
Senator Whitehouse. Without objection.
Senator Cardin. Let me explain why I am here as a Maryland
Senator for Robert Wilkins, who is a resident of the District
of Columbia.
Senator Whitehouse. I am sorry to interrupt. They have
started the moment of silence on the floor.
[Moment of silence.]
Senator Whitehouse. All right. Thank you. Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman.
Mr. Chairman, as I pointed out, I am here on behalf of a
resident of the District of Columbia, Judge Wilkins, for
several reasons.
First, as I know everyone here is aware, the residents of
the District do not have resident Senators, but the District is
the former land of Maryland, so the Maryland Senators take
special interest in the residents of the District of Columbia.
And I could not be more proud to be here on behalf of Judge
Wilkins.
Judge Wilkins also has another direct connection to the
State of Maryland that I think typifies his commitment to
public service. He was the plaintiff in the civil lawsuit
Wilkins v. Maryland. Judge Wilkins was a victim of racial
profiling, and he decided to do something about it, and he
joined in legal action against the Maryland State Police. And
as a result of that legal action, there were landmark consent
judgments entered into that have been the basis of effective
action to deal with racial profiling. That lawsuit inspired
President Clinton's Executive order and action by over half of
our States to deal with the problems of racial profiling, and I
am hopeful that the Congress will take up S. 1038, the End
Racial Profiling Act.
My point is that Judge Wilkins saw an injustice, stepped
forward to do something about it, and was effective in
developing a strategy to help all the people of this country.
Judge Wilkins, I want to thank you, I want to thank your
family for your commitment to public service and your
willingness to step forward for this very important position on
the DC Circuit.
Judge Wilkins has an excellent record of academic
achievement, his public commitment, and community service. He
is a native of Muncie, Indiana. He attained his B.S. cum laude
of chemical engineering from Rose-Hulman Institute of
Technology and a J.D. from Harvard Law School. Following
graduation, Judge Wilkins clerked for the Honorable Earl B.
Gilliam of the U.S. District Court for the Southern District of
California. He later served as staff attorney and head of
special litigation for the Public Defender Service for the
District of Columbia. He then practiced as a partner in Venable
specializing in white-collar defense, intellectual property,
and complex civil litigation before taking the oath as a judge
on the district court for DC. The ABA has given him its highest
recommendation unanimously.
Judge Wilkins also has a very distinguished record of
community service. He played a key role in the passage of the
federal statute establishing the National Museum of African
American History, and then he has worked tirelessly to see that
law implemented and continues in his interest to see that to
fruition.
Judge Wilkins continues his pro bono work to this day. He
currently serves as the court liaison to the Standing Committee
on Pro Bono Legal Service of the Judicial Conference of the DC
Circuit. To me, he has demonstrated his commitment to carrying
out the oath of a judge to provide justice to all, regardless
of their financial ability.
As a U.S. District Judge for the District of Columbia since
2011, Judge Wilkins has presided over hundreds of civil and
criminal cases, including both jury and bench trials.
Mr. Chairman, we have already vetted this nominee, we have
already voted on this nominee when we approved him for the DC
District Court. He is eminently qualified. We are very
fortunate for his willingness to continue to serve the public
now in this critical appointment on the DC Court of Appeals. I
would urge the Committee to favorably recommend his
confirmation to the U.S. Senate.
[The prepared statement of Senator Cardin appears as a
submission for the record.]
Senator Whitehouse. Thank you, Senator Cardin. We
appreciate your statement of support.
And we are very honored to have Senator Feinstein, a senior
Member of this Committee, here. Senator Feinstein is the
Chairwoman of the Senate Intelligence Committee, so as you can
imagine, she has been working terrifically hard in the past
days and weeks as the serious situation has emerged, and we are
grateful that she has the time to come to this hearing. I will
recognize her now, because the press of other business will
take her away from us after that. Senator Feinstein.
PRESENTATION OF JAMES DONATO, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF CALIFORNIA, AND BETH LABSON FREEMAN,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
CALIFORNIA, BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Well, thank you very much, Senator
Whitehouse, and thank you for the very nice comments. I would
like to speak very briefly on two distinguished nominees to
serve on the Northern District of California.
I think as most people know, the way I do these judgeships
is that we have a bipartisan screening committee of attorneys
on both sides, Democratic and Republican, in the State. And
people submit their applications directly to these screening
committees. They screen, they vet, and they make a
recommendation to me, and that is how both of these nominees
came about. Each one of them would fill a long-time judicial
emergency vacancy on the Northern District of California, which
has a caseload that is actually 24 percent above the Nation's
average.
Let me begin with Judge Beth Freeman, who is sitting in the
first row on my right. It is my understanding that her husband,
William, her brother-in-law, David, and other family members
and friends are here to support her today, and I would like to
take the opportunity to say welcome to the heat in more than
weather in Washington.
Judge Freeman graduated from the University of California
at Berkeley in 1976 and Harvard Law School in 1979. She spent
four years in private practice at two law firms, after which
she began a career in public service by joining the San Mateo
County Counsel's Office. She served as deputy county counsel
for 18 years, from 1983 to 2001, representing county agencies
and school districts in State and federal courts. In the County
Counsel's Office, she tried more than 200 cases.
In 2001, she was appointed to the San Mateo Superior Court
by the then-governor. She has presided over more than 1,000
trials, including over 150 jury trials, and she has substantial
experience hearing both civil and criminal cases.
She has earned the deep respect of her colleagues who
elected her assistant presiding judge in 2008 and presiding
judge in 2010. And in the interest of full disclosure, my
daughter called me last night and said, ``I hope you are nice
to my friend, Judge Freeman.'' My daughter is newly retired as
the presiding judge in San Francisco.
Throughout 2011 and 2012, she led the San Mateo Court as
presiding judge while deep judicial budget cuts were forcing
severe cuts in judicial services, including courtroom closures
and furloughs all across the State of California.
She is active in her community. She served as president,
director, and secretary of the Junior Statesmen Foundation. She
has also served as president of Peninsula Temple Beth El. I
believe Judge Freeman will make an outstanding addition to the
federal bench in San Jose.
Now let me turn to Jim Donato. His wife, Rhonda, and his
daughter, Isabella, are here today, and I want to welcome them
as well. I saw your smile, so I figured out who you are.
Jim Donato earned his B.A. also from UC-Berkeley in 1983,
his master's also from Harvard in 1984, and his law degree from
Stanford in 1988. Obviously, Stanford is preferable. He was a
senior editor of the Stanford Law Review. Following law school,
he clerked for Judge Procter Hug on the Ninth Circuit Court of
Appeals.
In 1990, he joined the law firm of Morrison & Foerster,
where he worked as an associate from 1990 to 1993. He then
joined the city attorney's office in San Francisco, where he
served from 1993 to 1996 as a deputy city attorney in the trial
division. In his role, Mr. Donato was responsible for defending
San Francisco and its employees against civil claims, including
Section 1983 claims against police officers.
In 1996, Mr. Donato returned to private practice, joining
the law firm Cooley LLP, where he ultimately became a partner.
In 2009, he joined the law firm Shearman & Sterling LLP as a
partner. His work in private practice has focused on civil
litigation in a variety of complex fields, including antitrust,
unfair competition, trademark, and copyright law. He has been
trial counsel in 10 cases, including a recent federal antitrust
case.
Mr. Donato has published several articles on topics related
to business litigation, including antitrust law, electronic
discovery, and class action trials. He has also given back to
the legal profession, serving with the Bar Association of San
Francisco for many years, including as president in 2008. He
has been named a Northern California Super Lawyer every year
since 2004, and he has been an elected member of the American
Law Institute since 2000.
He also is involved in his community, serving on the Parish
Council of Newman Hall, Holy Spirit Parish, at UC-Berkeley, and
as a director of the Berkeley Symphony.
I believe that Jim Donato's education, experience, and
background in complex civil cases will be a great credit to the
bench in Northern California, where we have many of these,
which has--actually, the docket is 85 percent of those cases,
civil cases.
Let me conclude by saying that these two outstanding
nominees bring strong qualifications and experience to two
judicial emergency vacant positions in the Northern District,
and I hope both the Chairman here as well as the distinguished
Ranking Member of this Committee will see fit to move them on
as rapidly as possible.
I thank you for your courtesy, Senator Whitehouse.
Senator Whitehouse. Thank you, Senator Feinstein, and I
know you have to leave.
Senator Feinstein. Thank you.
Senator Whitehouse. If Senator Boozman will indulge me for
a moment, I will recognize our colleague from the other side of
the building, Representative Pierluisi, who has been waiting
patiently for a while. Representative Pierluisi.
PRESENTATION OF HON. PEDRO A. DELGADO HERNANDEZ, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO, BY HON. PEDRO
R. PIERLUISI, RESIDENT COMMISSIONER IN CONGRESS FROM THE
COMMONWEALTH OF PUERTO RICO
Representative Pierluisi. Thank you. Senator Whitehouse,
Ranking Member Grassley, and Members of the Committee, I am
honored to be here on behalf of the 3.6 million U.S. citizens
of Puerto Rico to introduce Judge Pedro Delgado Hernandez, who
has been nominated by the President to serve on the U.S.
District Court for the District of Puerto Rico.
Because Puerto Rico does not have U.S. Senators, I am
grateful to the Committee for extending me, a Member of the
House, an invitation to appear this morning.
I have known Judge Delgado Hernandez for longer than either
he or I would like to admit. Indeed, when I was serving as
Attorney General of Puerto Rico in the early 1990s, he was
nominated and confirmed as the territory's Solicitor General.
Two decades later, I am particularly pleased and, indeed,
rather moved to introduce him to this prestigious Committee now
that he has been nominated for a lifetime appointment on the
federal bench.
I believe that Judge Delgado Hernandez is an outstanding
nominee. Based on his wide-ranging professional experience, his
first-rate academic record, his sound judgment, his even
temperament, and his passion for public service, Judge Delgado
Hernandez is well prepared to handle the complex criminal and
civil cases that would come before him.
Born and raised in Puerto Rico, Judge Delgado Hernandez
received his undergraduate and law degrees from the University
of Puerto Rico. He served as an editor of the Law Review,
graduated magna cum laude, and earned the award given to the
student with the highest GPA in criminal law.
Following law school, Mr. Delgado Hernandez served as a law
clerk to the Honorable Juan Torruella in his capacity as Chief
Judge of the U.S. District Court of Puerto Rico and then as a
newly minted judge on the U.S. Court of Appeals for the First
Circuit.
After his clerkship, Judge Delgado Hernandez worked as an
associate and later as a partner at one of Puerto Rico's most
prestigious law firms.
In 1993, Mr. Delgado Hernandez became Solicitor General of
Puerto Rico, representing the Government of Puerto Rico in
appellate matters.
In 1995, he was confirmed as a judge on the Puerto Rico
Court of Appeals where he dealt with the full range of criminal
and civil matters.
Judge Delgado Hernandez subsequently returned to private
practice where he specializes in labor and employment law and
has served as outside counsel to the Puerto Rico Elections
Commission.
Judge Delgado Hernandez is also highly respected within the
legal community in Puerto Rico for his knowledge of national
law and ethics matters. If confirmed by the Senate, I am
confident that Mr. Delgado Hernandez will work tirelessly to
dispense justice based on the facts of the case at hand and
free from any prejudice.
I hope this Committee will support his nomination. Thank
you very much.
Senator Whitehouse. Thank you, Representative. We
appreciate very much that you have taken the trouble to come
across the building to us.
I will now recognize my friend and colleague, Senator
Boozman.
PRESENTATION OF TIMOTHY L. BROOKS, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF ARKANSAS, BY HON. JOHN BOOZMAN, A
U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Boozman. Thank you very much, Senator Whitehouse,
Senator Grassley, the rest of the Committee, for allowing me to
be here and to speak at this important hearing today. I am very
proud to be here to support Timothy L. Brooks' nomination as
United States District Judge for the Western District of
Arkansas. His extensive experience and impressive background
unanimously qualify him for the position of district judge.
Born in Detroit, Michigan, in 1964, Tim is now a
wholehearted Razorback, which is important in our State. He
graduated from the University of Arkansas with an undergraduate
degree in 1986, went on to receive his J.D. from the University
of Arkansas School of Law, where he graduated cum laude, was a
published member and research editor of the Arkansas Law
Review, and a first-place winner in both negotiation and client
counseling competitions.
During law school, Tim became a law clerk with Taylor Law
Partners, located in Fayetteville, Arkansas. Upon graduation,
he was retained by Taylor Law Partners as an associate. Tim
became a partner at the Taylor Law Partners in 1993. While
Taylor Law Partners has a diverse general trial practice, Tim's
specific expertise has been focused on litigation encompassing
workers' compensation claims, personal injury matters, Social
Security disability, domestic relations, criminal defense,
corporate transactional matters, and commercial litigation.
Presently, his scope of work is more narrowly focused on
complex civil litigation with an emphasis on commercial cases
and medical malpractice.
Tim has an extensive courtroom experience involving both
jury and non-jury trials. He has also accrued experience in
alternative dispute resolution and bringing cases before the
Arkansas Workers' Compensation Commission. In addition, since
2011, Tim has served as a member of the Arkansas Supreme Court
Committee on Model Jury Instructions-Civil. The committee is
tasked with the responsibility to review and analyze recently
released appellate court decisions, statutes, and other legal
authority to create or revise model jury instructions to
accurately reflect the current state of Arkansas law.
An active member of his community, Tim is a volunteer
lawyer for Ozark Legal Services and Arkansas Legal Aid, has
served as counsel to the Junior League of Northwest Arkansas,
and has taken a number of cases on a pro bono basis in order to
assist those less fortunate with their legal battles.
In addition, he and his wife, Mary Beth, are well-respected
members of the legal and business communities in and around
northwest Arkansas, as well as members of the Century United
Methodist Church in Fayetteville, the Public Education
Foundation, Northwest Arkansas Community Foundation, and the
United Way.
In the multitude of support letters on his behalf, I have
read of Tim's trustworthiness, commitment to the legal
profession, and dedication to his clients. He is a well-
experienced and highly knowledgeable attorney whose reputation
is untarnished. There is no hesitation or lack of confidence to
be found amongst his peers and clients.
One of the most important things that we do in the Senate
is the confirmation of judges, the process of selecting people
with the right temperament and qualifications. I believe Tim
Brooks will do an excellent job and that we will be proud of
his future service on the bench. I congratulate him on his
nomination and strongly support his confirmation.
Thank you.
Senator Whitehouse. Thank you very much, Senator Boozman.
It is now my pleasure to recognize the Senator's colleague,
Senator Mark Pryor, whose very distinguished service as the
Attorney General of his home State makes his remarks here
particularly welcome and weighty. We former Attorney Generals
have to say that about each other.
Senator Pryor. Exactly.
[Laughter.]
Senator Whitehouse. But in the case of Senator Pryor, it is
actually true. Senator Pryor, please.
PRESENTATION OF TIMOTHY L. BROOKS, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF ARKANSAS, BY HON. MARK L. PRYOR, A
U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Pryor. Thank you, and I appreciate all of you all
for being here today and all the Members of the Judiciary
Committee.
I am here to introduce Timothy L. Brooks of Fayetteville,
and I also want to pay special tribute and thanks to his family
and friends who came to DC today.
I also want to thank Senator Boozman. He and I partnered on
this, and I think he would agree that we have a lot of very
qualified people, but very quickly you saw the legal and
business community and this community at large rally around Tim
Brooks because he just brings so much to the table.
I was certainly proud to nominate him, and I am honored to
share his qualifications or at least some of his qualifications
with the Committee today.
When I look at judges and think about who ought to be a
federal judge, I think of three things: First, is that person
qualified? Second, do they have the proper judicial
temperament? And, third, do they have the ability to be fair
and impartial? And not only does Tim pass these three, he
exceeds all three in many different ways. And, again, I have
heard from around the business and legal community in his home
parts of Arkansas, and they will tell you that he passes all
three with flying colors.
He is a partner at the Taylor Law Partners there in
Fayetteville, which is a well-established firm. He has been
there for 24 years. He became a partner in 1993.
One of the things that I like about Tim is that he does not
have one area of practice and that is it. He does a lot of
different things. And he does some plaintiffs' work; he does
some defense work. He does a lot of complicated legal
representation. He is oftentimes in federal court, but he has
also been in State court quite a bit. So just that experience
in the courtroom with clients, trying to work through very
complicated legal issues, really will make him an outstanding
federal judge.
He did get two degrees, his undergraduate degree and his
law degree, from the University of Arkansas. Go, Hogs, right?
And also he was on the Arkansas Law Review. And, you know, it
is not just the fact that he has excelled in the courtroom,
which he has, but also he is rated as AV Preeminent by the
Martindale-Hubbell Peer Review Service. Again, peer review. His
colleagues think a lot of him. And the other thing that he has
done--and Senator Whitehouse can relate to this, I am sure--is
that in our State we have a committee that the State Supreme
Court appoints to periodically update the Model Jury
Instructions, and he is on the Model Jury Instruction
Committee-Civil in Arkansas. And believe it or not, that is
like being on law review, and that takes a lot of work, because
they have these monthly meetings, and they are constantly
looking at the decisions that the various Arkansas courts have
made.
So he is obviously a member of the Arkansas, the American,
and the Washington County Bar, and he also--and Senator Boozman
said this a few moments ago--does a lot of pro bono work, but
that also includes a pretty large number of representing
indigent clients, which is important to the legal profession.
I remember at one point I was talking to Tim about what a
federal judge should be, and he said, ``All parties, regardless
of their socioeconomic position, seek the same thing: that
justice be done to their cause in a fair and impartial
manner.'' I think that is exactly the attitude we want to see
in our federal judiciary, and we have a vacancy here in the
Western District of Arkansas, and Tim Brooks is certainly an
asset and will be an asset to the federal judiciary in Arkansas
and around the country, and I wholeheartedly support his
nomination.
So, again, I want to thank the Committee for having me
today. Thank you very much.
Senator Whitehouse. Thank you, Senator Pryor. It is welcome
to this Committee to see you and Senator Boozman side by side
supporting this nominee, and I hope that augurs for a swift and
uneventful confirmation. Thank you both very much for being
here. I know you have pressing business, and you are excused.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The manner in which we will proceed now
is for myself and the distinguished Ranking Member Senator
Grassley to make opening statements. Judge Wilkins will be our
first panel of one, and he is welcome to take his seat at the
witness table, and we will recognize him very shortly. And at
the conclusion of Judge Wilkins' remarks, we will have five-
minute round for any questions that the Members present may
care to ask.
Then we will call up the second panel of nominees, the
nominees to the district courts, and once again have five-
minute rounds of questions for all the Members who are here.
We gather in a serious way for these hearings because
voting to confirm an individual to the federal bench is one of
the most important and lasting decisions that a Senator can
make. Every day we see federal judges make decisions that
affect the lives of Americans in all walks of life in many
important respects.
As they have that effect in the lives of ordinary
Americans, it is very important that judges respect the role of
Congress as the duly elected representatives of the American
people; that they decide cases based on the law and the facts;
that they not prejudge any case but listen to every party that
comes before them; that they respect the precedent that comes
from higher courts; and that they limit themselves to the
issues that the court properly must decide. I hope that each
judicial nominee who we hear from today understands the
importance of those principles.
Judicial nominees also must have the requisite legal skill
and reputation to serve as a federal judge. Each of today's
nominees has a very impressive record of achievement. As a
result, I believe and hope that each nominee will receive
prompt consideration. We certainly need good judges for our
system of justice to function, and I think it is fair to say
that around the world people look to America's system of
justice as a model to be aspired to. So it is important for us
to promptly confirm qualified members to these important
positions.
[The prepared statement of Senator Whitehouse appears as a
submission for the record.]
Senator Whitehouse. And, with that, I will turn to my very
distinguished Ranking Member, Senator Grassley of Iowa.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. I join you, Mr. Chairman, in welcoming
our nominees who are here today with their families and
friends. It is a milestone in each of the nominees' careers and
a proud moment for their family and friends.
Today, of course, is also a somber anniversary of our
Nation's history as we remember the tragic events of 9/11 and
the lives that were lost. It also reminds us of the importance
of the rule of law and the liberty we enjoy.
Today's hearing is the 12th judicial nominations hearing
this year, during which we will have considered a total of 38
judicial nominees. That is a pretty remarkable pace. It is
especially quick when compared to the pace of the first year of
President Bush's second term. At this stage in that term, the
Committee had only three hearings and five nominees. In fact,
for the entire year of 2005, the Judiciary Committee held only
seven hearings for a grand total of 18 judicial nominees. And
so compare that to the 12 hearings and 38 nominees this year.
Judge Wilkins, you are currently serving on the U.S.
District Court for the District of Columbia, and I thought
maybe we would have the usual debate about the statistics of
the district court. And since you did not bring that up, I am
going to put my statement in the record, but I would like to
make the audience----
Senator Whitehouse. And I will put mine in, too.
[Laughter.]
Senator Grassley. But I would like to make Judge Wilkins
aware of the fact that we have this debate going on between the
two political parties of whether or not we need the additional
judges beyond the eight that are already there, and I have all
sorts of statistics, and he will have countering statistics. I
will put those in the record. I would appreciate your reading
them, and anybody else that is interested, and just so you know
that this is a debate that is beyond you as an individual,
although it could impact you, whoever wins that debate.
But the way I see it, my case that I make in my remarks I
am putting in the record is that we have the lowest caseload of
any of the districts and we do not need more judges. But we
will leave that for another day.
Senator Whitehouse. Very good, and the Ranking Member's
full statement in that regard will, of course, be made a part
of the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Whitehouse. Judge Wilkins, if I could ask you to
stand and be sworn, please. Do you affirm that the testimony
you are about to give before this Committee will be the truth,
the whole truth, and nothing but the truth, so help you God?
Judge Wilkins. I do, sir.
Senator Whitehouse. Thank you. Please be seated. And I
understand that you have family with you who you might wish to
recognize, and let me allow you that opportunity. Please
proceed. And let me add my personal welcome to them as well.
STATEMENT OF ROBERT LEON WILKINS, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Judge Wilkins. Thank you, Senator Whitehouse. Yes, I do
have my family here. All the way to my far left is my mother,
Joyce Wilkins, who is here from Muncie, Indiana; and next to
her is my dear wife of 18 years, Amy ``Amina'' Wilkins; and my
two sons here behind me and to my right, Alim Wesley Wilkins
and Bakari James Wilkins.
I would like to thank you, Senator Whitehouse and Senator
Grassley, Ranking Member, for scheduling this hearing and
holding it today. I know that you are busy all the time, but
with world events, and particularly the fact that today is
September 11th, this was an imposition on your schedules, and I
appreciate you taking the time for me.
I would also like to thank Senator Feinstein, who was here
earlier, and would like to thank, of course, Senator Franken
and Senator Lee also for being here.
I have several guests here, and I will not call them all by
name, but I have current colleagues who are here and some
former colleagues and friends from many chapters of my life,
and I thank all of them for being here today to support me and
for, of course, all their support over the years.
I also have members of my staff here, and as I am sure you
well know, I could not perform my duties without my staff, and
I have a very--I had the pleasure and honor of having some very
talented and loyal and hard-working staff over the years. And
so my former and current law clerks are here as well as my
current courtroom deputy.
So, with that, I would just like to again thank you for the
opportunity to be here, and I am happy to answer your
questions.
[The biographical information of Judge Wilkins follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Whitehouse. Thank you very much, Judge Wilkins.
Before we proceed to the questioning--and as the Chairman,
I am going to be here through the entire hearing, so I will
reserve my questioning until the end and allow other Senators
the opportunity to ask their questions, and then proceed to
other business if they need to. So in a moment, Senator
Grassley will begin the questioning, followed by Senator
Franken, followed by Senator Lee, and such others as may join
thereafter.
But before we get to that, I want to ask unanimous consent
to put into the record letters of support of your nomination
from the National Organizations of Black Law Enforcement
Executives; from the National Bar Association; from a large
group described as an ad hoc group of African American Am Law
100 Managing Partners, and Fortune 1000 General Counsel Leaders
of the National Bar in that sense; from the National Women's
Law Center; from the Leadership Conference on Civil and Human
Rights; and other letters as well. Without objection, they will
be made part of the record.
[The letters appear as submissions for the record.]
Senator Whitehouse. I will turn now to the Ranking Member.
Senator Grassley. Judge Wilkins, I would like to get a
sense of your judicial philosophy, so I am going to read to you
a few assertions regarding constitutional law. I would like to
get your reaction to them. These are not your assertions, but
as I assess your judicial philosophy, I would like to hear how
you respond, whether you agree or disagree, and why or why not.
And I would have one, two, three, four, five of these that I
would read, and then I would like to have relatively short
answers so I can get to some other questions.
``Reproductive rights should be doubly constitutionally
protected by overlapping liberty and equality guarantees.''
Judge Wilkins. I am not sure of the context for the quote,
Senator, but my understanding of the--I have not held--I am
sorry. I have not handled a reproductive rights case, I think,
in the two and a half years I have been on the bench. But my
understanding of the law in that area is that the reproductive
rights are founded upon the rights to privacy in the
Constitution. And, of course, I would follow whatever the
Supreme Court precedent is in that regard.
Senator Grassley. Okay. The second one is: ``Reproductive
rights, including the rights of contraception and abortion,
play a central role in freeing women from historically routine
conscription into maternity.''
Judge Wilkins. Again, I do not know the context of that
quote, sir, but I would follow Supreme Court precedent in this
area, as I have all other precedent when I handle cases.
Senator Grassley. Okay. The third one: ``Reproductive
rights really are fundamentally about sex equality.''
Judge Wilkins. Again, I am not familiar with that
statement, so it is hard for me to react to it, sir. But--so I
really do not know what else to say about it.
Senator Grassley. Okay. I am not going to go to the other
two. I might submit them for response in writing.
[The information referred to appears as a submission for
the record.]
Senator Grassley. My second question: What is your
understanding of the constitutionality of States to provide
``conscience rights'' to pharmacists and health care providers
who refuse to facilitate abortions or fill prescriptions for
contraceptives if they are personally opposed to such
practices?
Judge Wilkins. This is not an area that I am really
familiar with or where I have handled any litigation.
Senator Grassley. Why don't you respond to that in writing
then?
Judge Wilkins. Yes, I will do that.
[The information referred to appears as a submission for
the record.]
Senator Grassley. Three, why do you want to be an appellate
judge? I would like to have you describe your interest in
transitioning from trial work to appellate work, and how would
you prepare yourself for that transition, if confirmed?
Judge Wilkins. Well, I am not considering this because I am
unhappy in my current job, so I will tell you that much. I
enjoy being a trial court judge, and I have really loved it for
the last two and a half years. But I have had the privilege to
serve on some three-judge panel cases where I have worked with
colleagues, including colleagues on the court of appeals, and
so I have experienced the collaborative decision making that
that entails, and I have enjoyed that. And so I was intrigued
by the prospect and interested in the prospect of serving
further in that context on the court of appeals.
Senator Grassley. Okay. As a federal public defender, you
once said you were someone who was pretty good at ``begging for
mercy.'' As a federal judge, how have you responded to defense
counsel who beg for mercy for their clients?
Judge Wilkins. Well, as an advocate, that was my job, was
to zealously advocate for my clients, and oftentimes as a
public defender that meant I was begging for mercy.
As a judge, of course, I am duty-bound to follow the law
and to consider the arguments made by both sides. And in the
criminal law context at sentencings, I certainly do that,
consider the arguments of both sides. And sometimes I guess I
have ruled in favor of the prosecution, and sometimes I have
ruled more in favor of the defense, and sometimes I have ruled
in between. But I try to give even consideration to all sides.
Senator Grassley. Could I ask one more question?
Senator Whitehouse. Of course, please.
Senator Grassley. You have said that you admire attorneys
who remember the ``humanity of the client.'' You have also
stated that it is important to ``understand the persons being
punished.'' It sounds a little bit like empathy standards that
sometimes we debate are they right or wrong for a judge to
have. So I would like to have you explain your views on the
role that empathy should have in the judicial process.
Judge Wilkins. Thank you, Senator. I guess my view is that
judges should understand all aspects of the issues that are
before them, so they should understand the intent and context
of Congress in passing whatever the law is that might be at
issue, the intent and context of the Framers with the
constitutional provision that may be at issue, and, of course,
the intent and understanding of the parties when they were
engaging in whatever the activities were that led to the
dispute.
And so in that context, I think that empathy means having
an understanding or trying to endeavor to understand all sides
of the dispute and all perspectives that are relevant to the
disputes.
Senator Grassley. This is my last question. In one talk,
you said that you question how much progress the United States
has made in the fight against racial discrimination and whether
the courts are fully equipped to right those wrongs. So my
question is: What is the court's role in a general sense in
righting societal wrongs?
Judge Wilkins. Well, the courts, of course, first and
foremost must follow precedent in fashioning any remedies that
they do to--in that case I think I was talking about a
constitutional--or a practice that was alleged to be
unconstitutional and probably in the context of racial
profiling, I think, were those remarks. And I think that the
purpose of the court is to fashion remedies that courts can and
should fashion, and other times remedies should be sought in
the political process or in other processes outside of the
courts, and the courts do not need to get involved in that.
Senator Grassley. Thank you, Mr. Chairman. Thank you, Judge
Wilkins.
Judge Wilkins. Thank you, Senator.
Senator Whitehouse. Thank you very much, Senator Grassley.
I will turn now to Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Judge Wilkins, congratulations on your nomination. It is
good to see you again.
Judge Wilkins. Thank you, Senator. I believe you were--I
was honored to have your presence at my last confirmation
hearing.
Senator Franken. Thank you. That is very kind.
When you appeared before the Committee in 2010, I thanked
you for your service on the DC Public Defender Service and the
DC Access to Justice Commission, and I asked you what would you
do as a federal judge to continue to promote access to justice.
And I appreciated your answer. This is what you said: ``I think
that as a judge on the U.S. district court, you have to be
mindful of your obligation to make sure that justice is blind
and that justice is equal, and that a person who perhaps does
not have all the resources is not affected unfairly on the
merits because of that.''
Now that you have had a couple of years on the bench, I am
interested in your current thoughts on access to justice
generally and to the judge's role in promoting that access.
Judge Wilkins. Thank you, Senator Franken. I currently
serve as the--our circuit Judicial Council has a pro bono
committee that works on these issues, and there is a judge that
is not a member of the committee but serves as a liaison
between the committee and the court as that committee does
their work on access to justice issues. And I was honored to be
appointed to serve as the judicial liaison to that committee,
and that committee has been very active in trying to encourage
the members of the private bar to get more involved in pro bono
cases and assisting the court when the court needs lawyers to
take appointments to cases that have some potential merit but
no one to represent them, either on the plaintiff side or the
defense side. And so I have tried to work on that issue in that
context.
Senator Franken. Judge Wilkins, we have some real problems
with our criminal justice system. At alarming rates, we are
imprisoning nonviolent people who suffer from addiction or
mental illness. This country has five percent of the world's
population, but we have about a quarter of the inmates in the
world. I have heard from sheriffs in my State who say that a
high proportion of inmates under their supervision should be in
treatment programs and not in prison or in their jails. Mass
incarceration has a huge financial cost, a huge moral cost, and
public safety cost.
You were a public defender for 10 years. You have been a
federal judge for a couple of years now. I know that you care
deeply about this issue. Can you share your thoughts on it? And
based on your experience, do you have any insights or advice
you can give us as law makers to improve the criminal justice
system?
Judge Wilkins. Well, thank you, Senator. Of course, in my
former life as an advocate, my former agency, the Public
Defender Service, while I was there, spoke out a lot about this
issue from the perspective of an advocate and from the
perspective of an agency that represented clients within the
system. And, of course, now that I am a judge, I leave the
policy to the elected representatives and the citizens and just
try to interpret and uphold the law.
I guess if I had any advice it would be that there is a lot
of data, I guess, that the U.S. Sentencing Commission and
others have gathered about the criminal justice practices, and
I have found that a lot of times that data does not get
adequate consideration and, you know, reports are written and
they sit on shelves and gather dust, and that we could all
benefit and all benefit from examining where we have been in
the data to know where best we should go.
Senator Franken. Thank you, Judge Wilkins, and
congratulations to you and your family.
Judge Wilkins. Thank you so much.
Senator Franken. And welcome to the family. Thank you.
Judge Wilkins. Thank you, Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Senator Whitehouse. Senator Lee is recognized.
Senator Lee. Thank you, Mr. Chairman. I have a statement
that I would like to submit for the record regarding some of
the----
Senator Whitehouse. Without objection.
Senator Lee [continuing]. DC Circuit. Thank you.
[The prepared statement of Senator Lee appears as a
submission for the record.]
Senator Lee. Thank you, Judge Wilkins, for joining us
today. I am glad that your family is here with us. I especially
appreciate the fact that your sons are here, and they even
appear to be quite interested in the proceedings of the
Committee.
[Laughter.]
Senator Lee. Your judicial service thus far has prepared
them for long hearings, and apparently they have sat through
some of your judicial proceedings, I am imagining.
Judge Wilkins. They are very patient.
Senator Lee. Yes, they seem to know exactly what is going
on here, too. That is fantastic.
I would like to talk a little bit more about your judicial
philosophy. Starting out, tell me if you have--do you have any
U.S. Supreme Court Justice that has served over the last
century or so who you would identify as best reflecting your
judicial philosophy?
Judge Wilkins. I do not think that I really--that there is
a Justice that I believe has the same philosophy as me. My
philosophy generally has been over the last two and a half
years to try to really focus on the case in front of me and
nothing more, to be mindful of the importance of judicial
restraint, decide the issue that needs to be decided, do not
reach out and try to decide other issues; and, of course, not
to bring any preconceived notions to my decision making and let
the facts and the law lead wherever they lead and the case be
decided on its merits and that is it.
Senator Lee. As you decide each case, do you have in mind a
particular approach that you take toward interpreting a
statute? For example, would you describe yourself as a
textualist, an intentionalist, a purposivist, as any other kind
of ``-ist'' ?
Judge Wilkins. I think that perhaps it is because of the
way that I am wired and because of my background as a chemical
engineering major undergrad, I like rules, and so I try to look
very closely at text and adhere to the text and adhere--and try
to find whatever the governing principle is that applies to the
particular context or interpreting that text or deciding that
issue and find that and apply that rule or that text strictly.
Senator Lee. When the text appears to conflict with what
you believe the legislative body had in mind, how does that
factor in? What do you do to resolve that?
Judge Wilkins. Well, that is an important question. It is
also a difficult situation because, of course, probably the
best evidence of what the legislature intended is what they
wrote in the statute and what was passed. And if that statute
is--the meaning of that text is clear and plain and
unambiguous, I am duty-bound to apply it as written. Even if I
think that perhaps Congress may have intended something
slightly different, that is not the way that I understand my
job is to--my job is not to overrule the plain meaning of text.
Senator Lee. In light of that, where and in what way does
legislative history play a part in your interpretation of the
statute?
Judge Wilkins. If the meaning of the text is clear, then
the precedent from the Supreme Court and our circuit is that
that should end the matter, because I apply the plain meaning
of the text. But if that meaning is ambiguous, then I would, of
course, also look to the legislative history and other aids, to
statutory construction to try to interpret the meaning of those
words in the text.
Senator Lee. Once you get into that inquiry, in your
opinion is all legislative history equal? Or are there some
kinds of legislative history--some legislative history data
points that are more reliable or less reliable than others?
Judge Wilkins. Well, I think courts believe--or courts have
stated that some legislative history is a little bit more
persuasive than others; if something is in a committee report
or a conference committee report, that that might be more
persuasive than just a floor statement of a single Senator or
House Member, depending upon the context of that statement. But
I think you have a duty to look at all of it and then try to
determine what it means.
Senator Lee. And then, last, I think I heard you mention
that you had brought your law clerks with you today. What would
they say about you?
Judge Wilkins. That is a tough one. I think they would
say----
[Laughter.]
Judge Wilkins. I think they would say that I am tough but
fair.
Senator Lee. Thank you, sir, and thank you, Mr. Chairman.
Senator Whitehouse. We certainly got a little burst of
smiles in the back of the room when Senator Lee asked that
question. I assume those identify your former clerks.
Judge Wilkins. I hope you did not subpoena them.
[Laughter.]
Senator Whitehouse. I do not think that will be necessary.
So how on Earth do you get from chemical engineering to law
school?
Judge Wilkins. Well, I initially went to college thinking
that I wanted no part of graduate school, that four years more
would be enough after high school, and so I was very interested
in science and math at that time, and chemistry, and so I
focused on chemical engineering. But as I went through that--
matriculated through college, I became more interested in law,
in public policy issues, and so I made the transition to law
school.
Senator Whitehouse. Judge Wilkins, during my opening
statement, I mentioned a number of principles that I identified
as ones that I feel judges should comport themselves with. One
is to respect the role of Congress as the duly elected
representatives of the American people. Another is to decide
cases based on the law and the facts without prejudging any
case after listening carefully to every party that comes before
the court. A third is to respect precedent from the higher
courts. And the fourth is for judges to limit themselves to the
issues that the court must decide.
Are those principles that you agree with and are
comfortable with?
Judge Wilkins. Yes, Senator Whitehouse. I think that is an
excellent set of guideposts for all judges to follow, and I
certainly follow those guideposts.
Senator Whitehouse. I appreciate that you have come out of
both active practice and trial court experience, and I would
like to have a brief conversation with you about the jury as an
institution. As we all know, the jury appears three separate
times in the Constitution and Bill of Rights. In the
Revolutionary War, the protection of the civil jury from
British encroachment was one of the clarion calls to battle and
one of the reasons that we fought for our independence. The
original Constitution prior to the Bill of Rights banged into
the ire of the American people that the civil jury was not
adequately protected with the result that the Seventh Amendment
was added specifically protecting the civil jury. And it has
really, I think, quite a noble and significant constitutional
history and an important part in our system of government, not
just as a fact-finding appendage to a court but as actually a
part of the broader American system of government.
Alexis de Tocqueville wrote that the jury is, before
everything, a political institution, one ought to consider it
as a mode of the sovereignty of the people. And a century or
more before that, Blackstone explained one reason why the jury
is so important. He wrote that, ``[T]he most powerful
individual in the state will be cautious of committing any
flagrant invasion of another's right, when he knows that the
fact of his oppression must be examined and decided by 12
indifferent men . . . ''
Now, those last two words need a little bit of editing now.
``Indifferent'' had a different meaning then than it does now.
It simply meant impartial. And obviously men and women now
serve on juries. But with those adjustments, I think that that
description of the role of the jury stands true.
He also had, I think, a wise political sense that the
executive and legislative branches can be sometimes brought
under the sway of powerful interests in a way that is
antithetical to the public interest. And in that respect, the
jury of ordinary men and women provides sort of a final
backstop when things go wrong, when the Governor is in your
enemy's pocket, when the legislature is controlled by the
lobbyist, when the press have quipped up public sentiment
against you, the courtroom and the jury are supposed to be
immune from that, and as Blackstone said, to prevent ``the
encroachments of the more powerful and wealthy citizens.''
So I detect a strain in certain current judicial
philosophies of trying to deny, minimize, inhibit, cripple the
jury system. And I think that it has a lot to do with that role
as an institution that prevents the encroachments of the more
powerful and wealthy citizens. More powerful and wealthy
citizens do not always appreciate having their encroachments
prevented. And so we have, I think, a bit of a struggle over
the role of the jury in this country right now, and I would
like to hear your comments on that and whether you see
particularly the civil jury as more than just a fact-finding
appendage to the court.
Judge Wilkins. Thank you, Senator Whitehouse. I just
completed a jury trial this past Thursday, and the jury reached
a verdict, and I told the jurors, as I tell all the jurors in
all of my cases, how important it is what they are doing, that
they are literally implementing the Seventh Amendment to the
Constitution, of our Bill of Rights to the Constitution, with
their service, to try to help them understand the grave
importance of what they do when they sit as jurors. And so I
understand and appreciate your remarks, and as an advocate, I
was a strong proponent of the jury system, and as a judge, I
have seen nothing to change my views of the jury system. I
think the jurors take their obligations very seriously. They
are very diligent in trying to understand the evidence and
follow the law and reach the correct result based on the
evidence and the law. And I have been very impressed with all
of the jurors and all of the juries that I have observed as a
judge.
Senator Whitehouse. I urge you to keep that good feeling
about juries in mind as, I hope, you proceed to this next
judicial office. It is clearly inconvenient to certain powerful
interests who think they have got the executive branch of
government under control and who think their lobbyists have got
the legislative branch of government all tied up and who think
that they have kind of got the system fixed for their benefit,
to suddenly face 12 good men and women true, and have them
disrupt what the big interests had been able to achieve in the
other branches.
But I do think that that disruption, however inconvenient
to powerful interests, by a civil jury is a part and an
important part of what the Founding Fathers had in mind when
they built the system of divided powers, in some cases even
conflicting powers, that is occasionally a source of
frustration to us, but I think in the long sweep of history a
source of pride not only to our country but also a lesson to
our world.
So I wish you well in your process forward. I thank you for
bringing your family here with us today, and I hope that we can
have a quick vote on your confirmation. Thank you very much,
and thank you for your service on the district court.
Judge Wilkins. Thank you, Senator, and I appreciate again
the Committee's time and consideration. And it is an honor for
me to have been nominated, of course, by the President, and it
is an honor for me to appear before this body for your
consideration. Thank you.
Senator Whitehouse. Thank you, Judge Wilkins. You are
excused, and we will call up the next panel.
[Pause.]
Senator Whitehouse. Let me call this hearing back to order.
If I could ask the nominees to remain standing, we can proceed
with the oath. If you would 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?
Mr. Brooks. I do.
Mr. Donato. I do.
Judge Freeman. I do.
Judge Delgado. I do.
Senator Whitehouse. Thank you. Please be seated.
Today is a somewhat unusual day in that it is the 12th
anniversary of the attacks on our country on September 11th,
and the service of remembrance and commemoration here in the
Senate is taking place now, and that is why Senator Grassley
has had to excuse himself. And he wanted me to pass on to you
that it indicates no disrespect for you or for the important
positions for which you are nominees, and I perfectly
understand that many of my colleagues are there right now. My
duty requires me to be here in this hearing; otherwise, I would
be as well. But it is not for lack of interest in you or
judicial nominations that there are some empty seats here. It
is for a very important reason.
Let me welcome each of you, and why don't we begin right
across the line here, starting with Mr. Donato. Let me invite
you to give whatever opening statement you would like to make
and whatever recognitions you would like to offer of family and
friends who are present at this point.
Mr. Donato, please proceed.
STATEMENT OF JAMES DONATO, NOMINEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF CALIFORNIA
Mr. Donato. Thank you, Mr. Chairman. Let me begin by
thanking you and the other Members of the Committee for having
us in on this somber day.
I also want to acknowledge with gratitude the nomination of
the President in sending my name to the Committee for
consideration for the district court. I am deeply honored by
that.
I am very appreciative for the gracious remarks that
Senator Feinstein made earlier today and for recommending me to
the White House for consideration for the Northern District of
California.
I do have a number of guests that I would like to
acknowledge, starting with my wife, Rhonda, and my daughter,
Isabella, who are behind me. Rhonda and I met many years ago
when we were legal assistants before going to law school. We
went to law school at about the same time, served on the Ninth
Circuit at about the same time, and today she is a staff
attorney at the Northern California Innocence Project, working
on those cases. Sometimes you will hear the advice that lawyers
should not marry other lawyers. That advice is wrong. You
should reject it. It is one of the best things you can do.
Also with me is our youngest child, Isabella, a freshman at
Berkeley High and a recent powerhouse addition to the Berkeley
High volleyball team, where she is a cool and efficient libero,
for those of you who are volleyball aficionados.
Our two sons--Nate, who is a junior at the University of
California, majoring in Japanese, and our middle son, Vince, a
junior at Berkeley High--had pressing academic commitments and
could not be here today.
I am happy to welcome a number of friends and family
joining virtually in true Silicon Valley fashion to the
Webcast. That includes my parents, Alice and Tony, who are in
their 80s. They live in Northern California. Both of them spent
their careers in public service. My father was a local city
administrator for his career, my mother a public school
teacher. Their example and their ideals are a big part of why I
am here today.
I would also like to welcome my sister, Valerie, and my
younger sister, Antonia, and their families. I am happy to say
I have a number of friends who are showing their support by
watching today, ranging from Australia to California to the
East Coast, including my good friend and old trial partner,
Mike Klisch, who is sitting behind me and is a local resident.
And I will end by acknowledging my friends, partners, and
colleagues at Shearman & Sterling. I understand that the
proceedings today are being broadcast throughout the firm's
offices in the United States and in London, and I am thrilled
to be a member of the Shearman family. It has been a great
privilege practicing at the firm, and I welcome them today as
well.
[The biographical information of Mr. Donato follows:]
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Senator Whitehouse. Thank you, Mr. Donato. I appreciate
that very much.
Mr. Brooks.
STATEMENT OF TIMOTHY L. BROOKS, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF ARKANSAS
Mr. Brooks. Thank you, Senator Whitehouse. I certainly
appreciate your role in chairing this Committee hearing. I also
very much appreciate Senator Leahy and Senator Grassley for
arranging and scheduling this hearing on our nominations.
I especially want to thank Senator Pryor for recommending
me to the White House. I really appreciate the trust and
confidence that he has placed in me for this role. And I also
want to thank Senator Boozman for his support. We have two very
good Senators in our State of Arkansas, and they always put the
interests of Arkansas above all else, and I appreciate their
collegiality and their both supporting my nomination.
Of course, I would also like to thank the President for
giving me the honor of the nomination.
I would like to introduce some family members that are here
with me today, first and foremost, my wife, Mary Beth. Anyone
who has been a trial lawyer knows that it is not easy being a
trial lawyer's spouse. There is a lot of extra duties that fall
upon them when you are in the middle of a long jury trial, and
Mary Beth has certainly been my rock.
I also have my 11-year-old son, Sam, somewhere in the
courtroom, and he is apparently on his best behavior today. I
have not heard a peep out of him, which is somewhat unusual.
But this has been a great experience for him.
We have two daughters, one of whom is a junior in college
in New York and was not able to be with us today. I also have
another daughter who is starting her first year as a science
teacher at a junior high back home in Bentonville, and she
could not be with us either.
I am very pleased that our good friends, Shawn and Julie
Walker, made the trip from Arkansas. They are very good
friends, and it means a lot to have them here.
My parents passed away a few years ago, and I know that
they are here in spirit, and they would be very proud. But I am
pleased very much to have my in-laws here, Mary Beth's parents,
Brad and Mary Ellen Jesson, who just mean so much to me. But I
am especially honored that my father-in-law, Brad, was able to
be here. He is a lawyer, and his very first job out of law
school was to clerk for John Miller, who was the very
distinguished United States District Judge for the Western
District of Arkansas for many, many years and also a former
Member of the Senate. Brad went on to be Chief Justice of the
Arkansas Supreme Court, and so he has been not only an
inspiration to me as my father-in-law, but also an inspiration
to me in my legal career.
Thank you very much, Senator.
[The biographical information of Mr. Brooks follows:]
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Senator Whitehouse. Thank you very much, Mr. Brooks.
Judge Freeman, welcome to the Senate Judiciary Committee.
You are recognized for any statement and recognitions you would
care to make.
STATEMENT OF HON. BETH LABSON FREEMAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA
Judge Freeman. Yes, thank you very much. First I would like
to thank you, Mr. Chairman, and Ranking Member Grassley for
holding this hearing. I am very grateful for the opportunity to
appear before you and to answer your questions.
I would also like to thank you personally for acknowledging
the 9/11 catastrophe and especially those on Flight 93. My
family lost a cousin that day as well, and your honoring his
memory is particularly meaningful today. Thank you.
I would like to thank Senator Feinstein for her kind and
gracious words this morning. I am very grateful to her.
I would like to thank the President for his nomination and
the confidence that he has placed in me up to this point, and I
hope through this process I can live up to that confidence.
I do have friends and family here with me today. I am so
grateful for that. I will only start by saying I wish my father
could be here. He passed away a year ago. My father was a
mechanic for United Airlines at Reagan National Airport long
before it was called that, starting in the 1940s and working
here. I was actually born in Washington, DC, moving to
California as a teenager. And he would not--it would be
unimaginable to him that a child of his was sitting before you
today, and I know he would have great pride in this moment if
he were here.
I am delighted to have family and friends with me. First
and foremost, my husband, Bill Freeman, is here. Bill and I met
in law school. We got married two weeks after I took the bar
exam, and this summer we celebrated our 34th wedding
anniversary.
Senator Whitehouse. Another successful example of lawyers
marrying lawyers.
[Laughter.]
Judge Freeman. Absolutely. Absolutely. And our two children
I do not believe are idiots, as Spencer Tracy suggested in a
movie many years ago. Our daughter, Laura Freeman, works in the
fashion industry in New York City, and with Fashion Week, she
was unable to get away. And our son, Scott, works in the
economics field in Los Angeles and also was unable to be here.
He claimed to get up early this morning on California time and
be plugged into this hearing, and I hope he is listening to
this at this moment. If not, there will be words.
[Laughter.]
Judge Freeman. I am also delighted that my brother-in-law,
David Freeman, is here. David is a practicing attorney in New
York City. And my brother, Dr. Victor Labson, is here, who is
the Director of International Programs at the United States
Geological Survey here in Reston, Virginia.
My brother's two children--my niece, Eva Labson, and my
nephew, Daniel Labson--are both here today. What they do not
know is they will become my children after this hearing, and my
children will become my brother's based on their attendance
today.
And, finally, I would like to thank high school friends of
mine who are here with me today. They do live here in
Washington, DC, but these friendships are long and dear to me,
and I am grateful to them and would like to introduce Tom
Rosenstiel; his wife, Rima Sirota; and Mike McCurry. I am very
grateful for their love and support as well.
Mr. Chairman, thank you for the opportunity to be here. It
is a great honor for me.
[The biographical information of Judge Freeman follows:]
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Senator Whitehouse. Thank you, Judge Freeman. It is our
honor to have you here.
And, finally, Mr. Delgado Hernandez, welcome, and you are
recognized for any statement and recognitions you would care to
make.
STATEMENT OF HON. PEDRO A. DELGADO HERNANDEZ, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO
Judge Delgado. Thank you, Mr. Chairman. I would like to
thank the Committee for conducting this hearing here today,
Congressman Pierluisi for his kind words and for recommending
me to the President, President Obama for having nominated me to
the federal bench in the United States District Court for the
District of Puerto Rico. I have been humbled, Mr. Chairman, and
continue to be deeply humbled by this extraordinary honor.
I would also like to thank my family and friends for their
continuing support in this process. My brother, Steven, is
here. If he may stand up and be recognized, that would be
great.
It is a privilege, Mr. Chairman, to be here, and I will be
delighted to respond to any questions the Committee may have.
[The biographical information of Judge Delgado follows:]
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Senator Whitehouse. Thank you very much. Well, you are all
very welcome here, and I salute you for being willing to put
yourself through the wringer of the nomination and confirmation
process. I know it is not easy. It is arduous and exhausting
and intrusive. But most of it is over at this point. And do not
worry if there is not a great deal of attendance here. That is
usually actually a good sign.
[Laughter.]
Senator Whitehouse. You worry when the seats are filled
with questioning Senators. That does not augur well for the
nomination. So I hope that yours will go forward smoothly.
I gave you a bit of a preview of coming attractions since
you were in the room during my questioning of Judge Wilkins.
But I have the same questions for each of you.
I have now mentioned twice, but I will review just again,
what I think are the sort of core principles of judicial
conduct that I hope you can agree should also guide your
actions, and that involves, first of all, an earnest respect
for the role that Congress has as the duly elected
representatives of the people of this great country. It
includes an obligation to decide cases scrupulously based on
the law and the facts without prejudgment of any case and with
an honest ear for every party that comes before you. It
includes respect for the precedent that should guide your
decisions. And it includes the restraint to limit yourself in
your decision to the issues that are properly before your
court.
Are each of you comfortable with those principles as ones
that properly should guide your actions as a United States
district court judge?
Mr. Brooks. Absolutely.
Mr. Donato. Absolutely.
Judge Delgado. Absolutely.
Judge Freeman. Yes.
Senator Whitehouse. The record will reflect four
``absolutelys''--or three ``absolutelys'' and a ``yes.'' All
positive.
And then one of the special roles of a district judge is to
manage and oversee not only judge trials but also jury trials
and to help jurors feel welcome and understand their role in
the process that they have been subjected to. My experience in
talking to juries after trials and in talking to grand juries
that we have convened as a U.S. Attorney and as an Attorney
General is that American citizens take their role as jurors or
grand jurors very seriously, and that whatever burdens it may
put on their time and on their responsibilities and their
personal lives, they ordinarily feel that they have contributed
something in a very important way by serving. Sometimes,
particularly in criminal cases and for grand juries, the
subject matter that they are obliged to consider is pretty
horrific, considering the subjects of their daily lives. But,
nevertheless, even in the face of some of the more horrific
cases, my sense has always been that jurors are glad of that
experience.
So I would like to ask each of you to comment a little bit
on how you see the importance of jurors and how important it is
to reflect that important aspect of citizenship, and also, I
will not go on again at length, but the fact that a jury is not
just there to be a fact-finding appendage to a court. It also
has a very important role in the larger balance of powers and
among the checks and balances that protect this republic that
the founders established all those centuries ago.
Mr. Donato, let me turn to you first.
Mr. Donato. Well, thank you, Mr. Chairman. I have two
comments that come to mind.
The first is, in 23 years of practice, the single most
impressive thing that I have encountered is the service and
dedication of the jurors that I have had the privilege of
practicing before. Now, make no mistake, they did not always
see the case my way. But I will say each and every time we had
the opportunity to try a case and talk with the jurors
afterwards, it was the most impressive level of dedication from
a group of people who, prior to their appearance in the jury
box, generally had absolutely no experience with the legal
system whatsoever, were asked to address in the cases I was
trying very complicated antitrust and federal class action
issues, rose to the challenge, often over weeks and weeks of
trial time, which was a tremendous inconvenience for their
professional and personal lives, and still at the end of it
took that job as seriously as you could ever want someone to
take it and felt very good about the experience.
So I agree wholeheartedly with sentiments that you
expressed earlier that it is not just an exercise in trying
fact. It is, in my view, a badge of citizenship for an
American, a great privilege, and something that our legal
system absolutely depends on.
The second thought is I hear and embrace your concerns
about potential erosion of the jury system. In private
practice, where I am today, I often hear--not often, but I do
periodically hear--lawyers occasionally in intellectual
property cases, for example, and other more specialized cases
expressing frustration with juries. My view is they do not get
it. I think the jury system is absolutely essential for our
federal judiciary, for our State judiciary, for that matter,
and I think we ought to do everything we can to protect it.
Senator Whitehouse. Mr. Brooks.
Mr. Brooks. Thank you, Senator. I think that our Seventh
Amendment right to a trial by jury is one of the bedrock
principles of our judicial system and certainly a component
that separates ours from all other judicial systems across the
world and perhaps the hallmark of what makes our system the
best, in my opinion.
To your point about the significance of the jury and one's
civic responsibility, I was trying a case many years ago when I
had a trial court judge who was welcoming the jury and trying
to impress upon them the significance of what they were there
to do. And she said that there are two times when our State or
our country can call you in to service: one is at a time of war
when you can be drafted to go and serve your country, perhaps
overseas; and a second time is whenever you get summoned for
jury service. And she tried to impress upon them that, in terms
of civic responsibility, both were very, very important. And
certainly that jury, as has been my experience in all of my
trials, that civic responsibility is one that juries somehow
just the chemistry that comes together, they take it very, very
seriously, and it is remarkable every time that it happens.
Senator Whitehouse. Thank you, Mr. Brooks.
Judge Freeman.
Judge Freeman. Yes, thank you, Mr. Chairman. I have had the
good fortune, as Senator Feinstein commented, and the privilege
of presiding over approximately 150 jury trials in my time on
the State court bench. I think I have told each and every one
of those juries--and I believe it wholeheartedly--that they are
the backbone of our system of justice. And the pride that they
should take in the service they render is sometimes
unimaginable to them until they have completed the task. But
from where I have been able to sit as a judge, I know that when
12 people come to the jury and deliberate, having heard a case
with no bias and no agenda, that justice is served. And I look
forward to continuing, if I am fortunate enough to be confirmed
for this seat, to presiding over jury trials for the remainder
of my career.
Thank you.
Senator Whitehouse. Mr. Delgado Hernandez.
Judge Delgado Hernandez. Mr. Chairman, I join my colleagues
in expressing support for the institution of the jury, as you
have so eloquently described it. I might add that federal
judges in the District of Puerto Rico impress upon jurors the
importance of what they are doing or what they are about to do,
not just in terms of jurors, citizens, being part of the
specific decision-making process before them, but their
participation as a reflection of the system of government under
the Constitution. And if I am confirmed by the Senate, Mr.
Chairman, I intend to do exactly the same thing.
Senator Whitehouse. So honor them and treat them well.
Thank you all for being here. The hearing record will
remain open for one more week in order that any additional
material that is relevant to it may be submitted. I believe
that Chairman Grassley and others may have additional written
questions for the nominees, and I urge you to respond promptly
and thoroughly to those questions, because your nomination does
not go forward until the questions are answered. And I wish you
all smooth and uneventful passage through the remainder of the
confirmation process, and I join my colleagues in
congratulating you on the signal honor and recognition that
having been nominated by the President of the United States to
this position already reflects.
With that, we will be adjourned.
[Whereupon, at 11:30 a.m., the Committee was adjourned.]
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