[Senate Hearing 114-699, Part 1]
[From the U.S. Government Publishing Office]
S. Hrg. 114-699, Part 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JANUARY 21, MARCH 11, and MAY 6, 2015
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Serial No. J-114-1
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PART 1
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Printed for the use of the Committee on the Judiciary
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U.S. GOVERNMENT PUBLISHING OFFICE
27-131 PDF WASHINGTON : 2021
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COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont,
JEFF SESSIONS, Alabama Ranking Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
C O N T E N T S
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JANUARY 21, 2015, 2:37 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Coons, Hon. Christopher A., a U.S. Senator from the State of
Delaware....................................................... 3
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
opening statement............................................ 1
introductions of Hon. Alfred H. Bennett, Nominee to be a U.S.
District Judge for the Southern District of Texas; Hon.
George C. Hanks, Jr., Nominee to be a U.S. District Judge
for the Southern District of Texas; and Hon. Jose Rolando
Olvera, Jr., Nominee to be a U.S. District Judge for the
Southern District of Texas................................. 17
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
introducing Hon. Jill N. Parrish, Nominee to be a U.S. District
Judge for the District of Utah................................. 18
Leahy, Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont,
prepared statement........................................... 286
Lee, Hon. Michael S., a U.S. Senator from the State of Utah,
introducing Hon. Jill N. Parrish, Nominee to be a U.S. District
Judge for the District of Utah................................. 19
STATEMENTS OF THE NOMINEES
Witness List..................................................... 33
Bennett, Hon. Alfred H., Nominee to be a U.S. District Judge for
the Southern District of Texas................................. 20
questionnaire and biographical information................... 38
Hanks, Hon. George C., Jr., Nominee to be a U.S. District Judge
for the Southern District of Texas............................. 21
questionnaire and biographical information................... 104
Lee, Michelle K., Nominee to be Under Secretary of Commerce for
Intellectual Property and Director of the U.S. Patent and
Trademark Office............................................... 5
prepared statement........................................... 34
Marti, Daniel Henry, Nominee to be Intellectual Property
Enforcement Coordinator, Executive Office of the President..... 7
prepared statement........................................... 36
Olvera, Hon. Jose Rolando, Jr., Nominee to be a U.S. District
Judge for the Southern District of Texas....................... 22
questionnaire and biographical information................... 170
Parrish, Hon. Jill N., Nominee to be a U.S. District Judge for
the District of Utah........................................... 23
questionnaire and biographical information................... 223
QUESTIONS
Questions submitted to Hon. Alfred H. Bennett by:
Senator Cruz................................................. 288
Senator Grassley............................................. 291
Questions submitted to Hon. George C. Hanks, Jr., by:
Senator Cruz................................................. 288
Senator Grassley............................................. 293
Questions submitted to Michelle K. Lee by:
Senator Graham............................................... 290
Senator Grassley............................................. 295
Senator Hatch................................................ 301
Senator Vitter............................................... 303
Questions submitted to Daniel Henry Marti by:
Senator Grassley............................................. 296
Senator Vitter............................................... 306
Questions submitted to Hon. Jose Rolando Olvera, Jr., by:
Senator Cruz................................................. 288
Senator Grassley............................................. 297
Questions submitted to Hon. Jill N. Parrish by:
Senator Cruz................................................. 288
Senator Grassley............................................. 299
ANSWERS
Responses of Hon. Alfred H. Bennett to questions submitted by:
Senator Cruz................................................. 307
Senator Grassley............................................. 312
Responses of Hon. George C. Hanks, Jr., to questions submitted
by:
Senator Cruz................................................. 317
Senator Grassley............................................. 324
Responses of Michelle K. Lee to questions submitted by:
Senator Graham............................................... 335
Senator Grassley............................................. 329
Senator Hatch................................................ 332
Senator Vitter............................................... 338
Responses of Daniel Henry Marti to questions submitted by:
Senator Grassley............................................. 345
Senator Vitter............................................... 347
Responses of Hon. Jose Rolando Olvera, Jr., to questions
submitted by:
Senator Cruz................................................. 349
Senator Grassley............................................. 354
Responses of Hon. Jill N. Parrish to questions submitted by:
Senator Cruz................................................. 358
Senator Grassley............................................. 365
LETTERS RECEIVED WITH REGARD TO MICHELLE K. LEE
Application Developers Alliance, Washington, DC, December 5, 2014 369
Davies, Susan M., et al., counsel, academics, and executives
representing american innovators, November 14, 2014............ 370
Honda, Hon. Michael M., a Representative in Congress from the
State of California, January 26, 2015.......................... 377
Imada, Bill, Founder and Chairman, IW Group, Los Angeles,
California, and Former Chairman, Asian/Pacific Islander
American Chamber of Commerce and Entrepreneurship (ACE),
Washington, DC, December 1, 2014............................... 379
International Trademark Association (INTA), New York, New York,
November 5, 2014............................................... 381
National Asian Pacific American Bar Association (NAPABA),
Washington, DC, December 1, 2014............................... 382
Samuels, Julie P., Executive Director, Engine, Washington, DC,
and San Francisco, California, October 28, 2014................ 386
Takayasu, Sach, President and Chief Executive Officer, Asian/
Pacific Islander American Chamber of Commerce and
Entrepreneurship (ACE), Washington, DC, December 1, 2014....... 387
LETTERS RECEIVED WITH REGARD TO DANIEL HENRY MARTI
American Intellectual Property Law Association (AIPLA),
Arlington, Virginia, November 10, 2014......................... 389
Copyright Alliance, Washington, DC, November 14, 2014............ 390
CreativeFuture, Los Angeles, California, November 20, 2014....... 392
Entertainment Software Association (ESA), Washington, DC,
December 9, 2014............................................... 393
Hispanic Bar Association of the District of Columbia (HBA-DC),
Washington, DC, November 10, 2014.............................. 394
International AntiCounterfeiting Coalition (IACC), Washington,
DC, January 8, 2015............................................ 396
International Trademark Association (INTA), New York, New York,
November 5, 2014............................................... 397
Motion Picture Association of America, Washington, DC, November
7, 2014........................................................ 398
National Music Publishers' Association (NMPA), Washington, DC,
October 31, 2014............................................... 399
United States Chamber of Commerce, Washington, DC, December 9,
2014........................................................... 400
MISCELLANEOUS SUBMISSION FOR THE RECORD
Abcam, Cambridge, Massachusetts, et al., coalition of American
innovators, letter to Hon. Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, U.S. House
of Representatives Committee on the Judiciary; Hon. Charles E.
Grassley, a U.S. Senator from the State of Iowa, and Chairman,
U.S. Senate Committee on the Judiciary; Hon. John Conyers, Jr.,
a Representative in Congress from the State of Michigan, and
Ranking Member, U.S. House of Representatives Committee on the
Judiciary; and Hon. Patrick J. Leahy, a U.S. Senator from the
State of Vermont, and Ranking Member, U.S. Senate Committee on
the Judiciary; January 21, 2015................................ 401
C O N T E N T S
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MARCH 11, 2015, 10:04 A.M.
STATEMENTS OF COMMITTEE MEMBER
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 424
prepared statement........................................... 515
INTRODUCERS
Blunt, Hon. Roy, a U.S. Senator from the State of Missouri,
introducing Roseann A. Ketchmark, Nominee to be a U.S. District
Judge for the Western District of Missouri..................... 421
McCaskill, Hon. Claire, a U.S. Senator from the State of
Missouri, introducing Roseann A. Ketchmark, Nominee to be a
U.S. District Judge for the Western District of Missouri....... 422
STATEMENTS OF THE NOMINEES
Witness List..................................................... 433
Ketchmark, Roseann A., Nominee to be a U.S. District Judge for
the Western District of Missouri............................... 425
questionnaire and biographical information................... 434
Stoll, Kara, Nominee to be a U.S. Circuit Judge for the Federal
Circuit........................................................ 424
questionnaire and biographical information................... 474
QUESTIONS
Questions submitted to Roseann A. Ketchmark by:
Senator Cruz................................................. 516
Senator Grassley............................................. 518
Senator Vitter............................................... 523
Questions submitted to Kara Stoll by:
Senator Cruz................................................. 516
Senator Grassley............................................. 520
Senator Vitter............................................... 523
ANSWERS
Responses of Roseann A. Ketchmark to questions submitted by:
Senator Cruz................................................. 524
Senator Grassley............................................. 529
Senator Vitter............................................... 535
Responses of Kara Stoll to questions submitted by:
Senator Cruz................................................. 538
Senator Grassley............................................. 545
Senator Vitter............................................... 551
C O N T E N T S
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MAY 6, 2015, 2:18 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement........................................... 763
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, introducing Lawrence J. Vilardo, Nominee to be a U.S.
District Judge for the Western District of New York, and Hon.
Ann Donnelly, Nominee to be a U.S. District Judge for the
Eastern District of New York................................... 557
Tillis, Hon. Thom, a U.S. Senator from the State of North
Carolina....................................................... 555
INTRODUCERS
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
introducing Hon. Dale A. Drozd, Nominee to be a U.S. District
Judge for the Eastern District of California................... 556
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York, introducing LaShann DeArcy Hall, Nominee to be a U.S.
District Judge for the Eastern District of New York............ 560
STATEMENTS OF THE NOMINEES
Witness List..................................................... 573
Donnelly, Hon. Ann, Nominee to be a U.S. District Judge for the
Eastern District of New York................................... 562
questionnaire and biographical information................... 574
Drozd, Hon. Dale A., Nominee to be a U.S. District Judge for the
Eastern District of California................................. 561
questionnaire and biographical information................... 610
Hall, LaShann DeArcy, Nominee to be a U.S. District Judge for the
Eastern District of New York................................... 564
questionnaire and biographical information................... 689
Vilardo, Lawrence J., Nominee to be a U.S. District Judge for the
Western District of New York................................... 563
questionnaire and biographical information................... 716
QUESTIONS
Questions submitted to Hon. Ann Donnelly by:
Senator Grassley............................................. 765
Senator Vitter............................................... 774
Questions submitted to Hon. Dale A. Drozd by:
Senator Grassley............................................. 767
Senator Vitter............................................... 775
Questions submitted to LaShann DeArcy Hall by:
Senator Grassley............................................. 770
Senator Vitter............................................... 774
Questions submitted to Lawrence J. Vilardo by:
Senator Grassley............................................. 772
Senator Vitter............................................... 774
ANSWERS
Responses of Hon. Ann Donnelly to questions submitted by:
Senator Grassley............................................. 777
Senator Vitter............................................... 782
Responses of Hon. Dale A. Drozd to questions submitted by:
Senator Grassley............................................. 785
Senator Vitter............................................... 791
Responses of LaShann DeArcy Hall to questions submitted by:
Senator Grassley............................................. 796
Senator Vitter............................................... 801
Responses of Lawrence J. Vilardo to questions submitted by:
Senator Grassley............................................. 804
Senator Vitter............................................... 810
ALPHABETICAL LIST OF NOMINEES
Bennett, Hon. Alfred H., Nominee to be a U.S. District Judge for
the Southern District of Texas................................. 20
questionnaire and biographical information................... 38
Donnelly, Hon. Ann, Nominee to be a U.S. District Judge for the
Eastern District of New York................................... 562
questionnaire and biographical information................... 574
Drozd, Hon. Dale A., Nominee to be a U.S. District Judge for the
Eastern District of California................................. 561
questionnaire and biographical information................... 610
Hall, LaShann DeArcy, Nominee to be a U.S. District Judge for the
Eastern District of New York................................... 564
questionnaire and biographical information................... 689
Hanks, Hon. George C., Jr., Nominee to be a U.S. District Judge
for the Southern District of Texas............................. 21
questionnaire and biographical information................... 104
Ketchmark, Roseann A., Nominee to be a U.S. District Judge for
the Western District of Missouri............................... 425
questionnaire and biographical information................... 434
Lee, Michelle K., Nominee to be Under Secretary of Commerce for
Intellectual Property and Director of the U.S. Patent and
Trademark Office............................................... 5
prepared statement........................................... 34
Marti, Daniel Henry, Nominee to be Intellectual Property
Enforcement Coordinator, Executive Office of the President..... 7
prepared statement........................................... 36
Olvera, Hon. Jose Rolando, Jr., Nominee to be a U.S. District
Judge for the Southern District of Texas....................... 22
questionnaire and biographical information................... 170
Parrish, Hon. Jill N., Nominee to be a U.S. District Judge for
the District of Utah........................................... 23
questionnaire and biographical information................... 223
Stoll, Kara, Nominee to be a U.S. Circuit Judge for the Federal
Circuit........................................................ 424
questionnaire and biographical information................... 474
Vilardo, Lawrence J., Nominee to be a U.S. District Judge for the
Western District of New York................................... 563
questionnaire and biographical information................... 716
NOMINATIONS OF MICHELLE K. LEE, NOMINEE TO BE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S. PATENT AND
TRADEMARK OFFICE; DANIEL HENRY MARTI,
NOMINEE TO BE INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE
OFFICE OF THE PRESIDENT; HON. ALFRED H. BENNETT, NOMINEE TO BE A U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS; HON. GEORGE C.
HANKS, JR., NOMINEE TO BE A U.S. DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF TEXAS; HON. JOSE ROLANDO OLVERA, JR., NOMINEE TO BE A U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS; AND HON. JILL N.
PARRISH, NOMINEE TO BE A U.S. DISTRICT JUDGE FOR THE
DISTRICT OF UTAH
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WEDNESDAY, JANUARY 21, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:37 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. John Cornyn
presiding.
Present: Senators Cornyn, Hatch, Lee, Cruz, Perdue, Tillis,
Franken, and Coons.
OPENING STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. The Senate Judiciary Committee will be
convened. I apologize for the short delay. We've got a lot
going on, believe it or not, in other parts of the buildings
here. This is the first hearing of the Senate Judicial
Committee in the 114th Congress and I want to express my
gratitude to Chairman Grassley for allowing me to preside
today.
We'll hear from six nominees today, two to the executive
branch and four to the Federal judiciary. Three of the judicial
nominees are to fill vacancies in Texas, which may bear some
coincidental relationship to the fact that I'm presiding today.
Congratulations to all of the nominees and to your families
and friends. I know you've traveled a long way to be here
today.
I first want to introduce two highly qualified executive
branch nominees: Michelle Lee, nominated to be the Under
Secretary of Commerce and Director of the Patent and Trademark
Office position, and Daniel Marti, nominated to be the
Intellectual Property Enforcement Coordinator, or IPEC.
Intellectual property, of course, is a critical part of our
national economy, helping to encourage innovation that improves
lives and helps create jobs.
My State is proud of its role as a national hub of
creativity and innovation, from NASA in Houston, to the
thriving, creative hub in Austin, Texas. Innovation is driving
wages, jobs and quality of life, not just in my State but all
across this country.
According to Forbes, in 2014, Texas added tech jobs faster
than any other State in the Nation. From start-ups in Austin,
to universities in Dallas, to hospitals in Houston, Texans are
leading the way, we'd like to think, in intellectual property.
The Government has a critical role to play, of course, in
fostering innovation and protecting intellectual property
rights, including granting patents and enforcing our laws here
and abroad.
The President, as I said, has nominated two outstanding
candidates, and I look forward to hearing them discuss how they
plan to fulfill their missions. Ms. Lee, the nominee to run the
PTO, is currently its Deputy Director. Prior to that service
she was the first director of the Silicon Valley Office. She
also served on PTO's Patent Public Advisory Committee.
During her time in private practice, Ms. Lee was the deputy
general counsel and head of Patents and Patent Strategy at
Google. Before that, she was a partner at Fenwick & West, a
Silicon Valley law firm. She holds advanced degrees in
electrical engineering and computer science from MIT, and a JD
from Stanford Law School.
Thomas Jefferson served as one of the Government officials
first charged with granting patents. As PTO Director, Ms. Lee
has large shoes to fill and a long and storied history for that
position.
Not only will she run a large and expanding agency with
thousands of employees and offices opening around the country,
she will continue to implement the 2011 America Invents Act.
She has told me she will also help tackle some of the
threats facing our current patent system, in particular abuses
that have become all too common in patent litigation. Abusive
patent litigation hampers innovation and harms the economy.
I've worked for the better part of 2 years, as have many
Members of this panel, on this critical issue. I look forward
to moving legislation early this year under the leadership of
our new Chairman, Chairman Grassley.
Mr. Marti is nominated to be the Intellectual Property
Enforcement Coordinator, a position created by Congress in
2008. The IPEC coordinates intellectual property enforcement
across the U.S. Government, also working with other countries
and the private sector. They address complex problems such as
online IP theft. Well over a year ago, both Democrats and
Republicans urged President Obama to fill this position, which
has been vacant for more than a year.
Mr. Marti is the managing partner at the DC office of
Kilpatrick, Townsend & Stockton, where he focuses on
intellectual property matters. Among his many honors, Mr. Marti
was recognized as a super lawyer for intellectual property in
Washington, DC in 2013 and 2014. He earned his bachelor's
degree at Georgetown University and his JD at Emory University
School of Law.
Let me congratulate both Ms. Lee and Mr. Marti on your
nominations. You both have, as I said, very strong
qualifications and years of impressive experience.
In December, Chairman Grassley put the nominees, the
Members of this Committee, and the public on notice that there
would be a second hearing so it would allow new Members a
meaningful opportunity to hear both of these nominees.
I see we are joined by at least two of those new Members,
Senator Perdue and Senator Tillis. I think it's important, and
agree with Senator Grassley, that it was important to give
these new Members a chance to participate in this important
nomination process.
Let me ask both of the witnesses, please, to stand and be
sworn at this time. If you'll raise your right hand.
[Witnesses are sworn in.]
Senator Cornyn. Thank you. Please have a seat.
I would invite both of you, perhaps starting with Ms. Lee,
to introduce your family and any guests that you'd like to
introduce to the Committee, and then to make an opening
statement. So first, Ms. Lee, and then Mr. Marti.
Ms. Lee. Thank you, Mr. Chairman. I have the honor to
introduce to the Committee my husband, Christopher Shen, and
our 4-year-old daughter, Amanda Mavis.
Mr. Marti. Thank you, Senator Cornyn. I also have the honor
to introduce my wife, Lauren, who's sitting behind me. When we
were here on December 10th, I had a large group of family
members, including a six- and nine-year-old join us. They asked
to go to school today instead.
[Laughter.]
Senator Cornyn. I'm sure it's second only to going to the
dentist to have a root canal, coming to the Judiciary Committee
for another hearing. Forgive me. I wanted to turn to Senator
Coons, the Ranking Member on the Committee for purposes of this
hearing, before we'll turn it to both of you for your opening
statements.
OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
A U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Coons. Thank you, Senator Cornyn. Thank you for
chairing this hearing, and thank you to both of our highly
qualified nominees for coming again before this Committee so
that new Members of the Committee can also engage in a robust
discussion with you about the roles to which you've been
nominated and the importance of intellectual property.
The right of inventors to profit from their inventions has
been a bedrock principle of this country and has succeeded,
perhaps beyond the wildest dreams of our Founding Fathers.
What innovators are doing today with their inventions and
ideas in this Nation, backed by a strong core of IP
protections, is unmatched in the world. From lifesaving cures,
to new materials, to solutions to problems, to creative works,
it is unmatched.
We also cannot take it for granted. In 2010, IP-intensive
industries generated 27 million jobs, with another 13 million
indirectly related. Combined, we're talking about 40 percent of
the American economy. On average, IP-intensive companies pay 30
percent more than other private-sector companies. IP is
important to our economy.
As important as they are, though, they are vitally
important to the small inventor. Whether they're a garage
inventor, an aspiring new creator or entrepreneur who's found a
secret sauce, these are the people, the men and women of small
business across America, who will create the next generation of
products, of foods, of services that we will love or the
medicines we need to live.
There's a popular show that I watch with my kids called
``Shark Tank''--it might be known to some of you--where hopeful
entrepreneurs pitch their products and services to these so-
called sharks, the investors, who ask great and focused
questions.
More often than not, they ask a decisive question: How are
you going to make it in a market with so many other big
competitors who can crush you like a bug or steal your idea?
And when the inventor proudly boasts, I have a patent, it tends
to make all the difference. According to a Department of
Commerce 2010 report, three-fourths of start-up managers who
are venture capitalists consider patents when making investment
and funding decisions.
My point is simply this: If we fail to uphold and
strengthen our strong tradition of IP protection in this
country, the benefits of American ingenuity will flow out of
this country and to our competitors. So to those who say that
we have too many abuses and we need to make fundamental changes
to our patent system, I agree, we need to find a way, working
together, to clamp down on abuses.
But I also urge a little caution as we consider any
changes. There is always a momentary benefit to opening up and
making free to the world things previously protected, but there
can be long-term costs as well. Proposals to dramatically
constrain the rights of patentees to enforce their patents also
ignore the fact that the patent system these two nominees will
be entrusted to administer and coordinator enforcement for has
already greatly changed from the system just 4 years ago.
In the past year, the district courts, the Federal circuit,
and the Supreme Court have all responded to the call for more
efficient resolution of patent cases. I am greatly appreciative
of hours dedicated to a patent study group created by two
esteemed members of the Delaware bench, Judge Stark and Judge
Robinson, who hear a tremendous number of patent cases.
Following meetings with representatives across the patent
community, they've issued new case management guidelines,
reducing costs and improving speed.
The Supreme Court's decisions in Alice and Octane Fitness
have already had a dramatic impact, a 40 percent reduction in
patent filings in the year from September 2013 to 2014. At the
same time, the impact of the Leahy-Smith America Invents Act is
just beginning to register. Inter partes review has been
granted in over 70 percent of cases, resulting in expedited
decisions.
Last, we will soon learn the impact of the covered business
method program, which may also provide some helpful insight in
a path forward.
I would like at this time, if I might, to ask consent to
introduce into the record Senator Leahy's opening statement and
a letter from a broad coalition of American innovators and
companies making just this point.
Senator Cornyn. Without objection.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
[The information appears as a submission for the record.]
Senator Coons. I'd like to close by applauding the Federal
Trade Commission for their great work and saying that I think
we can find ways to work together to fully fund the PTO, to
protect trade secrets, and to move forward on patent reform in
ways that do not harm or undermine the system.
Thank you, Senator Cornyn.
Senator Cornyn. Thank you, Senator Coons.
Without objection, the statement of Senator Grassley, the
Chairman, will be made part of the record as well.
Senator Cornyn. Ms. Lee, we'll turn to you for any opening
remarks you'd care to make.
STATEMENT OF MICHELLE K. LEE, NOMINEE TO BE UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE U.S.
PATENT AND TRADEMARK
OFFICE
Ms. Lee. Thank you, Mr. Chairman.
Mr. Chairman and Members of the Committee, it is an honor
to be before you today. I'm grateful to President Obama for
nominating me for this important position and to Secretary
Pritzker for her ongoing support, past and present.
With me here today are my husband, Christopher Shen, and
Amanda Mavis, our 4-year-old daughter. I was born and raised in
the Silicon Valley, the daughter of an immigrant family that
settled in a place that turned out to be one of the most
innovative regions in the country, if not the world.
My father was an electrical engineer. We spent our weekends
tinkering and working together to build or fix things like the
Heath kit hand-held radio. In fact, all the dads on the street
that I grew up on were engineers, innovators in the truest
sense of the word.
It was not uncommon for them to work for companies founded
by a person with a clever idea who patented the invention, who
then obtained venture capital funding to build a company to
bring that technology to the marketplace.
Some of the companies succeeded and some did not, but for
those that did they created high-paying jobs for families like
mine, and in some cases new products and services that
revolutionized the world and the way in which we live.
Seeing this process up close and personal left a lasting
impression on me while I was growing up. I wanted to contribute
and to enable others to contribute to innovation. It is why I
studied electrical engineering and computer science, and later
intellectual property law, with the goal of representing
innovative companies.
While working at MIT's Artificial Intelligence Laboratory
and HP's research laboratory as a computer programmer, I
witnessed innovation at its inception. It was an exciting
experience I'll never forget and one that still informs my work
to this day.
Later as an attorney, I worked on patents and patent
strategy for a then-small company that grew into a Fortune 500
corporation in the span of eight short years. Along the way, we
built the company's patent portfolio from a few handfuls of
U.S. patents to over 10,500 patents worldwide, and in the
process I became acquainted with the many important services
provided by the U.S. Patent and Trademark Office.
Through my experiences as in-house corporate counsel, and
before that as a partner at a Silicon Valley law firm, I
represented a wide range of innovators, from independent
inventors to Fortune 500 companies. I came to understand and
practiced many areas of intellectual property law and almost
every aspect of patent law, including writing patents,
asserting patents, defending against patent infringement, and
licensing, buying, and selling patents.
I understand and appreciate from a business perspective the
important value and uses of intellectual property for
innovators and for our economy. During the past 3 years through
my service on the U.S. PTO's Patent Public Advisory Committee,
then as the agency's first Silicon Valley satellite office
director, and now as Deputy Director, I have worked with a wide
range of industries while gaining a first-hand understanding of
the U.S. PTO, its strengths, challenges, potential and
opportunities.
I have seen and worked with an impressive talent of the
dedicated U.S. PTO team. It is clear to me how the U.S. PTO's
work benefits our Nation's innovators. I believe that the U.S.
PTO must remain focused on reducing the backlog and pendency of
its patent applications while maintaining the highest level of
quality of patents and trademark examination.
Given the increasingly global economy it is also imperative
that American companies have efficient, cost-effective, and
strong intellectual property protections overseas. In my
current role, I have the privilege of working on many of these
initiatives and, if confirmed, would continue to work on these
important goals.
Finally, as with any large organization, I appreciate the
need to both effectively manage and motivate the U.S. PTO work
force. This is especially true of an organization that has more
than doubled in size in the last 10 years in order to keep up
with our Nation's innovation.
I believe that the intellectual property laws and the U.S.
PTO play a critical role in advancing American technological
competitiveness which is so necessary for our Nation's
continued economic success. If confirmed by the Senate, I
commit to bring to bear all my creativity, energy, and
intellect to protect and strengthen the intellectual property
system that has served our country so well. Thank you.
Senator Cornyn. Thank you, Ms. Lee.
Mr. Marti, your statement, please.
STATEMENT OF DANIEL HENRY MARTI, NOMINEE TO BE
INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR, EXECUTIVE OFFICE
OF THE PRESIDENT
Mr. Marti. Thank you, Chairman, and distinguished Members
of this Committee. I am honored to have the opportunity to be
considered by this Committee as the President's nominee to
serve as the administration's Intellectual Property Enforcement
Coordinator, or IPEC. I would like to thank the President for
his confidence in my ability to serve in this important post,
and I thank Victoria Spinell for her remarkable leadership and
service during her time as the first IP Enforcement
Coordinator.
This opportunity to serve my country is truly humbling. As
many of you may recall from my last hearing a few weeks ago, I
am a first generation American, born in Washington, DC, of
Spanish and Chilean parents who came to this country speaking
little English. My father, Enrique, chose to leave the seminary
in Germany where he was studying to be a Jesuit priest so he
could teach philosophy at a university in Washington, DC.
My mother, Patricia, has dedicated her life to making sure
that my two sisters and I had the chance to follow our
educational and professional pursuits wherever they would lead.
Their sacrifices have allowed me to be here before this
distinguished Committee today, and for that I am immensely
grateful.
I would also like to thank my family, including my
daughter, Elissa, and my son, Miles, and my wife, Lauren, who
is here today, for her love and support.
I currently serve as a managing partner of the Washington,
DC, office of Kilpatrick, Townsend & Stockton, which has one of
the largest IP practices of any law firm in the United States.
I have devoted the entirety of my professional practice to
matters concerning intellectual property enforcement.
My clients included companies in the fields of technology,
banking, consumer products, entertainment, media and sports,
fashion and luxury goods, hospitality, food, beverage, and
agriculture, to name a few. Through these, and other client
representation, I have developed a deep and broad view of IP
rights and IP policy.
If confirmed, I will work to achieve a thoughtful and
strong intellectual property system that encourages innovation,
creativity, and fair competition based on the rule of law. An
effective intellectual property enforcement strategy must
consist of a comprehensive and multi-faceted approach to this
dynamic issue. An IP strategy should, for example, involve:
sustained coordination among Federal agencies and enhanced
sharing of information; focused diplomatic efforts, including
engagement with trading partners; the use of trade policy tools
and IP-related training and capacity building; private sector
voluntary best practices to reduce infringement online and in
conventional marketplaces; the adoption of technological
solutions; consideration of new laws and regulations to the
extent necessary to protect IP; and public awareness,
education, and outreach.
I will work to promote our ongoing efforts to protect IP
from unlawful infringement, both at home and abroad. These
efforts will involve a broad range of stakeholders, including
Congress, Federal agencies, the private sector, and public
interest groups. Each of these stakeholders and the views and
positions they represent will be key resources for me in
pursuing the goals of my office.
America's great spirit of innovation and creativity has
been a primary driver of our economic growth and national
competitiveness. IP intensive industries represent a
substantial portion of our Gross Domestic Product and support
millions of jobs.
IP is also critical to our balance of trade. Goods from IP
intensive industries account for approximately 60 percent of
all U.S. merchandise exports and about 20 percent of service
exports. These figures are a point of national pride and we
must continue to build and invest in an IP system that will
continue to promote the growth of the American economy.
Congress, and Members of this Committee in particular, had
the vision to create the IPEC position in order to elevate the
coordination of IP enforcement issues across the United States,
and indeed, internationally.
If confirmed, I look forward to building on the success and
the momentum of the office. Thank you again for the opportunity
to appear before you, and I look forward to answering your
questions.
Senator Cornyn. Thank you, Mr. Marti.
We will proceed now with 5-minute rounds, alternating
between the Republicans--the Majority and Minority, and we will
observe the early bird rule.
Ms. Lee, in 2013, the House passed the Innovation Act,
which the administration, as you know, supported. This past
December, you testified about the continuing need to strengthen
the patent system, including legislation aimed at patent
abuses. Is that still your position? Here's the context for
that. Of course, Senator Coons alluded to the fact that there's
been ongoing decisions by Federal courts in this area. The
basic question is, does that obviate, in your view, the need
for Congress to act in this area?
Ms. Lee. Thank you, Mr. Chairman, for that very important
question. Yes, I believe that there can, and should, be
additional improvements to our legislation--to our patent
system through legislation. Much has already occurred in recent
years to strengthen our patent system, but certainly more can
be done legislatively, judicially, and administratively.
The Patent Office is already working on many of these
issues, including enhancing the quality of patents and working
on a number of White House administrative actions. But the
President has stated a need to pass additional legislative
reform, and I support that. I look forward to seeing further
reforms and working together with Congress and all of our
stakeholders to strike meaningful and balanced improvements to
our patent system that promote innovation.
Senator Cornyn. Well, at a time when there's a lot of
differences between the political parties here in Washington,
this seems to me to be one area, certainly among others, where
the White House, where Republicans and Democrats, all agree we
need to pass legislation, and I look forward to working to that
end with my colleagues here first at the Judiciary Committee,
then on the floor.
You testified in December about the popularity of post-
grant proceedings and called for Congress--well, you called
them a cost-effective, faster method of resolving the issue of
patent validity. I know you, as I'm sure you know, my office
has heard concerns from a number of stakeholders about these
proceedings.
Can you tell us about what you're hearing and your view of
the criticisms, and are there reforms to post-grant proceedings
you think that need to be made?
Ms. Lee. So thank you very much, Mr. Chairman. I've given a
lot of thought to this topic, and in fact after I was sworn in
as Deputy Director one of the first initiatives that I
undertook at the PTO was to ask my team to embark upon a
nationwide listening tour to evaluate these patent trial and
appeal board proceedings. Those proceedings had been in effect
for about a year and a half, and we had some experience under
our belt. The public was very eager to hear about best
practices when they appear before us and some of the rules and
procedures, and the agency, and I personally, was very eager to
hear what the public's reaction and feedback was on these
proceedings and how we could improve them. So in April and May
we conducted an eight-city nationwide listening tour and we've
heard a lot of feedback. Those were very, very well-attended
programs.
We also, at the end of the eight-city road show, put forth
a request for comments. We put forth 17 different questions on
all ranges of procedures and aspects of these patent trial and
appeal board proceedings, and we also had a catch-all
provision, which is, tell us anything and everything else you'd
like to know on how we can improve these proceedings. We got a
lot of input.
The deadline was extended to October and we got 37 written
comments from bar associations, companies, and individuals.
Some of the comments were very positive, some of them suggested
room for improvement. The PTO is in the process of evaluating
those comments very carefully.
Senator, if confirmed, I very much look forward to
reviewing those comments and making the proceedings of the
patent trial and appeal board even more effective, as Members
of Congress intended when they passed that legislation in the
America Invents Act.
Senator Cornyn. Thank you.
Mr. Marti, what do you see as the biggest IP enforcement
challenges that confront us?
Mr. Marti. Thank you, Senator. The threats to U.S. IP
interests are immense and growing in both size and scope. The
global nature of IP infringement is certainly an issue that has
proven difficult to tackle. Certainly what we have been seeing
in the news lately with cyber attacks that are sponsored by
foreign governments also adds a level of complexity to our
efforts to enforce U.S. intellectual property, the example I
mentioned, trade secrets in particular.
Senator Cornyn. And indeed, the President alluded to that
last night in his State of the Union and has spoken often, in
light of the hacking of Sony recently in the news and the
concerns about cyber security and intellectual property theft.
This is a role that IPEC will play front and center, is it not?
Mr. Marti. Yes. If confirmed, I intend to tackle this issue
directly and I look forward to the opportunity to work with
Congress, the administration, and other relevant stakeholders
to address this issue.
Senator Cornyn. Thank you.
Senator Coons.
Senator Coons. Thank you, Senator Cornyn.
If I might just first, Mr. Marti, to follow up briefly on
that point. To combat trade secret theft and misappropriation,
do you think either civil remedies or criminal remedies are
alone sufficient or could we benefit from having a broader tool
kit of remedies?
Mr. Marti. The effective--an effective IP strategy has to
be a multi-faceted approach. So yes, generally I would support
a larger tool kit. I think having U.S. law to address the issue
of trade secret misappropriation at the Federal level would be
important, important here domestically but also to show as a
model or to use as a model, for example, in trade agreements,
in bilateral and multilateral treaties, or to press individual
countries to adopt similar laws so that the domestic and
foreign IP will have a place to be protected overseas.
Senator Coons. I agree, and I hope we can make some great
progress on that this year.
Ms. Lee, if I might, you talked about the patent trial and
appeal boards and concerns about the process and outcomes in
the broader community. In your view, why is the board finding
that there is a reasonable likelihood so many patents granted
by the PTO initially contained unpatentable claims?
Ms. Lee. So, Senator, I think the--I mean, the board takes
a look at these matters on a case-by-case basis. I think
probably what you're seeing is these are new proceedings and
Congress very much intended for these proceedings to eliminate
patents that should not have issued out of the U.S. Patent and
Trademark Office.
So I think probably what you're seeing is some of the
initial reaction to that. We are aware of the statistics but it
does not guide the work of the Patent and Trademark Office. I
mean, we call the judges on those panels, a three-judge panel,
look at the facts of the case, look at the record before them,
apply the facts and the case law and come to their conclusions.
And you've hired more than 200 administrative law judges in
the last year alone. You have ramped up this process really
very quickly. What I am pointing toward is the possible concern
either that some of the ALJs need more relevant training and
experience, the rules of the road need to be fleshed out a
little bit further since this is largely new ground, or that
there may have been an improvident grant in the first place.
So let me just turn to a last question, if I might, about
stakeholder confidence in the system and the importance of
patents when initially granted being as high-quality as
possible to reduce litigation cost and risk and the challenges
of post-grant review.
What are your plans, if confirmed, to ensure that patent
quality is strengthened significantly in the first place upon
initial issuance?
Ms. Lee. Thank you very much, Senator Coons, for that
question. One of the top priorities, if confirmed, would be to
really enhance the quality of the patents at issue out of the
U.S. Patent and Trademark Office. We are at a very fortunate
time.
I mean, thanks to the good work of Congress and the America
Invents Act, you gave us fee-setting authorities, that we could
set our fees. Now, working with the appropriators, for the most
part we have been able to keep most of the fees that we
collect, provided they fall within our estimated amount.
So really for the first time in a very, very long time we
are in a much more secure financial situation to take a very,
very deep look at patent quality, and that is so very
important.
I mean, we are hearing it from our stakeholders, we hear it
from Members of Congress, and it is really the PTO's obligation
to issue the very best quality patents that they can at time of
examination. But, of course, we all know we have a certain
period of time these patents need to issue, and over time, you
know, oftentimes the marketplace determines which patents are
the most important.
In those instances, if it is warranted to have a second
look at the patent to determine if it was properly granted,
that's why we have some of the post-grant review proceedings
and that is also important to make sure that we ensure that
those proceedings are fair to all parties.
Senator Coons. Thank you. As you know, I share your passion
for ending fee diversion and ensuring the sustainability of PTO
funding.
My last question. In your December confirmation you
acknowledged that the legal landscape around patents is quite
dynamic. There's been a lot of changes, Supreme Court
decisions, judicially directed changes, the ongoing
implementation of the AIA. Do you still agree that Congress
should act carefully and cautiously before enacting additional
legislative changes to our patent system?
Ms. Lee. I do believe that we still need legislative
reform. As I, in response to Senator Cornyn's question--I mean,
there are certain things that are absolutely appropriate and
best handled by this body. There are other matters that can be
handled by the PTO. Enhancing the quality of patents before
they issue out of the office, that is clearly within our domain
and that's something that I intend to focus on very
concertedly, but there is a role and there is a need for
additional legislation.
Senator Coons. Thank you, Ms. Lee. Thank you, Mr. Marti.
Senator Cornyn. Senator Hatch.
Senator Hatch. As Chairman of the Senate Republican High-
Tech Task Force, I've been working with colleagues and
stakeholders to develop an innovation agenda for the 114th
Congress. Among my top legislative intellectual property
priorities are patent control and trade secrets legislation,
which as you know are critical to the continued success of the
high tech industry.
My time is limited, so I would like to ask both of you to
answer as quickly and shortly as you can. Mr. Marti, we must
remain vigilant in protecting our Nation's critical
infrastructure from cyber attacks. Equally important is
preventing trade secret theft, which costs U.S. companies, and
some in Utah, hundreds of millions of dollars each year in lost
profits and sales. What are your plans to address trade secret
theft?
Mr. Marti. Thank you, Senator Hatch. Throughout my private
sector experience I've worked with U.S. businesses to protect
their trade secrets and I fully appreciate what is at stake. I
am concerned that the pace of economic espionage and trade
secret theft through cyber hacking, for example, appears to be
accelerating.
It is essential that the IPEC office has a confirmed head
at this important time, and if confirmed to run this office, I
can assure you that I look forward to tackling this serious
issue of trade secret misappropriation with you, and other
Members of this Committee, to ensure that U.S. businesses'
trade secrets remain safe and that the U.S. economy can
continue to prosper.
Senator Hatch. How should Congress actually proceed in
tackling trade secret theft by overseeing the whole valley of
all these things and by foreign actors who are intentionally
outside the jurisdiction of U.S. courts? How do we proceed in
tackling those trade secret thefts?
Mr. Marti. Senator, where the bad actor is outside U.S.
jurisdiction, an issue that I've had to deal with repeatedly
throughout my career, I believe the U.S. industry could
strongly benefit from having Federal trade secret law in place
that, as I mentioned to Senator Coons, can serve as a model in
our trading, in our trade agreements, and pressing foreign
governments to pass similar legislation that would protect not
only their own domestic trade secrets, but U.S. trade secrets
overseas.
Senator Hatch. Okay. Ms. Lee, Section 285 of the Patent Act
was Congress' attempt to deter bad behavior in patent
litigation. ``Yes'' or ``no,'' do you agree that Section 285
has failed to achieve its objective?
Ms. Lee. Section 285, Senator, as I understand, pertains to
the fee shifting and the payment of attorneys' fees. I think
the statute alone is probably not enough. As we can see, there
are judicial changes that are under way and being considered.
And I know in the 113th Congress it was a topic of very
important discussion, and I think going forward it would be
beneficial and helpful to consider those issues, along with all
others, and weigh all factors as we determine what is
appropriate for impactful and balanced patent improvements.
Senator Hatch. ``Yes'' or ``no,'' do you believe that
Section 285 needs to be amended in order to deter abusive and
meritless litigation?
Ms. Lee. I think considering the amendment of 285 is a
topic that needs to be discussed and needs to be considered
with our stakeholders in light of all the changes that are
occurring to make sure we get it just right and we incentivize
our innovative companies to invent, yet we also allow patent
rights holders to have the ability to enforce their rights when
they need to, when they have legitimate patent rights.
Senator Hatch. Can you give me a ``yes'' or ``no'' answer
whether you agree the Supreme Court's cases in Highmark and
Octane Fitness do nothing to ensure the recovery of fee awards
from insolvent shell corporations?
Ms. Lee. So I think we're still evaluating the impact.
Senator Hatch. Do you think they do anything?
Ms. Lee. It increases the discretion for district courts to
award attorneys' fees and we'll have to evaluate. I would very
much welcome working with Members of Congress and listening to
our stakeholders if that's enough.
Senator Hatch. Well, what are your plans to ensure that
employees who are working at home are skillfully examining
patent applications? For me, this shouldn't be a numbers game.
The focus should be on properly issued, high-quality patents.
Ms. Lee. Yes. So thank you very much, Senator, for the
question. I take it you're referring to some of the time and
attendance issues that the U.S. Patent and Trademark Office has
been dealing with and addressing in the past.
Let me just say that my senior management team and I take
any kind of time and attendance abuse very seriously, but we
have taken a whole bunch of initiatives since some of those
matters came to our attention to make sure that all of you and
the members of the public have complete confidence in our
operations.
We've done things like train our examiners on the time and
attendance rules, we've brought in the National Academy for
Public Administration to review all of our procedures and
policies and controls. I look forward to receiving a copy of
that report on recommendations and best practice and I look
forward to sharing that with Members of Congress. I believe you
will also get a copy.
We have also established cross-bureau business unit
programs where we're looking at preventing abuse and
intervening early and reviewing the entire employee discipline
process so that we can make sure that we're applying the
processes and the rules consistently. So we've done a lot and I
look forward to doing much more, if confirmed.
Senator Hatch. Thank you, Mr. Chairman. Thank you.
Senator Cornyn. Thank you, Senator Hatch. I would advise my
colleagues, we have been informed that we will shortly have a
series of seven votes on the floor of the Senate, which
obviously is an interruption of what we're trying to do here.
My goal would be to see if we could move through this first
panel and then save the second--adjourn, or recess, I should
say, and then come back to the second panel of nominees.
Certainly any Senator is free to stay as long as they want
without missing votes, but consider possibly submitting
questions in writing that would be then responded to later.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Ms. Lee, congratulations on your nomination. Last year, the
Supreme Court issued a number of patent-related rulings. Those
decisions, including the Court's decision of Alice Corporation
v. CLS Bank, seemed to tighten the requirements for obtaining
certain patents and made it somewhat easier for people to
challenge the validity of patents.
At the same time, we have seen reports of a drop in the
number of new lawsuits being filed by patent holders for
infringement. Some commentators have suggested that this drop
in filings is, at least, in part, responsive to the Courts'
decisions.
Based on your experience at PTO, do you think that's true?
What other factors may be contributing, and to what extent, if
any, do you see these developments helping Main Street
retailers affected by abusive litigation practices?
Ms. Lee. So, thank you very much, Senator, for your
question. Alice v. CLS Bank came down fairly recently, so we
are all--I think all of us, the courts included, are in the
process of evaluating that. The U.S. PTO--I mean, our job is to
apply the laws as enacted by a Congress and as interpreted by
the courts. And I think, as you know, we issued guidance
recently on patent-eligible subject matter. As we speak now we
are having a stakeholder outreach session to get input on the
guidance that we've provided.
You know, as far as what effects the filings at the Patent
and Trademark Office, there are so many variables. I mean, many
of them are macroeconomic; it depends upon the economy, it
depends upon business incentives. In the business world--I
know, I was on the other side--it depends upon business
strategies, and part of it depends upon the laws and the PTO
guidance that we issue.
I guess I would say that, if confirmed as director, it
would be my job to make sure we issue as clear of guidance as
we can on issues like patent-eligible subject matter so that
our examiners know exactly how to examine these applications to
the best that we can, faithfully applying the law, and the
public also has some concrete guidance as well so that they can
make really smart business decisions and allocate their
precious R&D dollars and precious legal budgets, as
appropriate.
Senator Franken. So you do not have an opinion one way or
the other on the effects of court decisions, recent court
decisions, on the slow-down of these filings?
Ms. Lee. We've seen slight slow-downs but it's hard to--I
mean, there's so many factors involved. Part of it could be
Alice Corp. v. CLS Bank, but that was relatively recently
enacted--or, you know, handed down from the courts. A lot of it
can also be macroeconomic issues.
Senator Franken. Okay.
Ms. Lee. But it's something that I know our folks at the
CFO's office at the PTO are monitoring closely and our patents
team are monitoring very carefully.
Senator Franken. Okay. I'll go from a very specific
question to something more general. One of the reasons that has
been cited for supporting your nomination is the work that you
have done as Deputy Director of the U.S. PTO to address
problems of patent trolls. Would you explain how you define a
patent troll as distinct from a legitimate patent holder
needing to enforce his or her rights?
Ms. Lee. I think many people have many different
definitions of what a patent troll is. What I find most
productive is to focus on the behavior and curtailing abusive
patent litigation. If the abusive patent litigation occurs from
an operating company, that is unacceptable behavior and that
should be curtailed. If it occurs from a non-practicing entity
of any sort and it is abusive, that sort of behavior should be
curtailed.
Senator Cornyn. Colleagues, the votes have begun.
Senator Franken. Well, thank you very much. I will go vote.
Senator Cornyn. Senator Perdue.
We are going to try to give Senator Perdue and Senator
Tillis a chance to ask their questions before they have to
leave to vote.
Senator Perdue. I'll be very brief then. Thank you, Mr.
Chairman.
Congratulations to both of you on your nominations. You
know, our economic miracle is fundamentally founded on three
capabilities that we have in the United States: our ability to
innovate; our ability to form capital; and our rule of law. The
rule of law really helps us protect individual property rights.
Ms. Lee, I'd love for you to talk a little bit more about
finding the balance. You have spoken often about these two
competing issues, abusive litigation practices and the rights
of legitimate patent holders. What do you plan to do as a
Director of PTO, and what can we do as a legislative body to
help you find that balance?
Ms. Lee. So that's a topic that I give a lot of thought to,
Senator Perdue. Coming from the business world, I understand
the very fragile and delicate balance. It is absolutely right
to strike that right balance. It is not a single point, but it
is probably a range.
I think we just all need to work together and we need to
put the interests of the overall patent system ahead of
personal interests, you know, companies and individuals, what
is right for the patent system not just for me now and today,
but what is right for our patent system, what is right for this
country now and in the long run so that we continue to maintain
the strongest economy of innovation incentivized by
intellectual property.
I gave a speech on this and it is something that I feel
very, very deeply about. I am a beneficiary of our economic
innovation economy and it is something that I hope my daughter
has the benefit of having in her generation and subsequent
generations. So I would ask that all of our stakeholders, and
all of us, to work together to strike that right balance.
Senator Perdue. Thank you.
Mr. Marti, you've spoken often, I think even in your
December 10 testimony, about how volunteer initiatives are
really critical in finding the balance of combatting piracy and
fraudulent practices. You have also talked about coordination
of all the stakeholders.
Can you tell us, briefly, a little bit about the steps that
the IPEC is taking, and can take, in this area and what
additional work you think is required?
Mr. Marti. Thank you, Senator Perdue. The office had
previously worked on five very important voluntary initiatives.
They largely tackled following the money--advertising, revenue,
payment processing--to these rogue websites. If confirmed, I
look forward to assessing how these existing voluntary
initiatives are working and where they can be improved.
I also look forward, if confirmed, to thinking of some
enhanced enforcement strategies for this digital age. As we've
been talking about today, this is a global issue and we need to
make sure that we can combat piracy and counterfeiting
domestically and overseas, and voluntary initiatives is a good
place to start where we can bring in the private sector to
think about some of these issues and use the IPEC office as a
convener to bring some new solutions and thoughts to the table.
Senator Perdue. Thank you very much.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Senator Perdue.
Senator Tillis.
Senator Tillis. Thank you, Mr. Chairman.
Ms. Lee and Mr. Marti, congratulations on your nomination,
your impressive academic credentials, and your professional
careers.
I will just be very brief. I will just ask maybe the
questions and let you each respond, in the interest of time.
Ms. Lee, one question that I have. We obviously cooperate
with other countries with respect to protecting patents and
intellectual property, but what kind of assurances can you give
us that we can step up our efforts, particularly to some of the
jurisdictions that seem to be the most problematic now that do
not fall under any trade agreements or other intervening
frameworks that may be able to stop what we think is a
dangerous through to our intellectual property and patent
rights?
And then, Mr. Lee, I was kind of curious to what extent--
Mr. Lee? Mr. Marti. Mr. Lee, you can answer the question, too.
[Laughter.]
Senator Tillis. You seem to be busy with your daughter
right now, who is very good with a Smartphone.
[Laughter.]
Senator Tillis. But no. Mr. Marti, I was curious, to what
extent would IPEC get engaged in advising the administration
with respect to these sorts of issues in trade agreements, the
pending trade agreement with Europe, the TPP, and potentially
other countries that we have not yet gotten there with? Ms.
Lee, you can go first.
Ms. Lee. So, Senator Tillis, thank you very much for the
question to address the issue of international priorities.
Having come from the business world I recognize that there are
precious few American companies who make a product or offer a
service and intend to offer that product and service only
within the United States.
I mean, in this age of Internet where you can just as
easily sell your product to a town in Texas or to some country
overseas in Asia, I mean, the world in which you just file a
U.S. patent and that is all you need is long gone. So one of
the top priorities of mine, if confirmed, would be to make sure
that we have an international IP system that is conducive to
the export of American products and services. That is what we
need to thrive in this global economy.
In the past year, I have spent, and the team at the PTO has
spent, a lot of time and energy working on issues such as
international harmonization. If our American companies who are
looking to get intellectual property protections overseas,
right, more countries than just the United States, they need to
be able to do so efficiently, cost-effectively, and without a
lot of duplication.
Each of our patent systems grew up in its own country and
they all have their own filing requirements and they all have
their own rules. That is a tremendous opportunity. It's the
low-hanging fruit. By working on those harmonizations,
procedural and substantive, I mean, we save our companies money
and they get protections that they need more quickly. So that
would be an emphasis and a priority going forward, if
confirmed.
Mr. Marti. Thank you, Senator Tillis. The enforcement of IP
rights, as you alluded to, is certainly critical to the U.S.
economy. When the IPEC position was created in 2008, it was
done so to coordinate IP enforcement and IP policy throughout
the Federal Government.
If confirmed, I look forward to working with the USTR and
other relevant stakeholders within the Federal Government to
push for the inclusion of strong intellectual property rights
in our trade agreements and otherwise press foreign governments
for the respective U.S. intellectual property.
Senator Tillis. Thank you both.
Senator Cornyn. The Committee thanks both of the nominees
for their appearance today before this hearing, and thank you
to your families for supporting you.
We are now going to let you go and we will stand in recess
until the votes on the floor conclude, and then we'll return
and go forward with the second panel of nominees.
[Whereupon, at 3:26 p.m., the Committee was recessed.]
[Whereupon, at 5:14 p.m., the Committee reconvened.]
Senator Cornyn. We will at long last reconvene this
nominations hearing. As I told each of the nominees, our
apologies to you and your families. Unfortunately, when the
Senate starts voting, if you are going to be doing your job,
you have to go down there and vote and you don't have as much
control over your life as you do on the bench. So, that is one
great benefit to your line of work as opposed to ours.
I will introduce three of the nominees and then turn it to
Senator Lee to introduce the nominee from Utah, and then we'll
proceed.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS, INTRODUCING HON. ALFRED H. BENNETT, NOMINEE TO BE A U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS; HON. GEORGE
C. HANKS, JR., NOMINEE TO BE A U.S. DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF TEXAS; AND HON. JOSE ROLANDO OLVERA, JR.,
NOMINEE TO BE A U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT
OF TEXAS
We have, of course, four nominees for the Federal bench:
three for the Southern District of Texas, and one from Utah.
Judge Alfred Bennett is a presiding judge of the 61st Civil
District Court in Harris County, Texas. He worked for many
years in private practice at Fulbright, Jaworski, Solar &
Fernandez, and as a sole practitioner. He has also taught law.
Judge Bennett graduated from the University of Houston and
earned his JD from the University of Texas School of Law.
Judge George Hanks, Jr., serves as U.S. Magistrate Judge
for the Southern District of Texas. He graduated first in his
class from Louisiana State University and earned a JD from
Harvard Law School and an LLM from Duke University School of
Law.
Judge Hanks began his legal career as a law clerk in the
Southern District of Texas and spent a number of years in
private practice. He served as judge for the 157th District
Court and as justice for the Court of Appeals for the First
District of Texas.
Judge Jose Rolando Olvera, Jr., serves as a State district
judge in the 445th State District Court of Texas, and as
presiding judge of the Fifth Administrative Judicial Region in
Cameron County, Texas, a job actually I used to have as the
presiding judge of the Fifth Administrative Judicial Region. He
graduated from Harvard University and earned his JD from the
University of Texas School of Law.
Judge Olvera worked for years in private practice as a
State district judge in Cameron County and as a part-time
municipal judge in Brownsville. I was told that Congressman
Filemon Vela would be here; maybe because of the erratic
schedule he is not here right now, but I understand he is a
childhood friend of Judge Olvera. Of course, we will enter a
statement from Congressman Vela into the record in support of
his nomination.
Senator Cornyn. Each of these three Texas nominees are
lawyers of the highest caliber and the kind of individuals who
should serve on the Federal bench. I'm sure the Utah nominee
is, as well. But I happen to know, by virtue of our Federal
Judicial Evaluation Committee, that Senator Cruz and I appoint,
our bipartisan committee, that each of these nominees have been
through that process and I have confidence in each of them and
support each of their nominations.
I am proud of the good work that the Federal Judicial
Evaluation Committee has done. I want to express my gratitude
to the White House counsel for their constructive engagement
with us on each of these nominations.
At this point let me turn it to Senator Hatch and Senator
Lee for any comments they would care to make about Judge
Parrish.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENA-TOR FROM
THE STATE OF UTAH, INTRODUCING HON. JILL N. PARRISH, NOMINEE TO
BE A U.S. DISTRICT JUDGE FOR THE DISTRICT OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I share your
opinion of these three judges from Texas. I am pleased today to
introduce to the Committee an outstanding nominee to fill the
vacancy on the U.S. District Court in Utah.
Justice Jill Parrish currently serves on the Utah Supreme
Court. During her 12 years on our State's highest court she has
participated in approximately 900 cases that resulted in a
written opinion. She is well-known, widely respected in the
Utah legal community and elsewhere, and I am certain that she
will be a great asset to the Federal bench.
Mr. Chairman, I have participated in the appointment of
three-quarters of the judges who have ever served on the U.S.
District Court in Utah. That experience has given me a sense,
both personally and professionally, of the kind of individual
who will serve well on the Federal bench.
That experience gives me every reason to strongly recommend
Justice Jill Parrish for this appointment. I know her
personally, I know her family, I know what a great human being
she is. The United States has the most respected, most
independent judiciary in the world.
We expect our nominees to the Federal bench to have a
record of accomplishment in their chosen areas of legal
expertise. I am struck, however, at how Justice Parrish has
done this in so many areas to bring such a broad range of
experience to this appointment.
She has established a record of excellence both before and
behind the bench in both State and Federal court, in private
and public sectors, and in both trial and appellate courts. The
American Bar Association unanimously gave Justice Parrish its
highest ``well qualified'' rating.
Here is how the ABA describes what it takes to get this
rating: ``The prospective nominee must be at the top of the
legal profession in his or her legal community, have
outstanding legal ability, breadth of experience, and the
highest reputation for integrity, and demonstrate the capacity
for judicial temperament.'' I think that basically says it
all--and it certainly applies to Jill Parrish.
I want to thank Senator Lee, who is not only my colleague
on this Committee but also my partner in representing our great
State and in recommending the best candidates for judicial
appointment. We both agree that Justice Jill Parrish is a great
nominee to the U.S. District Court. I strongly recommend her
swift and unanimous confirmation and I just want her to know
that we are extremely proud of her, extremely proud of the life
she's lived, the family she is raising and has raised, and her
exceptional ability in the law and as a judge. I could not be
more pleased with the nominee than I am with this really,
really good woman jurist who has made such a name for herself
not only in Utah, but around the country as well.
Thank you, Mr. Chairman.
Senator Cornyn. Senator Lee.
OPENING STATEMENT OF HON. MICHAEL S. LEE, A U.S. SENA-TOR FROM
THE STATE OF UTAH, INTRODUCING HON. JILL N. PARRISH, NOMINEE TO
BE A U.S. DISTRICT JUDGE FOR THE DISTRICT OF UTAH
Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
for joining us today. I just want to echo the words of my
friend and colleague from Utah, Senator Hatch. This is a good
day for Utah, a good day for the Federal judiciary. This seat
and the filling of it are really important to me, for a couple
of reasons. First, the seat to which Justice Parrish has been
nominated is one that has been occupied by Judge Benson.
Judge Dee Benson has served in this seat since the early
1990s and I clerked for him right after I finished law school.
He is a judge of extraordinary character and talent. He is
someone who served in various capacities here in the Senate and
served as a Deputy Assistant Attorney General, also as U.S.
Attorney in Utah. He was an outstanding employer and has been a
mentor and a friend to me throughout my career.
Second, because of that, because of who held that seat, we
wanted to make sure that whoever filled this seat was someone
of extraordinary talent, someone up to the task, up to filling
the shoes of Judge Benson. I could not be more thrilled that
the person to fill that slot, the person nominated to fill that
slot, is Justice Parrish.
Justice Parrish and I had adjacent offices to each other
while we were both at the U.S. Attorney's Office. She served at
the U.S. Attorney's Office from 1995 to 2003 and finished that
job as head of the Financial Litigation Section within the
Civil Division of that office.
She had distinguished herself by that time as an
extraordinary litigator. Between that and her private practice
at one of our State's premier law firms, the firm formerly
known as Kibble Parr that has had many name changes since then,
largely because its named partners keep being named to high
judicial positions within our State.
Justice Parrish has served alongside my brother Tom, who
serves on the Utah Supreme Court. The two of them work well
together. I figure anyone who can work well with my brother and
get along well with him is well prepared for the Federal
judiciary.
Jill Parrish is a friend to all who know her and is a
credit to her profession, to the legal profession and to
jurists everywhere. I am honored to support your nomination.
Thank you.
Senator Cornyn. Thank you, Senator Lee.
Let me ask the nominees to please stand and raise your
right hand to be sworn.
[Nominees are sworn in.]
Senator Cornyn. Thank you. Please have a seat.
I have a few, very general and relatively brief questions,
although I had to think, Justice Parrish, about the definition
I heard one time of an appellate judge, of which I used to be
one: It is a person who hides in the hills while the battle
rages below, and then when it's over, swoops down to kill the
wounded. That was a judge joke.
[Laughter.]
Senator Cornyn. That was a little judge humor, I guess.
Senator Hatch. It could only come from Texas, is all I can
say.
Senator Cornyn. But obviously you're getting down into the
fight from the appellate bench, back down into the trial court,
which I always found was a lot more fun and entertaining
anyway.
But what I might do first, starting with Judge Bennett,
would you mind introducing your family and friends who you
brought here with you and we'll go down the line and give you
that opportunity? This is a big day for them, too.
STATEMENT OF HON. ALFRED H. BENNETT, NOMINEE TO BE A U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
Judge Bennett. Thank you, Senator. Thank you to Chairman
Grassley and to Ranking Member Leahy for scheduling this
Committee hearing, and thank you to the Members of the Senate
who are appearing here today. And thank you especially to
Senators Cornyn and Cruz for their recommendation to the
President of the United States on my nomination to the Federal
bench. And, of course, thank you to the President of the United
States for this great honor, the greatest honor of my
professional career.
Today I have the privilege of having my wife of 20 years,
Tanyel here with me today, along with our sons, Charles and
Shane. Charles is a Life Scout, one from Eagle. Shane is a
Tenderfoot and active in their Boy Scout troop. My mom, Cora
Whitlock, is here, as well as my sister Yolanda Babels, and
brother Darryl Bennett, all from Texas.
Mr. and Mrs. Matthew Washington, friends, and their son and
daughter are joining us as well. I am also very honored to have
my two best friends from law school here, Jeff Sands, who is an
attorney with the Department of Justice, and Theodore Marcus,
with the Federal Communications Commission.
I'd like to also thank the Harris County district judges
with whom I serve. Their leadership, their counsel to me during
my career on the bench has been very important in me reaching
this point.
Of course, I could not go far without thanking the staff of
the 61st District Court, the best court staff in the State of
Texas. Their support has been instrumental in my success on the
bench and I want them to know how much I appreciate it.
I would like to thank my father, who could not be here
today, as well as my brother Brent who is not here, and to all
of my family and friends in Houston and in Ennis who are
watching this via the webcast. With that, I'm prepared to
answer any questions that the Committee may have.
Senator Cornyn. Thank you, Judge.
Judge Hanks.
STATEMENT OF HON. GEORGE C. HANKS, JR., NOMINEE TO BE A U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
Judge Hanks. Mr. Chairman, Members of the Committee, thank
you so much for the opportunity to appear before you this
afternoon. Thank you to Senator Grassley for scheduling this
hearing, and to President Obama for nominating me to serve my
fellow citizens as a district judge. It is truly an honor and a
privilege, and very humbling, to be here in this place before
you where many years ago I started my journey into public
service, working for this institution as a young Senate page.
Thank you, Senator Cornyn and Senator Cruz, for your kind
words of support. The confidence that you have placed in me to
serve the citizens of our great State of Texas, and this
country, and for recommending me as a district judge to the
President.
I would like to introduce you to the very special people in
my life who are here with me this afternoon whose constant love
and support has brought me here today.
To my right is the love of my life, my wife of 20 years,
Stacy Hanks. Stacy is a social worker back in Texas. Directly
behind me is the man who is, and always will be, my hero, my
dad, George C. Hanks. My dad is retired and he is a U.S. Air
Force veteran.
My mother was a school teacher. She passed away a few years
back, but her hopes and dreams live on through me here this
afternoon. I know that she is here in spirit, looking down on
these proceedings with inexpressible pride.
Also watching the webcast of this proceeding are my
brother, Kendrick Hanks, and my sister-in-law, Lily Hanks, and
their son, Kendrick, Jr., who is watching these proceedings
with his classmates still at Abbott Elementary School in
Garland, Texas. Also, my niece Elise Ann, who is also watching
these proceedings with her classmates at Coral Middle School in
Garland.
Also here with me is a dear friend of mine, Gabarro Smith,
with the U.S. Attorney's Office. Watching on the webcam are my
law clerks and my colleagues in the Southern District of Texas,
who all represent the very finest in public service. Thank you,
sirs, for your patience. I look forward to answering your
questions.
Senator Cornyn. Judge Olvera.
STATEMENT OF HON. JOSE ROLANDO OLVERA, JR., NOMINEE TO BE A
U.S. DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF TEXAS
Judge Olvera. Thank you, Senator Cornyn. It is a distinct
honor for me to be here today, especially among such
distinguished colleagues. I congratulate them on their
nomination. I do want to take this opportunity to thank you,
Senator Grassley, Senator Leahy, and every Member of this
Committee for their support and their agreement to have this
vote today.
I would like to thank Senator Cruz and Senator Cornyn,
yourself, for recommendation to the President. I'd like to
thank the President for his nomination. I, additionally, would
like to thank the Federal Judicial Evaluation Committee formed
by Senator Cruz and Senator Cornyn for their recommendations to
the Senators. It was my privilege to meet with the Senators
last year and I thank them for every step of the process.
I would note that I would like to thank Congressman Vela
for his introduction in the record. I would like to acknowledge
my wife and friend that I have here today, the love of my life
for approximately 16 years, is Rita. She's behind me today. And
my dear friend from South Texas, Bobby Garcia, is here today.
I would also like to acknowledge my family down home
watching via webcast. My foundation and reason for being here
are my parents, Rolando and Venilia Olvera. I am also very
fortunate to have loving in-laws, Rita's parents, Bruno and
Rita Salvaletta. Our pride and joy for both grandparents and
parents are our children, Rolly, III, and Catarina. I would
also like to acknowledge my brother and his family, Renee and
Dr. Michelle Olvera in San Antonio, and their two children, my
sister Claudia and Garrett Cobbs of Houston and their two
children. Their family support has been invaluable.
My working family is in many ways just as important. I must
mention my thanks to the 445th State District Court staff.
Thank you for all your hard work in making me look good.
Likewise the Fifth Region Administrative staff of Texas, thank
you for all your hard work, in addition to the staff at OCA.
I would be remiss if I did not mention my judicial
colleagues in South Texas and all of the presiding judges in
South Texas. It is a distinct honor to work with every one of
you.
Last, I would like to thank all of my friends and
supporters in South Texas and I thank them for their support.
Once again, I look forward to answering your questions, and it
is an honor to be here today.
Senator Cornyn. Thank you, Judge Olvera.
Justice Parrish.
STATEMENT OF HON. JILL N. PARRISH, NOMINEE
TO BE A U.S. DISTRICT JUDGE FOR THE DISTRICT OF UTAH
Justice Parrish. Thank you, Senator Cornyn and Members of
the Senate Judiciary Committee. It is a real pleasure to be
here with you today. I particularly want to thank Senator Hatch
and Senator Lee not only for those kind words of introduction,
but for your support and the confidence that you have placed in
me in recommending my name to the White House for
consideration. You have championed my nomination and I know
that I would not be here today without your support.
I also want to thank my judicial colleagues on the Utah
Supreme Court. I have learned much from them and, frankly, that
will be the hardest part of this process for me, is to say
goodbye to wonderful colleagues from whom I have learned so
much.
Finally, I want to thank my family for their love and
support and introduce them to you. I have my husband and three
of my five children here. My husband, Blake, is right here. He
has been stuck with me for the last 26 years. I also have my
oldest daughter Brooke, who is back there on the second row. My
babies--and they're not babies anymore--are my twins,
Jacqueline and Adrienne, who are both 15 years old and
sophomores at Woods Cross High School.
Then, my second daughter, Lindsay, is a sophomore at Utah
State University and was unable to attend because of academic
responsibilities. My only son, Zachary, is a senior at Woods
Cross High School and he was unable to attend because he has a
varsity basketball game that he has to play in tonight. So we
made a deal. He is watching this via webcast and I hope to be
able to tune in to his basketball game tonight via a similar
kind of technological innovation that they now have going on
the high school basketball circuit in Utah.
My one regret is that my parents are not here to share this
occasion with me. They were members of the greatest generation.
In fact, had they been alive they would have been 100 years old
and 101 years old, respectively. They were my biggest fans.
They launched me and I know that they are with me here today in
spirit. Thank you again very much. I, too, look forward to
answering your questions.
Senator Cornyn. Thank you very much, Justice Parrish.
We will have 5-minute rounds. But given the lateness of the
day and our familiarity with the nominees, I think it will be
somewhat informal and sort of general. But I would just ask
each of the nominees to talk to us a little bit about your
judicial philosophy and the role that judges play in our
Government. Do you view yourself as somebody who is sort of by-
the-book or do you feel like you are a roving doer of justice
and have some flexibility in terms of what your role is to
achieve the results that perhaps you think are most just in any
circumstance? Talk to us a little bit about that. Judge
Bennett, please start.
Judge Bennett. Thank you, Senator, for the question. I
believe that my judicial philosophy has been reflected in my
past 6 years on the bench, and that has been a fair and
impartial administrator of justice, to follow the rule of law,
to follow binding precedent of the Texas Supreme Court, and of
the applicable appellate courts that I report to.
If I am confirmed by the Senate, I believe that that would
switch to the U.S. Supreme Court in the Fifth Circuit. So for
my judicial philosophy, it's been an impartial administrator of
the rule of law and to follow binding precedent.
Senator Cornyn. Judge Hanks?
Judge Hanks. Thank you, Senator. My judicial philosophy is
philosophy that I followed as a State district judge, an
appellate judge, and now as a magistrate judge, which is to
honor the oath that I have taken as a judge to treat every
party that comes before me fairly and justly under the law, and
with dignity and respect, to always follow the precedent that's
binding in front of me, and in everything I do, both my
personal life and on the bench, to maintain the integrity of
the legal justice system and the confidence that people in this
country have placed in the judiciary.
Senator Cornyn. Judge Olvera?
Judge Olvera. Thank you, Senator Cornyn. My judicial
philosophy for the approximately past 12 years as a State
district judge has been consistent. It is a combination of four
crucial elements: (1) to adhere to a duty to administer and
enforce the rule of law; (2) to maintain an unwavering demeanor
of courtesy and respect to any and all before my court; (3) to
adhere to a work ethic of moving the docket quickly and
efficiently; and last, a goal of rendering a fair, consistent,
and sagacious ruling in every single case.
Thank you, Senator Cornyn.
Senator Cornyn. Justice Parrish?
Justice Parrish. Thank you, Senator.
I believe that my judicial philosophy has also been
reflected in my last 12 years on the bench, and I would say
that it encompasses 5 main principles.
First, treat all parties and attorneys who appear in front
of me with courtesy, dignity and respect.
Second, afford all parties procedural fairness.
Third, maintain an open mind until the issues are fully
presented.
Fourth, work hard and always be prepared. And I can assure
you that in the 12 years that I've been on the Utah Supreme
Court, I have never taken the bench without being 100 percent
prepared and having read everything that the parties have
submitted.
And five, uphold the rule of law by following the statutory
text and applying precedent. There is no room for a judge to
come to the bench with a personal agenda.
Senator Cornyn. I have one last question during this round
and then I'll defer to my colleagues. I worry that our civil
justice system is so expensive and so time consuming that it
precludes access for many citizens who have legitimate
grievances they need to get resolved but they cannot afford a
lawyer to represent them, or only in some cases, for example,
where there is a serious injury or a wrongful death where a
contingency fee agreement might be appropriate can they gain
access to court.
The time it takes to resolve those differences not only
runs up the cost but may be as effective a bar to justice as a
locked front door to the courthouse. I would just be interested
in your thoughts and maybe reflections on some of those
challenges in our civil justice system, starting with Judge
Bennett.
Judge Bennett. Senator Cornyn, as a former district court
judge and supreme court justice, you know that the most
important thing that you can give litigants before you are
timely rulings. I believe that if you move cases efficiently
you cut down on the costs associated with litigation. I have
always striven to make sure that my cases were being moved
efficiently, that rulings were prompt to allow litigants to
move the cases through the system.
In addition, I think it is very important that you meet
with the litigants and the attorneys as soon as possible to get
an estimate of the potential for a trial setting such that you
can give a realistic time for a docket control order or when
the case may come to trial. With those rules in place, I think
you lowered the cost of litigation and you make the system a
lot more efficient.
Senator Cornyn. Judge Hanks?
Judge Hanks. Senator, I also share the concerns about, with
the growing caseloads, making sure that the courts are
accessible to all people that desire to have their cases heard.
In that regard, I believe that the judges and the courts play a
critical role in that and how we manage the cases.
As a judge, as a district judge and then now as a
magistrate judge, the way that we handle that is, first, to
establish reasonable deadlines, working with the parties to get
the case ready for trial as quickly as possible; as Judge
Bennett mentioned, having prompt rulings on all motions that
are before the judge in the court; also scheduling alternative
dispute resolution as necessary, and then, of course, in the
Federal courts, utilizing your magistrate judges as effectively
as possible.
Senator Cornyn. Judge Olvera?
Judge Olvera. Thank you, Senator. I concur with my
colleagues. I truly believe that a judge must be actively
involved in every case in setting very strict deadlines, both
procedurally and in terms of timeliness. I have always, over
these past 12 years, maintained very strict scheduling orders.
My civil pre-trial order is infamous at the courthouse in terms
of its strictness and severity.
In summary, I believe the more you require the attorneys to
work on a case and work together on a case, both in terms of
discovery, exchanging of exhibits, preparing for trial, the
more likelihood it is either going to settle and/or, if we need
to go to trial, run a very quick and efficient trial without
any delay. Once again, it is incumbent of the judge to be
actively involved form the commencement to the end in order to
promote the trial or settlement, and I believe in that.
Senator Cornyn. Justice Parrish?
Justice Parrish. Thank you. I agree with my fellow nominees
in terms of the importance of judicial involvement in case
management from the outset of a case. I also would like to add
that I think it is important to carefully consider and timely
rule on dispositive motions because if those are appropriate
and can be granted, that can also help to decrease the time and
expense associated with getting a case to a final resolution.
And, of course, a timely ruling by the trial judge is equally
important.
Senator Cornyn. Senator Hatch.
Senator Hatch. Well, I am impressed with you Texan judges,
there's no question about that. I think that you have a great
champion here in Judge Cornyn, who is a tremendous asset to
this Committee. So, I commend each of you and I feel you are
going to make very good judges on the district court bench. As
someone who tried a lot of cases in Federal court, among some
very interesting judges, by the way, both--in Pittsburgh, we
had Judge Wallace Gourley, who was a law unto himself, but
brilliant. The same thing in Utah with Judge Willis Ritter, who
was a law unto himself, brilliant as could be, and very erratic
in some of the things he did. But I always got along with him.
You judges bring things to the court, to your respective
courts, that I think are going to be very, very good. I have
known Jill Parrish for a long time--Justice Parrish. I have
nothing but the best respect for her and her ability and
capacity to be a district court judge. I will ask one question
of you, Justice Parrish. That is that, you know, the Committee
sees nominees all the time who currently serve as trial judges
and who are nominated to the appellate level. We see that.
But here we have you, an appellate judge, who is nominated
to the district court level to preside over individual trials.
I would just appreciate your perspective on two things: (1)
What are some of the important characteristics or qualities
that both trial and appellate judges must have, and (2) What do
you anticipate are some of the differences between your current
role as an appellate judge and your upcoming role as a trial
judge?
Justice Parrish. Thank you, Senator. You are correct that
my career path is a bit atypical in that I am going from an
appellate bench to the trial bench. But the truth is that I
spent the first 18 years of my legal career primarily in the
district court and I really miss the courtroom. I believe that
the skills that I have developed not only during the 18 years
that I spent primarily in the trial courtroom, but also during
the last 12 years on the Utah Supreme Court, will serve me well
on the district bench.
They really both involve the same skill, and that is of
applying the law to the facts. While there are some differences
in terms of the fact that appellate courts have the facts
already determined, trial judges, of course, are involved in
overseeing the jury and the jury has the role of finding the
facts, but I believe that the skills and the decisionmaking
process is very similar.
One of the new challenges, of course, will be in actually
moving cases along and in the case management aspect, but I
believe that the skills I developed while I was a trial lawyer
will serve me well in that regard, and that is an area where I
can quickly come up to speed.
Senator Hatch. Well, thank you. I am very proud of you and
look forward to your working in this very, very important area
because this is where really a lot of things are decided right
on the trial level and it takes really good, honest judges to
do that. I just want you to know I have every confidence you'll
be one of the best judges in the country, as I do with these
other gentlemen as well.
But thank you for being willing to do this. I know that
being a justice on the Utah Supreme Court is a very high honor
in and of itself. But I am grateful that you're willing to get
back to the district court level where you worked for many
years, and I know you'll do a great job.
Justice Parrish. Thank you.
Senator Cornyn. Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
I'd like to hear your thoughts on an issue that Justice
Parrish referred to a minute ago, which is dispositive motion,
the role dispositive motions play in a Federal trial court. It
has been my view, or, at least, a fear of mine, that there
might be a natural tendency in any trial court for a judge to
engage in what I sometimes refer to as trial by attrition.
In other words, when you're faced with a dispositive
motion, I would think there would be a natural temptation to
want to deny the motion in a close case. It is easier to deny.
Usually there is a shorter order involved if you deny the
dispositive motion. There's not an appeal that will immediately
follow if you deny the dispositive motion. Because of all these
factors, it's just a lot less work and a lot less risk to the
judge and there's a lot greater likelihood that the case will
just go away, it'll just settle along the way.
So how do you protect against that? How do you protect
yourself against that, against this natural tendency that I
think all humans would have in that circumstance? Why don't we
start with you, Justice Parrish, and then move down to the
others?
Justice Parrish. Thank you, Senator Lee. And I do agree
with you that litigation is very expensive and it is not a good
thing when motions that ought to be granted are denied because
trial judges are afraid to take a stand and make a decision.
But I would see that as part of my duty in applying the law.
The rules of civil procedure dictate that a party is entitled
to summary judgment when there are no material facts in
dispute.
So if a judge is willing to roll up her sleeves and do the
work to make that determination, then the judge should not be
deterred by the fear of an appeal. I believe that I know what
goes on at an appellate level and I believe that I'll have the
confidence to look hard at those issues and to grant summary
judgment where it is appropriate.
Senator Lee. And I assume, by the way, that an appellate
judge who has shown up every day for 12 years, never being
unprepared for an appellate argument, is one who would likely
approach dispositive motions with the same degree of
preparation.
Justice Parrish. I would.
Senator Lee. Hypothetically, of course. Yes?
Judge Olvera. Thank you, Senator Lee. Well, I do concur
with much of what Justice Parrish just indicated. And as I
indicated before, I have a very strict scheduling order and
civil pre-trial order that sets deadlines in terms of discovery
and dispositive motions. Once again, when and if I hear a
dispositive motion vis-a-vis a motion for summary judgment, I
am bound by the rule of law.
In the scenario when giving the light most favorable to the
respondent, there is no material issue of fact or insufficient
evidence. I have no objection to issuing a motion for summary
judgment. That is my duty. It is the law. On the same token, if
they do not meet that difficult burden, well, we're back to the
stages of proceeding to a trial and I follow the law.
Judge Hanks. Senator, I agree with everything my fellow
nominees have said. It is--as a judge you have an oath to
uphold the law and follow the law and apply it evenly and
fairly in every case. Part of that job is to timely and
efficiently rule on the motions that's before you. Yes it may
take time, and yes it may be difficult, but it's your
obligation.
It's the oath that you've sworn to under--undertake. So as
a judge, as a trial judge, both a State trial judge and a
magistrate judge, although it's very time-consuming in cases
going through Motions for Summary Judgment, I've always taken
the time to look at those motions carefully.
And as a former appellate judge, I kind of have a feeling
and an idea of what the appellate judges are looking for, as
well when you grant dispositive motions. So I feel that I've
been able to efficiently rule on those motions timely and move
the cases along with minimal costs to the parties.
Judge Bennett. If a dispositive motion has merit, it should
be granted. The rules of procedure provide for that and, if you
follow the rule of law, dispositive motions will be granted if
they have merit.
Senator Lee. Great. Okay. So my time is about to expire so
I'm going to save this question just for our Utah nominee.
Justice Parrish, when we're looking at a question of
statutory interpretation, these questions will arise constantly
in the court to which you've been nominated. When you approach
those are you bound by the original meaning of the text, and if
so, when there is uncertainty as to the original meaning of the
text, how do you resolve the case, how do you decide the case?
Justice Parrish. I absolutely agree that the text is where
you go and in most cases the text will provide the answer.
There may be some few cases of first impression where that's
not the case. Of course, in the U.S. District Court you would
also be bound by any Tenth Circuit precedent or Supreme Court
precedent interpreting that same statute. I believe that it is
important to look at what the meaning of that text would have
been to the framers who adopted the Constitution or to the
legislators who adopted a particular statute.
I think if you look at the opinions that I have authored
over my 12 years on the supreme court, they begin with a text.
There are some rare occasions where the text doesn't provide
the answer and in that case, of course, you look at how the
text is situated in the document. You see if there are other
portions of the statute that shed light on the meaning of that
text. And as a last resort, you can turn to well-accepted
principles or canons of statutory construction to fill in any
gaps.
Senator Lee. Great. Thank you very much. I see my time's
expired. Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Senator Lee.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. I want to welcome
each of the four of you here, congratulate you on y our
nominations to a very important post. Each of the men and women
gathered here are very impressive. You have assembled serious
professional accomplishments over long and distinguished
careers.
I would note the three Texas nominees, you have gone
through a long and grueling process that involved going through
the Federal Judicial Evaluation Committee that Senator Cornyn
and I have established where your backgrounds, your practice,
were carefully scrutinized by some of the most experienced and
respected attorneys in the State of Texas, in a bipartisan
manner.
And each of the three of you with respect to the Texas
nominees came through with flying colors and so you have
impressed your colleagues with your diligence, and integrity,
and practice of law. So I congratulate you with that. Senator
Cornyn and I have had the opportunity to visit with each of you
as well, and you've impressed us as well which--I'm a pushover,
but getting John on board is pretty tough. So, I congratulate
you on that.
I'd like to ask each of the four of you at the outset
simply a question, which is, briefly, how would you describe
your judicial philosophy? Judge Bennett, why don't we start
with you?
Judge Bennett. Thank you, Senator Cruz. When I first
started on the bench one of the things that I said I wanted to
do was impress my mom if she was sitting in the back of the
courtroom. So that means, to me, to be respectful to the
litigants who are before me, to listen, to make sure that when
they leave that courtroom, that they feel that they have had a
fair and impartial hearing before a judge. When a litigant has
been treated respectfully, has been heard, and has had an
impartial ruling, the ends of justice have been served.
Senator Lee. And I do have to ask you, is your mom sitting
here in the hearing room today?
Judge Bennett. Yes, sir.
[Laughter.]
Senator Cruz. Well, welcome. And I have every doubt that
today you have satisfied that test--or every certainty, rather.
Judge Hanks. Thank you, Senator, for that question. You
know, growing up in Louisiana, my dad taught me that if ever
you're faced with a difficult decision in life, whatever it is,
always treat people the way you'd want to be treated, with
dignity and with respect. And if you do that, no matter what
the issue is, you'll always come to the right conclusion.
As a judge, my judicial philosophy has been to honor the
oath that I've taken as a judge, to always treat the litigants
the way I would want to be treated, or my family members would
want to be treated, in court, with dignity and respect, and to
evaluate and adjudicate all matters that come before me fairly
and justly under the law, and in everything I do, both in my
personal life and on the bench, to protect and preserve the
confidence that people have placed in the Judiciary Committee
and the integrity of the legal justice system. And I've done
that for the last 14 years on the bench and I would continue to
do that as a district judge.
Judge Olvera. Thank you, Senator Cruz. It's a pleasure to
see you here today. My judicial temperament is based on a
theory of humility and respect. Humility as a judicial public
servant and respect for the legal system. My judicial
philosophy is cored in four elements that I adhere to: a duty
and commitment to the rule of law; number 2, courtesy and
respect to any and all before--that appear before the court;
number 3, a work ethic--a hard work ethic to move the docket
quickly and efficiently; and last, to have a constant goal to
issue fair, consistent, and sagacious rulings that come before
the court.
Justice Parrish. Thank you, Senator. If I am fortunate
enough to be confirmed, I will take this position with no
personal agenda whatsoever other than to apply the law and to
treat everyone with courtesy and respect and to afford them
procedural fairness.
And I think it's always important to keep in mind that
while a judge may hear many matters over the course of a day,
or a week, or a month, that for the litigants who were involved
in those cases, that case is likely the most important or one
of the very most important things going on in the life of those
individuals at that point in time. And I think if the judge can
keep that in mind, then that puts the rest of it into
perspective and it makes the judge more inclined to work
harder, to keep an open mind, to be completely impartial and to
apply the law.
Senator Cruz. Well, let me thank each of you. And with the
Chairman's indulgence, if I may ask one more question, which
is, I'd like to ask each of you to define judicial activism and
to articulate your views as to a judge's obligation not to
engage in judicial activism. Why don't we start with you,
Justice Parrish?
Justice Parrish. Thank you, Senator. I believe that
judicial activism is when a judge brings an agenda to the
bench, when a judge is willing to substitute his or her own
views and to take that into account as opposed to the law. Then
that could be judicial activism. It could also manifest itself
if a judge decides issues that aren't squarely presented or
issues that don't need to be decided.
Judge Olvera. Thank you, Senator Cruz. I concur with my
colleague's opinion. I would define judicial activism as a
judge who fails to follow his duty to follow the rule of law
and promote personal beliefs in contravention of said duty. I
believe my judicial record is a proven asset in that I have
consistently applied the rule of law over these past 12 years
and, if confirmed, I would commit to you and the citizens of
this great country to continue to do the same.
Judge Hanks. I concur with my colleagues, my fellow
nominees. A judicial activist is someone who fails to honor the
oath that they've taken as a judge to uphold the law and apply
it fairly, to leave their personal feelings out of their
decisionmaking, and to not honor the needs and desires of the
litigants, that is, to put their needs before that of the
litigants. In my 14 years on the bench I have honored that
oath, and I would continue to honor that oath if I'm privileged
to serve as a district judge.
Judge Bennett. Thank you, Senator Cruz. I agree with my
fellow nominees. I believe that if you uphold our oath as a
judge you will not have a personal agenda in the courtroom, you
will not have your finger on the scales of justice, and that
you will fairly and impartially administer the law.
Senator Cruz. Thank you to each of you, and congratulations
again.
Senator Cornyn. That is it for our hearing for today. I
would just like to again express my appreciation to each of you
and your families for being here before the Committee and
answering all of the questions and enduring all of the process
that led up to this point, as well as the hectic schedule of
the Senate when votes intervene right in the middle of what you
thought was going to be a smooth and efficient hearing.
The record will remain open for a while, to be determined
by the Chairman, at which time there may be additional
questions submitted to you in writing. And so if there are I
hope you will pay attention to those and timely respond. I'm
not sure there will be, but there's--that's part of our usual
process. With that, let me thank you again for being here with
us today and congratulations on making it this far. The next
step will be for the Chairman of the Judiciary Committee to
schedule a mark-up to actually vote on those nominations, and
that will be--I'm sure his staff will be in communication with
you about what that likely time table will be.
So with that, the Committee is adjourned.
[Whereupon, at 6:03 p.m. the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Hon. Alfred H. Bennett, Hon. George C. Hanks,
Jr., Hon. Jose Rolando Olvera, Jr., and Hon. Jill N. Parrish by Senator
Cruz
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Hon. Jill N. Parrish by Senator Grassley
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Responses of Daniel Henry Marti to Questions Submitted by Senator
Vitter
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF KARA STOLL, NOMINEE TO BE A U.S. CIRCUIT JUDGE FOR THE
FEDER-AL CIRCUIT, AND ROSEANN A. KETCHMARK, NOMINEE TO BE A U.S.
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI
----------
WEDNESDAY, MARCH 11, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Tillis, and Franken.
Chairman Grassley. I am not going to make an opening
statement until my two colleagues have made their statement.
If you are ready, Senator Blunt and Senator McCaskill.
Senator McCaskill, you are the senior Senator, so we will start
with you.
Senator McCaskill. I am going to defer to my colleague.
Chairman Grassley. Then, Senator Blunt.
STATEMENT OF HON. ROY BLUNT, A U.S. SENATOR FROM THE STATE OF
MISSOURI, INTRODUCING ROSEANN A. KETCH-MARK, NOMINEE TO BE A
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI
Senator Blunt. Well, I am pleased to be here, Chairman. I
thank Senator McCaskill for deferring to me. I have got an
appropriations hearing on Armed Services and I am going to be
leaving to go there, but that should not be a reflection of any
lack of enthusiasm for this nominee.
I think Roseann Ketchmark will do a great job as a judge. I
am supportive of her. Looking at her background, I think we
will all be impressed the more we find out about her. She spent
4 years while getting her law degree as a registered nurse.
She served for 12 years on the advocacy board for the Child
Advocacy Center. This is something that, in the last Congress
when we extended the Victims of Child Abuse Act, many of us got
to be more familiar with those centers and the good work they
do than we would be otherwise.
I am not personally well connected to the Ketchmark family,
but I have lots of friends who are. And by the way, her family
is here with her today. Her husband, her brother-in-law, her
three children, all proud of her, as they should be.
But I am well connected with people that she has worked
with and for. She worked for the Jackson County prosecuting
attorney, who is a friend of mine. She worked for the Platte
County prosecuting attorney, who is a friend of mine. She
worked for--when Senator McCaskill was the Prosecutor in
Jackson County, obviously worked for a Democrat. She worked for
a Republican prosecutor in Platte County. She worked for a
Republican U.S. Attorney and a Democrat U.S. Attorney and in
all cases, they are supportive of her and her work and an
advocate for her as we talk about this judgeship for the U.S.
District Court Judge for the Western District of Missouri.
I hope the Committee reports her out favorably and I intend
to support her not only today, but on the floor.
Senator McCaskill.
STATEMENT OF HON. CLAIRE McCASKILL, A U.S. SENATOR FROM THE
STATE OF MISSOURI, INTRODUCING ROSEANN A. KETCHMARK, NOMINEE TO
BE A U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI
Senator McCaskill. Thank you very much. Thank you, Senator
Grassley, and thank you, Senator Blunt.
I am honored to be here today to lend my support to Roseann
Ketchmark for a position on the Western District Federal bench.
I have known Roseann since I took office as Jackson County
Prosecutor in January 1993. She was an Assistant Prosecutor in
the Office. And when you run a prosecutor's office, many days
it feels like you are herding cats, and I am not talking about
the criminals. I am talking about all the Type A personalities
you have in the office, because people who are attracted to the
work of a prosecutor, many types have--well, let us say maybe a
heightened sense of self, to put it diplomatically.
Roseann stood out to me because she did not. Roseann was a
trained nurse and as I grew to know my staff, I was always
struck by the fact that she was not capable of showboating. She
was not capable of trying to get the light to shine on her. She
had no sharp elbows. She kept her head down and worked
incredibly hard and produced a quality product, and by product,
I mean her time in the courtroom.
There are different ways to be effective in a courtroom.
There are some lawyers that are very effective in a courtroom
because they know how to fill the space with their personality.
There are other attorneys that are good in the courtroom
because they gain the confidence of the jurors, and that is the
kind of trial lawyer that Roseann Ketchmark was. That is the
kind of prosecutor she was.
Because she was so good at her job, I designated her as the
lead child homicide prosecutor in my office. Now, that is an
enormous responsibility. And imagine the psychology of that
job. Imagine the stress of every day knowing you had to open
files and become very familiar with sets of facts that no one
should ever have to read about, much less relive day in and day
out as you prove to our criminal justice system that someone
deserves to be locked up for killing a child.
I was sad when she got another job, but it was a promotion
and it is always encouraging when people you work with in your
office are succeeding and moving on. And she went on to work
for, as Senator Blunt mentioned, a Republican prosecutor in the
adjoining county.
He quickly realized that she was the kind of manager and
prosecutor that could be a mentor, someone who could train
young lawyers and who could help run his office, and she was
the first assistant, which is the most important job--that is
like a chief of staff in the Senate--in terms of making sure
the office runs well.
She did such a good job there that she was then recruited
away to the U.S. Attorney's Office, where she has done
remarkable work for 14 years under U.S. Attorneys that were
appointed by Republican Presidents and U.S. Attorneys that were
appointed by Democratic Presidents.
The one thing that I always like to find out about when I
am looking at candidates to have a lifetime appointment is how
do the people who work with them feel about them, how do the
lawyers that are on the other side of cases feel about them,
how do judges view them. And in this case, Roseann Ketchmark is
at the top of everyone's list. And these are from very liberal
criminal defense lawyers who I disagree with a lot on many
things to the most conservative Federal judges.
Roseann has incredibly high references. And I am not sure,
Senator, that you will have very many judges that will come
before you, potential judges, judges that are seeking
confirmation, that have been a lead lawyer in a jury trial over
75 times. She has participated in more than 100 trials, and
when you have been--and in front of 28 different judges.
So Roseann Ketchmark knows a good judge when she sees it
because she has been in a courtroom in front of 28 different
judges, which allows you to view what works in a courtroom,
what habits do judges have that are respectful of the
litigants, what judges show how hard they have worked in terms
of really understanding the issues in front of them, not just
something that has been written by their staff, but something
they fundamentally grasp and understand.
So I think this is going to be a superior appointment, a
superior confirmation. I really want to tell you how much I
appreciate, Senator Grassley, you holding this hearing today. I
know that it is hard to figure out who gets in front of the
Committee and who does not at this point, and I know I speak
for Senator Blunt that the State of Missouri is very grateful
that you are giving her an opportunity to appear in front of
you today.
Thank you very much.
Chairman Grassley. It is not our tradition to vote people
out of Committee just because of two speeches like yours, but
it probably means that they are going to have a smooth ride.
[Laughter.]
Chairman Grassley. Thanks to both of the Senators. Thank
you very much.
If the two people would come to the table and before you
sit, normally I do not have people stand up to swear, but as
long as you are standing up, let us do it this way.
[Nominees are sworn in.]
Chairman Grassley. Thank you. Both affirm that.
Before I introduce Ms. Stoll, I will give my opening
statement, because I wanted to defer to my Senate colleagues,
because they are busy with other Committees and I thank them
very much for their introduction of Ms. Ketchmark. And I will
introduce Ms. Stoll in just a minute.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Today we will hear from two nominees to
the Federal bench: Kara Stoll, nominated to be Circuit Judge
for the Federal Circuit, and Roseann Ketchmark, nominated to be
District Judge for the Western District of Missouri.
Anybody that has statements to put in the record, the
record will remain open for a few days for my fellow Senators
to do that.
I would now go to the introduction of Ms. Stoll, because,
Ms. Ketchmark, I will not be introducing you because you have
already been introduced so well.
The nominee, Ms. Stoll, is currently a partner in the
Washington, DC, office of Finnegan, one of the world's largest
intellectual property firms.
Ms. Stoll graduated from Michigan State University in 1991
with a degree in electrical engineering. She worked as a patent
examiner in the U.S. Patent and Trademark Office for 6 years.
In 1997, Ms. Stoll graduated from Georgetown University Law
Center. After graduation, she clerked on the Federal circuit
for Judge Schall. Ms. Stoll joined Finnegan in 1998 as an
associate, made partner in 2006. Her legal career has focused
on the area of patent litigation.
In addition to her patent litigation practice, she often
appears on panels and gives lectures addressing certain
developments of intellectual property law.
In 2013, she was named a Washington, DC, quote, unquote,
``Super Lawyer'' in intellectual property litigation.
Ms. Stoll has also taught courses on Federal circuit
practice and procedure and patent law and public policy at
Howard University School of Law and George Mason University
School of Law.
Now, we will start with Ms. Stoll. Before you make your
opening statement, you have an opportunity to introduce any
family and friends or professional associates that you have
with you that you want us to know about.
Since there are not so many people here, you will not have
to stand, but if you would raise your hand so we know who you
are. Would you proceed? And then I will call on Ms. Ketchmark
after Ms. Stoll makes her opening statement.
STATEMENT OF KARA STOLL, NOMINEE TO BE
A U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT
Ms. Stoll. Thank you, Chairman Grassley.
I would like to first start by thanking President Obama for
nominating me.
I would like to thank Chairman Grassley, Ranking Member
Leahy, and the Members of the Committee for scheduling this
hearing. I am so grateful to be here and for your
consideration.
For introductions, I am fortunate to have lots of family
and friends here with me to support me today and I would like
to first introduce my husband, Tom Stoll, and thank him for his
unending love and support.
I would like to introduce our three children: Jackie,
Braden, and Tessa. And I would like to introduce my parents,
Jack and Jackie Fernandez, and thank them for teaching me the
value of hard work and getting a good education.
I would like to introduce my wonderful brother- and sister-
in-law, Bob and Suzanne Stoll, and my nephew, Michael Stoll,
and thank them for their love and support.
And last, but not least, I would like to introduce my
wonderful assistant and friend for the past 14 years, Susie
Plinsky, and my partner and mentor, Mike Jakes, and my many
other friends and colleagues who are here from Finnegan, the
United States Patent and Trademark Office, and the court.
I am so grateful to have had the opportunity to work with
and learn from them. And last, but not least, I would just like
to thank any friends and family who are watching.
Chairman Grassley. Thank you. Now, would you like to
proceed with any statement you want to make? You do not have to
make a statement, but if you want to, this is the time to do
it.
Ms. Stoll. I do not have a statement. Thank you.
Chairman Grassley. Now, we go to Ms. Ketchmark. Before you
do that, since we have not had a Member of the Minority speak
yet and if you had a statement for the Minority or for
yourself, I should give deference to you at this point.
Senator Franken. You should.
[Laughter.]
Senator Franken. Oh, I have nothing to say.
[Laughter.]
Chairman Grassley. Now, Ms. Ketchmark.
STATEMENT OF ROSEANN A. KETCHMARK, NOMINEE TO BE
A U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI
Ms. Ketchmark. Good morning, Chairman Grassley and the
distinguished Members of the Committee. Thank you for the
opportunity to appear before you today and for considering my
nomination.
I am honored and grateful to be nominated to this important
position.
I would also like to thank my Senators from the great State
of Missouri, Senators Claire McCaskill and Roy Blunt, for all
of their past and their ongoing support for me and for their
kind introductions.
With me today is my husband, David, and our three children.
Our oldest is Nick, who is a second-year student, a biochem
major, at the University of Missouri. Our daughter, Jill, is in
the 8th grade. And our youngest, Josh, is in the 6th grade.
Also here today is my brother-in-law, Michael Ketchmark,
and his law partner, Scott McCreight. I am also delighted and
honored to have Judge Gary Fenner with me today. He is a
Federal District Judge with the Western District of Missouri.
Again, thank you for considering my nomination and I look
forward to answering your questions.
Chairman Grassley. What we will do is we will do five
rounds by order of people coming in, first recognizing Senator
Tillis and then Senator Franken. I will start.
I am going to start with Ms. Stoll. How do you expect your
experience as a patent examiner at Patent and Trademark Office
will impact your judicial decisionmaking process?
Ms. Stoll. Thank you. I think that I have a wealth of
experience that would help me in my position, were I lucky
enough to be confirmed.
That experience that I had at the Patent Office introduced
me to concepts of patent law. I learned how to quickly learn
new technology and to quickly and efficiently reach decisions.
And I also have, as you mentioned, a lot of other experience,
including representing plaintiffs and defendants. So I can
understand both sides of the issues.
Chairman Grassley. The second question to you: the American
Invents Act created by the Patent Trial and Appeal Board. Post-
grant review proceedings which place appellate jurisdiction in
the U.S. Court of Appeals for the Federal Circuit.
Because this process is relatively new, the Federal circuit
has considered and is expected to face a number of cases of
first impression. If there were no controlling precedent was a
dispositive on an issue with which you were presented, to what
source would you turn for persuasive authority?
Ms. Stoll. If I were fortunate enough to be confirmed, I
would--and there were no controlling precedent, I would, of
course, turn to the governing law, whether it be a statute or
regulation, and I could also consult other sources if
necessary. For example, we could review decisions that although
are not binding, but might be advisory, from other circuit
courts or in other areas of the law, but first and foremost, I
would consult the statute and any other governing law.
Chairman Grassley. I probably should have asked the next
question before I just asked that one.
What would be the principles that would guide you or what
methods would you employ in deciding cases of first precedent?
Ms. Stoll. Just to clarify, did you say cases of first
impression?
Chairman Grassley. Yes. I think I said impression wrong,
but go ahead. Thank you for the correction.
[Laughter.]
Ms. Stoll. Thank you, Chairman Grassley.
I would first look to whatever the governing law is. The
Federal circuit often is hearing cases involving statutes, and
so I would turn to the statute and look to the plain language
of the statute.
I could also consult decisions from other circuit courts or
from the Supreme Court in analogous areas of the law or cases
that might not be binding, but nonetheless could be
instructive.
Chairman Grassley. In a recent article co-authored by you,
IP Litigator, when discussing the Federal circuit, you stated,
quote, ``A Federal Circuit appeal requires the parties to move
beyond recitation of technical arguments; thus, including in
the PTAB record, where possible, facts for developing
compelling equitable and/or policy arguments and then
highlighting those facts on appeal can be important to the
eventual outcome. The Federal Circuit must consider how its
decisions will affect not only the present parties, but future
litigants, as well.''
I would like to have you elaborate on it. And then second,
what weight will equitable and/or positive arguments play in
your decisionmaking process?
Ms. Stoll. Well, first of all, I would just like to say
that I recognize that there is a difference between the role of
an advocate and the role of a judge. And if I were fortunate
enough to be confirmed, I would apply--I would, with full
faith, apply the law to the facts to determine the correct
outcome.
I do not think that equitable considerations should factor
into it if, when you apply the law to the facts, you have an--
you have the right outcome.
Chairman Grassley. I am going to go to Ms. Ketchmark now.
And if my colleagues will give me a little time over 5 minutes
so I do not have to go back for a second round.
Ms. Ketchmark, you served as a prosecutor for many years.
Early in your career, you were profiled in a local newspaper
article as rising star. That is quite a complimentary thing. In
this article, you discussed your work on child molester and sex
offender cases, which are often difficult cases to prosecute as
they involve emotion with children and families.
You were quoted as saying, quote, ``I don't enjoy
punishing, yet consider what they do to the children,'' end of
quote. Later on you said that, quote, ``Penitentiary doesn't
help anyone,'' end of quote.
So I would like to ask you about that particular comment.
Could you please explain what you meant by that statement? For
instance, do you believe a judge should balance seeking justice
for victims and punishments with the need of rehabilitation for
offenders?
Ms. Ketchmark. Thank you, Chairman Grassley.
The penitentiary is very valuable for a number of reasons.
Statistically, it may not have the highest rehabilitation value
that we would hope, but it does serve to punish. It does serve
to deter and it does help the victims for just making them--
securing punishment for the victims.
So I do want to make sure that, and I think my record
reflects that, I think prison systems are very valuable and
needed, especially in child molestation cases.
Chairman Grassley. If confirmed, are there any crimes or
types of offenders that you would have difficulty sentencing to
a long prison term if the statute mandated one?
Ms. Ketchmark. No.
Chairman Grassley. In another article, you mentioned that
prosecutors sometimes agree to, quote, ``weak plea deals to
save children the trauma of trial,'' end of quote. I can
imagine, as a prosecutor, these are difficult decisions that
you or other people have to make.
If confirmed, you will be presented with plea deals from
time to time that you will need to accept or reject. How would
you balance these considerations as a judge?
Ms. Ketchmark. Thank you, Chairman Grassley.
There are a number of factors that go into plea
negotiations. Regarding crimes against children and sex crimes,
one of the factors is the trauma, especially of children,
testifying in a court proceeding. Disclosing their first sexual
experience to jurors is very scary.
I do think that that is a factor in plea negotiations. I do
not think that children testifying is particularly therapeutic.
So I do believe that is a valid consideration when you discuss
dispositive dispositions of criminal cases.
Chairman Grassley. For both of the nominees, I will have
additional written questions and other Members that cannot be
here will probably have additional questions for answer in
writing.
We usually do not schedule to be on the agenda until we get
those responded or you could be on the agenda, but maybe not
taken up until you have responded to all those questions.
Senator Tillis, I was making a judgment first come, first
answer, based upon what we used to do in the Finance Committee
when I was Chairman. The precedent here dictates that I go to
Senator Franken before you.
Senator Tillis. Thank you, Mr. Chairman. I recognize
Senator Franken was here far later than me, but I do think it
is appropriate he goes first.
[Laughter.]
Senator Franken. I ask that that be stricken.
[Laughter.]
Chairman Grassley. So ordered.
Senator Franken. Thank you, Mr. Chairman.
My first question is for Jackie, Braden, Tessa, Nick, Jill
and Josh.
[Laughter.]
Senator Franken. If your mother is confirmed, would you
refer to her, as you are supposed to, as Your Honor?
[Laughter.]
Senator Franken. I got a ``no'' from Josh and, for the
record, no response from the others.
[Laughter.]
Senator Franken. Ms. Ketchmark, congratulations on Josh.
[Laughter.]
Senator Franken. Ms. Stoll, congratulations on your
nomination. One of the issues we have been wrestling with here
in the Senate is patent litigation.
In the last year, the Supreme Court has issued several
rulings on patents that some have suggested may have the effect
of curbing some of the bad practice we have seen from patent
trolls.
Those decisions, such as the Court's decision in Alice
Corporation v. CLS Bank, tighten requirements for obtaining
certain patents and make it easier for people to challenge the
validity of patents. And we have seen reports that the number
of new lawsuits filed by patent holders for infringement have
dropped.
Based on your experience in patent litigation, do you agree
with those who believe that the Court's recent decisions have
resulted in fewer complaints being filed? What other factors do
you believe may be contributing and to what extent, if any, do
you see these developments helping small businesses and
retailers affected by the abusive litigation practices?
Ms. Stoll. Thank you for your question, Senator.
I am familiar with those Supreme Court cases, of course,
and I am also familiar with the problems that you are
mentioning. And I can tell you that if I were fortunate enough
to be confirmed, I would apply Supreme Court precedent
faithfully to the facts before me. And I also would apply any
legislation that Congress enacted faithfully to the facts
before me.
Senator Franken. But you have no opinion on whether these
decisions have tamped down at least a little bit what the
effect of has this been.
Ms. Stoll. I do think that those decisions have made it
easier to show that patents are invalid and--or that they are
not eligible under--for patent validity under 35 U.S.C. Section
101.
I do think that it--those decisions have made it so
defendants have an easier time to present in their litigation
against patent owners, but I do not know whether there has been
a reduction in litigation. And, again, I would just emphasize
that I would follow whatever law Congress enacted.
Senator Franken. Sure. Ms. Ketchmark, as the Chairman said
earlier, in your career as a prosecutor, you tried crimes
against children and sexual assault cases on children.
As I understand it, these cases can pose unique challenges
as law enforcement and victims' advocates work together to
bring the perpetrator to justice while countering the impact of
the assault on the victim and it is impossible to overstate the
devastating effect that these assaults have on the victims.
In many parts of the country, prosecutors have recognized
the value of using a coordinated multidisciplinary approach in
these cases to keep victims safe and assist them in
participating in the prosecution. Child advocacy centers, or
CACs, are the center of the strategy, epicenter of it. These
centers bring together law enforcement, child services, mental
health professionals--I do not have to tell you this. I am
saying it for everybody else--to coordinate treatment for the
victims with the investigation and prosecution of child abuse
cases, and I understand that you served on the board of a CAC
for many years; is that correct?
Ms. Ketchmark. Yes, sir.
Senator Franken. Based on your own experiences in the
field, can you explain how CACs and other resources for
survivors of sexual assault and domestic violence aid in the
prosecution of these crimes and why is it so important that
local law enforcement and advocacy organizations have resources
like CACs?
Ms. Ketchmark. Thank you, Senator, for the question.
CACs--I am, obviously, an advocate of child advocacy
centers. I currently sit on the advisory board at the child
advocacy center in the northen part of Kansas City.
The focus of the child advocacy centers is to conduct a
forensic interview of the children. That is a one-time
interview that is coordinated with all members of, as you
mentioned, law enforcement, prosecution, counseling, medical,
and treatment disciplines so that the children are not going
from office to office repeating the trauma that they have been
through.
Senator Franken. Thank you.
Thank you, Mr. Chairman.
Chairman Grassley. Thank you, Senator Franken.
Now, Senator Tillis.
Senator Tillis. Thank you, Mr. Chair.
Ms. Ketchmark and Ms. Stoll, congratulations. Good to see a
proud group of supporters back behind you, as well.
I do have to tell you, in a relative short political career
of 8 years, this has already been a remarkable hearing because
it is the first time I have ever heard attorneys waive their
right to be able to make a long written statement.
[Laughter.]
Senator Tillis. So that already reinforces my positive
predisposition toward both of you before you came in here.
In all seriousness, congratulations. I look forward to
supporting your nomination.
Ms. Stoll, I have just a few questions. One of them relates
to the disturbing reports we have heard about the backlog of
veterans' claims that will come before your bench.
I know that the statutes limit the scope of review for the
Federal circuit when they are hearing veterans' appeals. They
give you a fair amount of latitude to set aside regulations
that are arbitrary, capricious, and I think, hopefully, that
means to streamline the process.
I think in 2013, about 13 percent of all the cases you all
heard were veterans' appeals, veterans' claims appeals.
Have you had an opportunity to look into this process and
do you have any thoughts or ideas on how we may be able to--
hopefully a lot will be cleared in pre-appeal, but the ones
that ultimately have to come before you, any thoughts on things
we can do to make this a priority and help clear the backlog
and do the right thing for the veterans?
Ms. Stoll. Thank you for your question and your interest in
that area of the law.
I have represented veterans in various pro bono veterans'
appeals before the Federal circuit and it is an area of law
that is important to me.
I am not that familiar with the problem you have mentioned,
but I can tell you that, if I were lucky enough to be
confirmed, I would do my best to learn everything I needed to
fairly and impartially decide those cases and do everything I
need to get totally up to speed on the veterans' appeals.
Senator Tillis. I hope you will make it a priority. In a
State that has as many veterans as some States have citizens,
it is personally very important to me and it is obviously
important to all veterans across the country.
I only have one other question. And, Ms. Ketchmark, I am
not asking you questions for a lack of interest, but I am
deferring to my Members and their very high regard for you and
since the matters that would come before you would not involve
North Carolina, I am just focusing a little bit more on Ms.
Stoll.
Ms. Stoll, I only have one final question. I think your
experience in intellectual property and patents is
extraordinary and I think it will be great experience to bring
to the bench. I did have a question about any experience that
you may have with respect to international trade or areas where
your past experience may be relevant.
Ms. Stoll. I did clerk at the Federal circuit and during
that time I was introduced to other areas of the court's
jurisdiction, including international trade. I think that
because I have such an extensive background in patent law, I am
hopeful that I will be able to start running quickly with those
kinds of cases and that the other areas of the court's
jurisdiction, including international trade, I will devote all
my efforts to try to get up to speed as quickly and efficiently
as possible.
Senator Tillis. Thank you. And by the way, I have kids and
I have for 8 years tried to get them to call me Your Honor and
they will not do it either. So you are right, Josh. Thank you.
Chairman Grassley. Are you done? Before you folks leave, I
want to bring up something to Ms. Stoll. This is not a
question. It is not anything you have got to do with.
But, you know, from the Merit Service Protection Board,
appeals go to the circuit you are going to be on. I have been a
long-time advocate of whistleblower protection and so that
appeal goes out.
So I want to make you aware of something and there is no
implication in my statement that you do not have to follow the
law. But if you look statistically at the number of
whistleblower cases that have been appealed to this circuit,
whistleblowers have a miserable record of winning. And I do not
know whether--I am just giving you a feeling that there is not
the proper--I know you are going to tell me, well, they are
just interpreting the law against the facts.
But I think there ought to be more careful, based on the
statistics of whistleblowers losing so many cases before it,
that there is a proper consideration of the importance of
whistleblowers in our system of government.
I guess I will leave it at that. That is not a lawyerly way
of expressing my view, but it is a political way of expressing
my view and I hope that you will be very careful about how you
handle whistleblower cases.
Ms. Stoll. Thank you, Chairman Grassley, for your interest
in that important area of the law. I have no background in
Whistleblower Protection Act, but I can tell you that, if I am
fortunate enough to be confirmed, I will do what I can to
faithfully apply the statute and award protection warranted.
Chairman Grassley. I want you to know that I did not expect
you to give an answer now and whatever you said now will not be
used against you.
[Laughter.]
Chairman Grassley. Thank you very much. You are dismissed.
Committee meeting adjourned. We will get questions to you
within 1 week. So all the Members be aware of the 1-week limit.
The meeting is adjourned.
[Whereupon, at 10:40 a.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Roseann A. Ketchmark
And Kara Stoll by Senator Cruz
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Roseann A. Ketchmark
And Kara Stoll by Senator Vitter
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF HON. DALE A. DROZD, NOMINEE TO BE A U.S. DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF CALIFOR-NIA; HON. ANN DONNELLY, NOMINEE TO
BE A U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK; LAWRENCE
J. VILARDO, NOMINEE TO BE A U.S. DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF NEW YORK; AND, LaSHANN DeARCY HALL, NOMINEE TO BE A U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
----------
WEDNESDAY, MAY 6, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:18 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Thom Tillis
presiding.
Present: Senators Tillis, Schumer, Klobuchar, and Franken.
OPENING STATEMENT OF HON. THOM TILLIS,
A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Tillis. Good afternoon, everyone. We are going to
go ahead and get the Committee started. I want to welcome you
all to what is, I believe, the fifth nominations hearing by the
Judiciary Committee.
Today we will hear from four nominees to the Federal
District Courts: Dale Drozd, to be United States District Judge
for the Eastern District of California; Ann Donnelly, to be
United States District Judge for the Eastern District of New
York; Lawrence Vilardo, to be the United States District Judge
for the Western District of New York; and, LaShann DeArcy Hall,
to be the United States District Judge for the Eastern District
of New York.
Welcome to you all and especially a welcome to Ms. Hall's
little daughter out there. Thank you for joining us.
I know your family must be very proud. You should be. This
is quite an honor for you to come before this Committee for the
nominations process.
I do have a statement from the Chairman that I will submit
for the record.
[The prepared statement of Chairman Grassley appears as a
submission for the record.]
Senator Tillis. At this time, I believe that we will go
directly to Senator Boxer. So, Senator, if you would like to
introduce your nominee.
STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM THE STATE
OF CALIFORNIA, INTRODUCING HON. DALE A. DROZD, NOMINEE TO BE A
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA
Senator Boxer. Mr. Chairman, thank you so much, Members of
the Committee, nice to be here. I am honored to be here.
Before I introduce, formally, Judge Drozd, and introduce
you to his family, I want to thank you so much for this,
because we have got a serious problem in the Eastern District.
It has been declared a judicial emergency. Cases are piling up.
We do not have enough judges to review them.
This is an area of the State that is growing rapidly. And
according to the Judicial Conference, there are 1,000 cases per
active judge in the Eastern District--1,000 cases per active
judge--one of the highest caseloads in the Nation.
With only one acting judge sitting in Fresno, judges in
Sacramento have had to take over some of the civil cases. Now,
this is a district where the Judicial Conference has
recommended doubling the number of judgeships to just handle
the current caseload.
We just cannot allow this seat to be vacant any longer
because as we all know, justice delayed is justice denied, and
that is happening to too many Californians.
Fortunately, we have a real consensus candidate for this
vacancy and I would ask Judge Drozd and his wife, Janette, and
their two sons, Doug and Paul, to stand, please, and just wave
to the Members.
We all know how important family members are to those who
seek public office and we welcome them.
The Judge has been serving as a magistrate judge on the
U.S. District Court for the Eastern District since 1997. Since
2011, he has served as Chief United States Magistrate Judge for
the Eastern District.
Thirty-five years ago he served as a law clerk to Judge
Lawrence Karlton, Judge of the United States District Court for
the Eastern District. Prior to taking his position as a judge,
he worked in private practice in our State's capital,
Sacramento.
The Judge received his bachelor's degree in 1977 from Cal
State University at San Diego and he won his law degree from
the University of California at Los Angeles School of Law,
where he was a member of the Order of the Coif.
His 18 years on the bench serving the people of the Eastern
District and his previous years in private practice make him an
excellent candidate to fill this vacancy.
In closing, I am proud to be here today with Judge Drozd,
who received a unanimous ``well qualified'' rating from the
American Bar Association. I would like, again, to thank this
Committee for holding this hearing and moving forward on this
important nomination, and I look forward to working with you as
the process moves forward.
Mr. Chairman, thank you for your courtesy.
Senator Tillis. Thank you, Senator Boxer. I know you have a
very busy schedule. Of course, you are welcome to stay as long
as you can, but feel free to leave when you deem it necessary.
Senator Schumer.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK, INTRODUCING LAWRENCE J. VILARDO,
NOMINEE TO BE A U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
NEW YORK, AND HON. ANN DONNELLY, NOMINEE TO BE A U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Senator Schumer. Thank you. Good morning. Good afternoon.
Time flies when you are having fun.
Thank you, Chairman Tillis, Senator Franken, Senator
Gillibrand, my colleague in New York, and Senator Boxer, my
dear friend since 1982 when we both were in Congress together.
I want to thank Chairman Grassley for scheduling this
hearing. These nominees have been waiting patiently for a long
time. I am thrilled that the Committee is finally moving
forward with their nominations. It is important to them, but
more important to the districts they serve, which need them
desperately.
Three of the four nominees before our Committee have been
nominated for seats designated as judicial emergencies. Now,
that does not mean something like there are a whole lot of
fires or robberies. It means we do not have enough judges on
the bench to cover the cases and the backlogs are horrible.
The fourth, Mr. Vilardo, from my home State, from Buffalo,
is nominated to the court where there are no currently active
judges sitting. That is how bad this backlog is. Buffalo has
one of the busiest Federal court systems in the country and
also one of the worst backlogs of cases. It can take 5 years--5
years for a case to go to trial. Imagine how long you would
have to wait for justice. It is a serious issue.
So I am grateful, Mr. Chairman, that we are taking a step
forward and addressing it today. There are no more important
values than the speedy application of justice and the right to
petition the Government for redress of grievances and, frankly,
neither of these can be achieved without judges on the bench.
Western New York has a backlog of cases and a current
dearth of judges. We need a candidate of Mr. Vilardo's
experience and quality to get approved by this body with all
due speed so this issue can be addressed.
So now let me turn to the introduction of the two
outstanding lawyers whom I have had the pleasure and privilege
of recommending to the President for nomination.
First, Lawrence J. Vilardo, for the Western District, which
is mainly Buffalo, Rochester, and the western section of New
York. And many people from New York City and its area forget
that we have a huge population Upstate and the Western District
has millions, certainly over 2 million people who live there,
bigger than some States.
Mr. Vilardo is a true Buffalonian, you can tell just by
talking to him, and he is going to be a credit to the bench in
his hometown. He received his bachelor's degree from Canisius
College, a great Western New York Institution that I have had
the pleasure of visiting many a time. He graduated summa cum
laude.
He then attended Harvard Law School, graduated magna cum
laude. Having gone there, I know how hard it is to graduate
magna cum laude at Harvard Law School. I did not.
[Laughter.]
Senator Schumer. While in law school, he was an editor of
the Harvard Law Review, a distinction he shares with our
President.
Following his graduation from law school, Mr. Vilardo
clerked for the Honorable Irving Goldberg of the Court of
Appeals for the Fifth Circuit in Dallas, Texas, but fortunately
for Western New York, he quickly went back home and founded one
of the leading law firms of the region.
Throughout his distinguished career, Mr. Vilardo has always
made time to give back and help mentor and inspire younger
lawyers. Prior to starting his own firm, he served as an
appellate practice faculty member at SUNY Buffalo School of Law
and as a constitutional law faculty member at Canisius Law
School.
He also served as a senior editor for the American Bar
Association's litigation journal. He is a frequent speaker on
appellate justice and legal ethics, among other topics, at law
presentations and bar association seminars.
Mr. Vilardo's credentials are certainly excellent,
something I look for in all judges. I look for three criteria
when I choose judges. They are excellent, they should be
legally excellent. I do not want too many political hacks or
any political hacks on the bench. They should be moderate. As
you might imagine, I do not like judges too far right, but I
also do not like them too far left because judges at the
extremes tend to want to make law rather than follow the law.
And I look for diversity. When we can have a diverse bench, it
is a great thing and young kids can look up to that bench and
aspire to be on it one day themselves.
So he meets the criteria of excellence and of moderation
and he is respected by practitioners and judges across the
political and ideological spectrum for his even temperament and
fair-minded way of thinking. And he is fundamentally a classic
Buffalonian. I just love Buffalo. I love going up there.
What is a classic Buffalonian? Salt of the earth, honest,
grounded. Buffalo is in Larry's bones. It is part of who he is.
And like so many other people from the region, the city has
made him tough, level-headed, fair, and decent.
So Western New York will be incredibly lucky to have him on
the bench.
Now, let me turn to Judge Ann Marie Donnelly, who currently
serves in the New York State Courts. Judge Donnelly is a
graduate of the University of Michigan, received her JD from
Ohio State University College of Law. Upon graduation, Judge
Donnelly joined the New York County DA's office, one of the
finest State Prosecutor Offices in the Nation.
She served for a quarter of a century and her reputation
there is legendary. When you mention that you know Ann Donnelly
to anyone who has served in DA Morgenthau's office, one of the
finest DA's offices in the country, they say she was one of the
best. She is really admired, even though she has been out of
that office for quite a while now. She accumulated recognitions
and awards along the way. She worked in the Appeals Bureau and
appeared regularly in the Appellate Division and the New York
Court of Appeals.
In 1989, she was assigned to the Major Offense Career
Criminal Program, a specialized bureau that targeted repeat
offenders and violent felons. And 2 years later, Judge Donnelly
was promoted to senior trial counsel and became a member of the
Sex Crimes Prosecution Unit.
In 2005, she was named bureau chief of the Family Violence
and Child Abuse Bureau; and, in 2009, she joined New York
State's Court of Claims.
Over the past 6 years, her assignments have the supreme
courts, which is what New York calls its trial courts, of three
different counties, including New York County, where she
currently serves hearing criminal cases.
Her stellar academic record, her lengthy career in public
service, years she has spent honing her judicial acumen, all
clearly qualify Judge Donnelly as an excellent candidate for
the bench.
However, Judge Donnelly has more than just a brilliant
resume. She is, at her core, a kind, thoughtful and
compassionate person. Anyone who knows her or who has
interacted with her even briefly knows she is fair and open-
minded, has the temperament to make her well suited to be a
Federal judge. She cares about the law and the legal
profession. In addition, her many years of judicial and
government service, in addition to those, she has helped
cultivate the next generation of lawyers. She is a fellow in
the American College of Trial Lawyers, regularly judges mock
trials Moot Court competitions. She serves as a judge for the
Jerome Prince Memorial Moot Court competition at Brooklyn Law
School. She is even on the advisory board for the Thurgood
Marshall mock trial program. That is for seventh and eighth
grade students as they prepare and try a criminal case.
I also must add, Mr. Chairman, with the confirmation of
Judge Donnelly and Ms. DeArcy Hall from the Eastern District,
our bench will remain one of the most diverse judicial
districts in the country.
I want to say one more thing. She has a great family,
because I know Ann well, and she will introduce them, but it is
a great sight to see them all from all over, Pennsylvania,
Massachusetts. She was raised in Ohio. Her father was a mayor.
He is looking down from heaven and very proud, I know that.
So I am going to ask just the whole greater Donnelly family
to stand. You will see it is a great sight. Please get up, all
you Donnellys. There they are in their glory and they are a
great family. I know many of them. So nice to see them all here
and so proud of Ann's great accomplishment today.
So let me just say, Mr. Chairman, you can see these are two
immensely qualified candidates for the Federal bench. They are
erudite, they are experienced, they are deeply respected
throughout New York. Beyond that, each one has a spirit for
public service that shines through in their respective roles as
teachers and leaders in the legal community.
I hope, I pray that we can move quickly to move them
through the Committee and onto the Senate floor.
Finally, I will leave the introduction to Senator
Gillibrand, who nominated Ms. DeArcy Hall, but I just want to
acknowledge that this is another terrific nominee and I commend
Senator Gillibrand for recommending her.
Thank you, Mr. Chairman. Thank you to our judicial
candidates and for their greater families that have come along
to share their joy.
Senator Tillis. Thank you, Senator Schumer.
Senator Gillibrand, you may introduce your nominee.
STATEMENT OF HON. KIRSTEN E. GILLIBRAND, A U.S. SENATOR FROM
THE STATE OF NEW YORK, INTRODUCING LaSHANN DeARCY HALL, NOMINEE
TO BE A U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW
YORK
Senator Gillibrand. Thank you, Mr. Chairman. Thank you to
Senator Schumer for his excellent introduction of our nominees
today.
I have the very special honor to be here to introduce
LaShann DeArcy Hall and offer my strong support for her
nomination to the United States District Court for the Eastern
District of New York.
I would like to thank President Obama for acting on my
recommendation and nominating another superbly qualified female
jurist to the Federal bench.
Ms. DeArcy Hall's credentials are outstanding and her
experiences as a lawyer are varied and diverse. Our country
would be stronger with women like LaShann DeArcy Hall serving
on the Federal bench.
Ms. DeArcy Hall is currently a partner at the international
law firm of Morrison & Foerster, where she specializes in high
stakes, complex commercial litigation. She has years of
valuable experience as a public servant, including time serving
as a commissioner with the New York State Joint Commission on
Public Ethics, which oversees New York State's and executive
and legislative branches' compliance with ethics and lobbying
laws and regulations.
In 2011, Ms. DeArcy Hall was appointed by Mayor Bloomberg
as a commissioner of the New York City Taxi and Limousine
Commission. She also served as a member of the Board of
Trustees for the Neighborhood Defender Service of Harlem and
she is a member of the Howard University School of Law Board of
Visitors.
She is a graduate of Howard University School of Law and
she served as a member of the United States Air Force. In other
words, LaShann DeArcy Hall is a highly accomplished lawyer who
has chosen to use her intellect and skills for the greater good
of public service.
For her work in promoting diversity in the legal
profession, Ms. DeArcy Hall was honored by the New York City
Bar Association as the recipient of the 2009 Diversity Champion
Award. And if her nomination is approved, her presence would
add much needed diversity, another female voice, to our Federal
bench.
I have no doubts that Ms. DeArcy Hall's experience and
qualifications make her a superb candidate for this judgeship.
She is dedicated to serving the citizens of New York and she is
committed to making her city, State, and Nation more fair and
just.
LaShann DeArcy Hall will be an excellent jurist on the
Federal bench and I was very honored to recommend her for this
position and I urge swift approval of her nomination.
Thank you, Mr. Chairman. Thank you, Committee Members.
Senator Tillis. Thank you, Senator Gillibrand. Again, I
know you are busy. So please feel free to leave when you need
to.
If we could have the nominees come forward and stand. If
you will please raise your right hand.
[Nominees are sworn in.]
Senator Tillis. You may be seated.
Before we get started, we will provide you all with an
opportunity, if you wish, to make an opening statement and to
introduce your family. We will actually just start from left to
right to make it easy. So we will start with you, Mr. Drozd.
STATEMENT OF HON. DALE A. DROZD, NOMINEE TO BE A
U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
CALIFORNIA
Judge Drozd. Thank you, Senator.
I would first like to take the opportunity to thank Senator
Boxer for her very gracious introduction, as well as her
recommendation of my nomination to the President.
I would also like to thank Chairman Grassley and Ranking
Member Leahy, as well as the rest of the Committee, for
scheduling this hearing, as well as to Senator Boxer's staff,
her judicial selection committee, and Senator Feinstein and her
staff; and, finally, of course, to the President for bestowing
on me the honor of the nomination itself.
I am lucky enough to have with me quite a few family and
friends today, many of whom made their way all the way from
California. The most important, of course, my wife of 32 years,
Janet Vine, who has steadfastly supported me and our sons in
everything that we have ever done.
Also, my son Doug, our oldest, who graduated from Claremont
McKenna College and works in Sacramento, is here with us, as is
my son, Paul, who was able to take a few days off of his final
quarter at Cal-Poly Pomona and catch the red-eye flight and get
in this morning.
I also have with me my sister-in-law and brother-in-law,
Dave and Amanda Hall from West Sacramento; my cousin,
Christine, and her husband, Rich, from Phoenix, Maryland; my
niece, Lauren, who is attending graduate school here at
Georgetown University; our cousin, Jennifer Nebo, who, along
with our cousin, James, her husband, and their newborn, Carter,
reside here in Washington, DC; and, finally, our longtime
family friend from here in Washington, Bobby Masally, is also
here with us.
Not here, but I know watching on the webcast today, are my
brother, Don, in Orange County, California, and his entire
extended family in the Pacific Northwest; my sister, Lisa
Tobey, along with her family, from Minnetonka, Minnesota, I
know is watching, as are all of them.
My brothers and sisters-in-law, Jimmy, Janice, Harry, and
Diane back in Sacramento; and, all of my hardworking
colleagues, chamber staff, and clerk's office staff in the
Eastern District of California.
Finally, with me in spirit here today I know are my mom,
who passed away in 2013, as well as my dad, who passed away in
2004. My dad was quite an accomplished individual. He served on
a destroyer escort at the end of World War II, came out of the
Navy in Southern California, went to work as a plumber at the
LA County USC Medical Center and eventually became the
executive director of the entire hospital. I know they would be
proud.
Senator Tillis. Thank you, Judge Drozd. I know that from
time to time, when I am on C-SPAN, my mom still posts on
Facebook how proud she is. So, I am sorry that your parents are
not here to see this, but congratulations, Judge Drozd.
Judge Donnelly.
STATEMENT OF HON. ANN DONNELLY, NOMINEE TO BE A U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Judge Donnelly. Thank you, Senator Tillis. I would like to
thank Chairman Grassley and Ranking Member Leahy for scheduling
this hearing.
Senator Schumer, I so appreciate that kind introduction.
I would like to thank the President for the honor of this
nomination.
I would like to congratulate my fellow nominees on their
nominations and their accomplished careers.
I am very lucky, as Senator Schumer said, to have quite a
few people here with me today. First, is my husband of 30
years, Michael Toth. We are here with our--we are very proud of
our two daughters, Rebecca Toth and Margaret Toth. They are
here with their boyfriends. Maggie is here with Andy Worley and
Becky Toth is here with Dan Jones.
My mother, my wonderful mother is here from Ohio, Mary
Donnelly. My sister, Sarah Hopkins, is here with her husband,
Dr. Jeffrey Hopkins, and their three wonderful girls, Callie
Hopkins, Josie Hopkins and 5-year-old Jane Hopkins.
My brother, Dr. Thomas Donnelly, and his wife, Dr. Heidi
Donnelly, my beloved sister-in-law, are here with their
wonderful daughter, Imelda Donnelly. My dear friend, Audrey
Moore, is here, as is my dear friend and mentor, Linda
Fairstein.
My two brothers, Bill Donnelly and John Donnelly, are back
in Ohio with their families. And my wonderful mother-in-law,
Mary Toth, is in Michigan.
I would also like to acknowledge my wonderful colleagues on
New York State Supreme Court and for all of their guidance and
friendship in my time as a judge.
And finally, I would like to mention two people that I wish
very much were here, my wonderful father-in-law, Edward Toth,
and my father, Jack Donnelly, who would have had an excellent
time at this hearing and I know that he is--I know that he is
watching.
And I appreciate the opportunity to appear before you and I
look forward to answering your questions.
Senator Tillis. Thank you, Judge Donnelly.
Mr. Vilardo.
STATEMENT OF LAWRENCE J. VILARDO, NOMINEE TO BE
A U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
NEW YORK
Mr. Vilardo. Thank you, Mr. Chairman. And thank you to the
Members of the Committee, especially Chairman Grassley and
Ranking Member Leahy, for giving me an opportunity today that
until now I did not even dare to dream about.
I would like to thank the President for nominating me, and
I would like to especially thank Senator Schumer for that very
warm and generous introduction and also for having the
confidence in me to recommend me to the White House.
With me today is the love of my life, my wife of 32 years,
Jeanne Vilardo; our daughter, Dr. Brigid Vilardo Lyons, who is
a child psychologist practicing in Western New York, and her
husband, Patrick Lyons, who is more like a son than a son-in-
law and is working with the Social Security Administration in
Western New York.
Our daughter, Lauren Vilardo is here. After 2 years
volunteering with the Jesuit Volunteer Corps, Lauren decided
that she wanted to serve under-served populations by working in
the medical profession. And so she is studying to be a doctor
by taking the biology and chemistry classes that are required
for that. She was a physics major in college at the University
of Buffalo.
And also our son, Alexander Vilardo, who is working as a
volunteer this year at his and my alma mater, Canisius High
School, as part of their alumni volunteer corps. Alexander will
attend law school at the University of Buffalo this fall.
Also, my nephew is here from New Jersey, Carroll Legg, and
today is his birthday. So happy birthday, Carroll.
With me today are some of my very closest friends, former
Ambassador Howard Gutman and his wife, Dr. Michelle Loewinger.
From the class of 1973 at Canisius High School: Jim Shed, John
McGrath and Bill Parachek.
And a recognition of a few people who are not here. First
and most important, my parents. Both of them are no longer with
us. Neither of them had any more than a high school education,
but both of them had an appreciation of how important education
is, so that they insisted that their four children attend
college and they encouraged us to go even further than that. I
know they are watching from a better place.
I would also like to acknowledge, in that regard, my
brothers, Mark Vilardo, Dr. Joe Vilardo, and Dr. Michael
Vilardo.
I would also like to acknowledge my in-laws, Mr. and Mrs.
Carroll Gambino, who are watching on the Internet, if they can
figure how the computer works.
[Laughter.]
Mr. Vilardo. And I would also like to acknowledge all my
family and friends back in Buffalo who are watching, especially
my partners, our associates, and the staff at the best law firm
anyone could dream about working at, Connors & Vilardo.
Thank you, Mr. Chairman.
Senator Tillis. Thank you, Mr. Vilardo. And I know I speak
on behalf of all Americans for thanking Buffalo for the chicken
wing.
[Laughter.]
Senator Tillis. Football has never been the same.
Ms. Hall.
STATEMENT OF LaSHANN DeARCY HALL, NOMINEE TO BE A U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Ms. Hall. Thank you, Senator Tillis. I would like to thank
Chairman Grassley, Ranking Member Leahy, and the entire
Committee for scheduling this hearing today.
My heartfelt thanks go to Senator Gillibrand for her
recommendation and for her kind introduction, and as well to
Senator Schumer for his support.
Of course, I must extend my thanks, as well, to President
Barack Obama for the honor of his nomination.
I hope that you will indulge me just a few minutes more as
I recognize my family and friends.
Thank you to my husband, Courtney Caesar Hall, for his
unyielding support through all of my endeavors, personally and
professionally. To my greatest gift, my daughter, Jayden Hall,
who reluctantly missed chess class to be here today.
To my inspiration and my best friend, my mother, Patricia
DeArcy. To my stepchildren, Terrence, Rachel, and Alexander
Hall. My sister, Motique Iudeli, and my mother-in-law, Doris
Hall.
I would also like to say thank you to my dear friends who
are here today, Kedric Payne, Monica Azare, and Saee Muzumdar.
As well, to my partners and colleagues at the wonderful law
firm of Morrison & Foerster, including my friend and partner,
Jamie Levitt, my colleagues, Monica Castro and Joanna Zdanys,
who are each here today.
I must also extend a thank you to the entire Howard
University School of Law family, many of whom came here today
to support me, including my classmates, Eugene Akers, Aaron
Taylor, Brandy Harden, Zahai Marshall, and Tamika Taylor, as
well as Dean Coombs, Dean Mageahy, and my trial ad professor,
Professor Goode.
Finally, a thank you to all of my friends and family who
have supported me personally and professionally throughout the
years, many of whom are watching these proceedings from home.
Thank you.
Senator Tillis. Thank you all. And I would tell all the
family and friends, again, welcome. I know it is a proud moment
for you. It should be.
Judge Drozd, I am going to start with you on questions. You
presided over Greene v. Solano County Jail, a case where the
maximum security inmate claimed that not being allowed to
attend religious services was a violation of his religious
liberty under the Religious Land Use and Institutionalized
Persons Act and the First Amendment.
I would like to have you focus your analysis under that
Act. You held that not being allowed to attend religious
services was not a substantial burden on an inmate's practice
of religion, but the Ninth Circuit disagreed and also remanded
to find whether a ban on group worship was the least
restrictive means under the RLU--I hate acronyms--Religious
Land Use and Institutionalized Persons Act.
Do you agree with the Ninth Circuit's reasoning?
Judge Drozd. Senator, of course, I was reversed in--my
finding and recommendation was adopted and I was reversed.
Senator Tillis. I know going into it you did not agree with
them.
Judge Drozd. I was reversed in that instance and, of
course, I am bound by the decisions of the Ninth Circuit and
would apply the holding in Greene and all future cases--and
have and do.
Senator Tillis. Where would you have disagreed on the
reasoning?
Judge Drozd. Senator, in Greene, I will say this. My
recollection of that case is that the pro se plaintiff's
pleadings were relatively challenging to characterize and to
decipher, and that is quite often the case. I did my best to
characterize what I believed to be the arguments and when the
case went up on appeal, the Court of Appeals was able to
discern a somewhat different argument, I felt, than what I
believed that I had been presented with at the time.
I am bound by their determination and would follow it.
Beyond that, I have no other thoughts.
Senator Tillis. Thank you.
Ms. Hall, in your questionnaire, you stated that you worked
on a pro bono death penalty case early in your career. Can you
describe the work you did on that case?
Ms. Hall. Thank you for the question, Senator. My role on
that case involved an argument with regard to jury selection
and the argument specifically went to the ineffective
assistance of counsel in the jury selection, as well as the
improper conduct of the prosecutor in that case. And in that
role, I was an advocate advocating on behalf of my client.
Senator Tillis. And could you give me an idea of your views
on the constitutionality of the death penalty?
Ms. Hall. I believe that the constitutionality of the death
penalty is well settled and it is deemed constitutional.
Senator Tillis. And if confirmed, would you be able to
impose the death penalty on a criminal defendant, if required
by law?
Ms. Hall. Yes, I would.
Senator Tillis. Thank you.
Mr. Vilardo, I think throughout your career you have had
some involvement with supporting members of political parties
as an advisor, donor or fundraiser. There is, of course,
nothing wrong with that.
This said, should you be confirmed, your political history
might concern some litigants who appear before you. So what
assurances can you give this Committee, if confirmed, your
decisions will be grounded in legal precedent and the text of
the law rather than any political ideology?
Mr. Vilardo. Thank you for that question, Senator. I really
have been involved in politics precious little in Western New
York. It has usually been when a friend has asked me to get
involved.
I am proud to say that I have support from both sides of
the aisle in Western New York and the Republican support is
every bit as strong as the Democratic support. And I can assure
you that once confirmed, if I am fortunate enough to be
confirmed, lifetime tenure means that you owe nothing to anyone
and I would owe no debts, I would follow the law, I would
follow the rule of law, I would follow the precedent from
controlling jurisdictions by which I am bound and apply the law
as dispassionately as possible.
Senator Tillis. Thank you. And, Judge Donnelly, from your
questionnaire, it appears that you have limited experience with
civil matters either in practice or as a judge.
If confirmed as a Federal district court judge, you will be
presiding over both civil and criminal matters. What have you
done or will you do to prepare yourself for that side of the
law?
Judge Donnelly. Thank you for that question, Senator
Tillis. In my 25 years as an Assistant District Attorney and in
my 6 years as a State court judge, I have been lucky to have
been challenged by very complicated cases and have been
required to get up to speed quickly on issues that I was not
previously familiar with, such as complex securities fraud,
white-collar cases, and violent crime, as well.
With respect to getting up to speed on civil matters, I am
committed to hitting the ground running. I plan to take
advantage of all of the resources that are offered by the
Federal Judicial Center, as well as consulting with my
colleagues on the Federal bench, and I look forward to that
challenge.
Senator Tillis. Thank you.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman, and
congratulations on your meteoric rise.
[Laughter.]
Senator Tillis. Say that again, my mom is listening.
[Laughter.]
Senator Franken. Mrs. Tillis, congratulations on having a
son who is Chairman this early in his Senate career.
You are welcome.
[Laughter.]
Senator Franken. I do not think we have had this much
family and friends here at a hearing. So congratulations to all
of you for having a lot of friends.
[Laughter.]
Senator Franken. Ms. Hall, in addition to your considerable
experience in civil litigation and commercial law, your
background also reelects a commitment to public service.
Former Mayor Bloomberg appointed you to serve on the New
York City Taxi and Limousine Commission, for example. But one
experience in particular caught my eye, which is your service
on the New York State Joint Commission on Public Ethics, which
is tasked with ensuring compliance with New York State ethics
and lobbying laws.
Can you tell us how your experience on that commission,
where you participated in confidential hearings and considered
sensitive information, will influence your work as a judge?
Ms. Hall. Thank you, Senator. I believe that my work on the
New York State Joint Commission on Public Ethics, as well as my
public service on the Taxi and Limousine Commission and my
service in the United States Air Force, has helped me develop
the temperament that I think is important and necessary for a
district court judge.
In particular, I believe that I had to demonstrate
fairness, integrity, thoughtfulness, and hard work in my
service on both of the commissions, as well as my time in the
United States Air Force, and I believe that I would take that
temperament, if given the opportunity, in my service on the
Eastern District of New York.
Senator Franken. So I take it that you think that fairness,
integrity, thoughtfulness and hard work are good qualities to
have in a judge.
Ms. Hall. Yes, I do.
Senator Franken. I was trying to trick you.
[Laughter.]
Senator Franken. Mr. Vilardo, I would like to find out more
about your experience as it relates to judging. My
understanding is that you clerked for Judge Irving Goldberg on
the Fifth Circuit Court of Appeals.
Mr. Vilardo. Yes, sir.
Senator Franken. What did that perspective teach you about
sitting behind the bench and weighing the arguments of two
sides equally? What other experiences put you in a position of
arbiter rather than advocate?
Mr. Vilardo. Thank you for that question, Senator. Yes. The
experience clerking for Judge Goldberg was a fabulous
experience. It taught me about fairness and impartiality. It
taught me about waiting and listening to everything that the
litigants had to say and making a decision afterwards.
It taught me about making decisions, too. It is so
important to make decisions quickly, not so quickly that you
have not given consideration to all the arguments, but quickly
enough that you move cases along, because as Senator Schumer
said earlier, there is quite a backlog in the court. So I was
taught that by my clerkship experience.
I have also been fortunate enough to have served as a
hearing officer and as an arbitrator in a number of cases and
that has taught me the perspective of not being an advocate, of
looking down the middle and being fair to both sides, and,
again, not making up your mind until everybody has said
everything that they had to say, and then deciding.
Thank you.
Senator Franken. Thank you. Judge Donnelly, as the Chair
said, you have a lot of experience in criminal cases, not just
in your current role as judge, but in your career as a
prosecutor. But nonetheless, I would imagine that sentencing
convicted defendants must be one of the most difficult jobs
that you face as a judge.
Could you talk about the approach you take to sentencing
and how that has been informed by your time as a prosecutor
and, looking forward, how you would balance the need for
sentencing with the need for rehabilitation in particular
cases?
Judge Donnelly. Thank you for that question, Senator
Franken. Yes, you are correct that imposing sentence in a
criminal case is among the most difficult parts--difficult
tasks that a judge faces and the factors the judge is obligated
to consider when determining the sentence to impose includes
many factors, the severity of the crime, the effect on the
community where I am currently sitting in Manhattan, the effect
on the particular victim, and the defendant's background, as
well.
The cases that I have been presiding over most recently
often involve devastating crimes to our communities, involving
gang violence and murders, and the sentences are necessarily
heavy.
But frequently in our courts we see very young defendants
and that is the place where I believe that our judicial system
has the opportunity to perhaps turn someone around.
In New York, you have the opportunity of affording a
defendant youthful offender treatment, which I have done on
many occasions. It is certainly a risk to the--that a judge
takes when you do that, but it is certainly one of the tools
that you have to perhaps save someone from what is bound to be
a life of crime if they are not turned around.
Senator Franken. Thank you very much. Sorry, I did not get
to you, Judge, but----
Senator Klobuchar. I will deal with him.
Senator Franken [continuing]. Senator Klobuchar--I do not
envy you.
[Laughter.]
Senator Franken. Thank you, Mr. Chairman.
Senator Tillis. Senator Klobuchar, would you mind--we have
no Republican Members present now--if I maybe ask just a couple
more questions before you proceed?
Senator Klobuchar. That is fine.
Senator Tillis. Thank you.
Judge Drozd, when you were a defense attorney, you were
quoted in an article saying--I believe this is the correct
quote--``Now the judge is almost irrelevant. You can bargain
around the judge. You almost have to. When drug defendants
plead guilty in Federal court, prosecutors usually drop some of
the counts charged in an indictment, a move that frequently
lowers the maximum possible sentence. In some cases, they drop
all counts and substitute a charge carrying a lesser
sentence.''
Does that accurately reflect your opinion and do you
believe there is any value in mandatory minimums? And if
confirmed, will you apply the mandatory minium sentences?
Judge Drozd. Let me start with the end of the question
first, Senator. I most definitely will apply all applicable
mandatory minimum sentences where called upon by the law.
In terms of that quote in that newspaper article from
probably 20-some years ago, I was speaking as an advocate. That
was my job at the time. And I certainly understand the
difference between my job at the time and the job that I have
served for the last 18 years as a United States magistrate
judge and I think my record shows that.
But I think actually what I was addressing in those
comments, in large part, had to do with application of what was
then the brand new United States sentencing guidelines; a
little bit less on mandatory minimums, although to an extent it
was.
And my comment was meant to just point out that charge
bargaining at the outset was affecting judicial discretion in
terms of addressing an appropriate sentence in an entire case
and that the discretion had, at that point, seemed to have been
moved more into the hands of the Assistant United States
Attorney who is electing what charges to bring, then being left
to the judge at the end of the case when we knew what the
result was going to be, and I expressed some concern about
that.
Senator Tillis. Ms. Hall, do you believe a judge's
background has an impact on their judicial decisionmaking and
how will your background inform decisions that you will make as
a judge?
Ms. Hall. Thank you for the question, Senator. I believe
that a variety of experiences that we all have will inform the
viewpoint with which or the lens with which we view the world.
I do not believe, however, that my background will have any
direct impact on any determination that I make, if I were
fortunate enough to be confirmed as a judge.
Instead, what would guide me as a judge would be the rule
of law and I pledge today that if I have the opportunity to be
confirmed, that I would adhere to the rule of law.
Senator Tillis. Thank you, Ms. Hall.
Judge Donnelly, can you identify any mistakes you made
early in your judicial career that will help you as you
transition into the Federal judgeship?
Judge Donnelly. Well, the transition from advocate to a
judge is definitely a learning curve and I have not catalogued
the mistakes that I have made. I am sure they are--I am sure
they exist.
But my judicial philosophy in my 6 years on the New York
Supreme Court has been one of a fidelity to the rule of law, a
respect for the people who appear before me, according every
witness, litigant, juror dignity, making sure that my rulings
are transparent so that the reasoning is clear, and a work
ethic which involves a thorough knowledge of the applicable law
and the factual record, and I believe that adherence to that
philosophy minimizes the mistakes that a judge is apt to make.
Senator Tillis. Thank you, Judge Donnelly.
Finally, Mr. Vilardo, you have represented numerous targets
or witnesses in False Claims Act investigations. While
attorneys must diligently and zealously represent their
clients, your practice involving the False Claims Act has been
focused on defending against whistleblowers' allegations.
If confirmed, how will you handle such actions if they are
brought before your bench?
Mr. Vilardo. Thank you, Mr. Chairman, for that question. I
will handle them the same way I handle all cases brought before
me; that is, fairly and impartially by applying the rule of
law.
District judges are not elected by anyone. They do not sit
on a panel with other judges who can hold them in check. They
do not have en banc courts to look at what they do. They decide
cases based on what the law is, not on what the law should be,
not on what they think the law ought to be or what they wish
the law should be.
So handling whistleblower cases would be just like handling
any other case; that is, applying the rule of law, applying
precedent, and doing so fairly and impartially.
Senator Tillis. Thank you, Mr. Vilardo.
Senator Klobuchar, thank you for your indulgence.
Senator Klobuchar. Thank you.
I will start with you, as I promised Senator Franken, Judge
Drozd. I actually nominated--my first Federal judge here that I
recommended to the President was also a magistrate. So I know
how important that job is and I also know that you are the
chief magistrate in one of the busiest districts in the
country.
So my question is just more about how you see the judicial
system right now with your vast experience, what you see as
some of the biggest challenges facing our judicial system.
Judge Drozd. Well, Senator, thank you for that question.
Maybe a little bit more of a parochial focus.
Senator Klobuchar. That is allowed.
Judge Drozd. Since our nose stays close to the grindstone
in the Eastern District of California. We really are in a
crisis situation. We have had one of the heaviest weighted
caseloads in the country per active judge for over a decade
now.
That leaves us with an average pending caseload per active
district court judge of--my understanding is over 1,300 cases
pending per active district court judge right now. That has
tremendous impact on our ability to deliver justice within our
district.
We have done the best we can with the assistance of the
administrative offices and resources that we have been provided
and we are doing pretty well. We are the second most productive
district court in terms of dispositions per year in the country
and we have been in the top five, I think, for most of the last
decade, as well.
So we are doing well, but that--we are performing well in
terms of efficiency. I do not think we can perform any more
efficiently. We have maxed out on that score. And the situation
can only get better with additional resources.
So for us, in our district, that is the biggest challenge
and the biggest problem with our ability to deliver justice.
Senator Klobuchar. Thank you. And I know that actually
Chairman Grassley has been trying to make some changes to get
the judges where the work is and I have actually joined in some
of those efforts with Senator Feinstein. Minnesota has actually
had one of the heavier caseloads in past years. I do not know
where we are right now. But when we were trying to get
temporary judges in place or other things, looking at it that
way. So thank you for your point.
Judge Donnelly, thank you for your service. I know that you
actually, also, in your very extensive background here, you
were chief of the Family Violence and Child Abuse Bureau in the
New York District Attorney's Office and you saw firsthand the
challenges we face in this country with the scourge of domestic
violence and child abuse.
I worked on those as a prosecutor for 8 years, those
issues. I know your docket will be different now, but how does
that experience inform your future as a Federal judge, if and
when, and we hope you will be, confirmed?
Judge Donnelly. Thank you for that question, Senator
Klobuchar. You are right that these are among the most
difficult cases to prosecute. With domestic violence victims
and with child abuse victims, challenges in identifying the
victims, many of whom are financially dependent on their
abusers, challenges with very young victims, and many steps
have been taken.
It has been some time since I have been active in that
role, but the use of child advocacy centers, where a child
abuse victim gets all services at one location without the need
for multiple interviews, and having the opportunity to work
with those children was one of the most meaningful and
affecting experiences of my life, to see children who have
suffered so much to have been so resilient and so able to
survive unimaginable situations.
I hope that it will make me a better judge. I feel that it
has in my 6 years on the supreme court. I am very lucky to have
had that chance. I thank you for the question.
Senator Klobuchar. Mr. Vilardo, I see that you served on
the Harvard Law Review and Chief Justice Roberts was the
editor. So, who do you think is the better editor of the
Harvard Law Review, President Obama or--I am kidding, do not go
there.
[Laughter.]
Senator Klobuchar. Do not answer that question.
Senator Tillis. I will provide you extra time, Senator
Klobuchar.
[Laughter.]
Senator Klobuchar. So I was just thinking of your
experience as a civil litigator and a lot of times people that
go into the Federal judgeships, but sometimes they also are
criminal prosecutors, sometimes they are defenders. But what do
you think you will bring to the table here as a civil
litigator? I think we know a lot of the cases are civil and not
everyone knows that.
Mr. Vilardo. Sure. My experience actually is civil and
criminal. I have done a good deal of criminal work, as well.
But the broad experience that I have had, in addition, as an
advocate, as an arbitrator and a mediator and a law clerk, I
think position me well to do a good job as a district job, at
least, I hope so.
Senator Klobuchar. Very good. I am not going to bring up
the Vikings-Buffalo Bills game. I do not know if you remember
this, when your fans threw snowballs at our players during a
playoff game.
Mr. Vilardo. I apologize.
[Laughter.]
Mr. Vilardo. On behalf of the people of Western New York, I
apologize.
Senator Klobuchar. Thank you, thank you. I do not think I
will hold it against you, but it did hit Chuck Foreman in the
eye, but that is okay. It was a long, long time ago. But we
remember those games when we were quite the contenders for the
Super Bowl.
My last question of you, Ms. Hall, is just--I would ask it
of everyone, but I think we have a good panel here that have
given some good answers.
But I think one of the challenges for all judges is just
you have litigants that come before you, some are rich, some
are poor, some can afford really good lawyers and some cannot.
And how will you assure them that you will treat them fairly?
Ms. Hall. Thank you for the question, Senator. I believe
that in my private practice, as well as in my service publicly
on the Joint Commission for Public Ethics and the Taxi and
Limousine Commission, that I have developed a reputation of
treating people fairly at the Joint Commission on Public Ethics
and the TLC, specifically those who appeared before the
commission.
I also believe that the way in which I would conduct my
courtroom, if given the opportunity, would, I hope, let the
litigants know that they are heard, that their cases have been
given the adequate thoughtfulness and deliberation. And I also
believe that if I adhere to the rule of law and apply the law
to the facts in the case unbiasedly, that that should give
litigants the assurance that they need that they were treated
fairly.
Senator Klobuchar. Thank you very much. And thank you, Mr.
Chairman. I know I went a little over, but thank you for
running a good hearing here.
Senator Tillis. Thank you. That discussion about the Bills
games reminds me of a Patriots game that I have yet to get an
apology for. That was the snowplow game back in the 1980s. So I
share your concerns.
But I want to thank the panelists. Again, I want to
congratulate you for being before us and having the honor to be
nominated. You and your families should be very proud. We look
forward.
We are going to hold the hearing record open for 1 week for
information to be submitted to the record. There may be some
follow-up questions. But we appreciate your time today and I
personally wish you the very best of luck.
Thank you.
[Whereupon, at 3:30 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Hon. Ann Donnelly, LaShann DeArcy Hall,
And Lawrence J. Vilardo by Senator Vitter
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Hon. Dale A. Drozd by Senator Vitter
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]