[Senate Hearing 108-135]
[From the U.S. Government Publishing Office]
S. Hrg. 108-135, Pt. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
FEBRUARY 5, FEBRUARY 12, MARCH 12, MARCH 27, AND APRIL 1, 2003
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PART 2
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Serial No. J-108-1
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Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
90-303 WASHINGTON : 2004
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800, DC area (202) 512-1800 Fax: (202) 512-2250 Mail: stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Makan Delrahim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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WEDNESDAY, FEBRUARY 5, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 201
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 11
prepared statement........................................... 207
PRESENTERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio
presenting Gregory L. Frost, Nominee to be District Judge for
the Southern District of Ohio.................................. 13
Dorgan, Hon. Byron, a U.S. Senator from the State of North Dakota
presenting Ralph R. Erickson, Nominee to be District Judge for
the District of North Dakota................................... 9
Ensign, Hon. John, a U.S. Senator from the State of Nevada
presenting Jay S. Bybee, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 5
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland
presenting William D. Quarles, Jr., Nominee to be District
Judge for the District of Maryland............................. 7
Pomeroy, Hon. Earl, a Representative in Congress from the State
of North Dakota presenting Ralph R. Erickson, Nominee to be
District Judge for the District of North Dakota................ 9
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting Jay S. Bybee, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 6
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland
presenting William D. Quarles, Jr., Nominee to be District
Judge for the District of Maryland............................. 4
STATEMENTS OF THE NOMINEES
Bybee, Jay S., Nominee to be Circuit Judge for the Ninth Circuit. 16
Questionnaire................................................ 23
Erickson, Ralph R., Nominee to be District Judge for the District
of North Dakota................................................ 56
Questionnaire................................................ 64
Frost, Gregory L., Nominee to be District Judge for the Southern
District of Ohio............................................... 57
Questionnaire................................................ 130
Quarles, William D., Jr., Nominee to be District Judge for the
District of Maryland........................................... 56
Questionnaire................................................ 104
QUESTIONS AND ANSWERS
Responses of Jay Bybee to questions submitted by Senator Biden... 157
Responses of Jay Bybee to questions submitted by Senator Edwards. 162
Responses of Jay Bybee to questions submitted by Senator Feingold 165
Responses of Jay Bybee to questions submitted by Senator Kennedy. 169
Responses of Jay Bybee to questions submitted by Senator Leahy... 174
SUBMISSIONS FOR THE RECORD
Blakesley, Christopher L., Professor of Law, University of Nevada
Las Vegas, Las Vegas, Nevada, letter........................... 192
Care, Hon. Terry John, State Senator, State of Nevada, Las Vegas,
Nevada, letter................................................. 195
Conrad, Hon. Kent, a U.S. Senator from the State of North Dakota,
letter in support of Ralph R. Erickson, Nominee to be District
Judge for the District of North Dakota......................... 196
Garvey, John H., Dean, Boston College Law School, Newton,
Massachusetts, letter.......................................... 197
Gedicks, Frederick Mark, Professor of Law, Brigham Young
University Law School, Provo, Utah, letter..................... 198
Green, Stuart P., Professor, University of Glasgow, Glasgow,
United Kingdom, letter......................................... 200
Johnson, Steve, Professor, E.L. Wiegand Professor of Law,
University of Nevada Las Vegas, Las Vegas, Nevada, letter...... 205
Marshall, William P., Kenan Professor of Law, University of North
Carolina, Chapel Hill, North Carolina, letter.................. 209
McAffee, Thomas B., Professor of Law, University of Nevada Las
Vegas, Las Vegas, Nevada, letter............................... 210
Morgan, Richard J., Dean, William S. Boyd School of Law,
University of Nevada Las Vegas, Las Vegas, Nevada, letter...... 212
Smith, Rodney K., Herff Chair of Excellence in Law, University of
Memphis, Memphis, Tennessee, letter............................ 214
Tobias, Carl, Beckley Singleton Professor of Law, University of
Nevada Las Vegas, Las Vegas, Nevada, letter.................... 215
Voinovich, Hon. George V., a U.S. Senator from the State of Ohio,
letter in support of Gregory L. Frost, Nominee to be District
Judge for the Southern District of Ohio........................ 217
Young, Michael K., Dean and Lobingier Professor of Comparative
Law and Jurisprudence, George Washington University Law School,
Washington, D.C., letter....................................... 219
WEDNESDAY, FEBRUARY 12, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 258
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 443
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 221
prepared statement........................................... 446
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 228
PRESENTERS
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee
presenting J. Daniel Breen, Nominee to be District Judge for
the Western District of Tennessee and Thomas A. Varlan, Nominee
to be District Judge for the Eastern District of Tennessee..... 227
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado
presenting Timothy M. Tymkovich, Nominee to be Circuit Judge
for the Tenth Circuit.......................................... 224
Allen, Hon. George F., a U.S. Senator from the State of Virginia
presenting Timothy C. Stanceu, Nominee to be Judge of the
United States Court of International Trade..................... 229
Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of
Colorado presenting Timonthy M. Tymkovich, Nominee to be
Circuit Judge for the Tenth Circuit............................ 223
Cannon, Hon. Chris, a Reprsentative in Crongress from the State
of Utah presenting Marian Blank Horn, Nominee to be Judge of
the United States Court of Federal Claims...................... 233
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama
presenting William H. Steele, Nominee to be District Judge for
the Southern District of Alabama............................... 231
Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama
presenting William H. Steele, Nominee to be District Judge for
the Southern District of Alabama............................... 226
STATEMENTS OF THE NOMINEES
Breen, J. Daniel, Nominee to be District Judge for the Western
District of Tennessee.......................................... 285
Questionnaire................................................ 294
Horn, Marian Blank, Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 287
Questionnaire................................................ 378
Stanceu, Timothy C., Nominee to be Judge of the U.S. Court of
International Trade............................................ 287
Questionnaire................................................ 359
Steele, William H., Nominee to be District Judge for the Southern
District of Alabama............................................ 285
Questionnaire................................................ 322
Tymkovich, Timothy M., Nominee to be Circuit Judge for the Tenth
Circuit........................................................ 236
Questionnaire................................................ 264
Varlan, Thomas A., Nominee to be District Judge for the Eastern
District of Tennessee.......................................... 286
Questionnaire................................................ 334
QUESTIONS AND ANSWERS
Responses of Timothy M. Tymkovich to questions submitted by
Senator Durbin................................................. 405
Responses of Timothy M. Tymkovich to questions submitted by
Senator Feinstein.............................................. 409
Responses of Timothy M. Tymkovich to questions submitted by
Senator Leahy.................................................. 418
Responses of William H. Steele to questions submitted by Senator
Kennedy........................................................ 430
SUBMISSIONS FOR THE RECORD
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee,
prepared statement............................................. 441
Shelby, Hon. Richard C., a U.S. Senator from the State of
Alabama, prepared statement.................................... 452
WEDNESDAY, MARCH 12, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia.. 455
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 471
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 732
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 740
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 742
PRESENTERS
Allen, Hon. George F., a U.S. Senator from the State of Virginia
presenting Victor J. Wolski, Nominee to be Judge for the United
States Court of Federal Claims................................. 462
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana
presenting Philip P. Simon and Theresa Lazar Springmann,
Nominees to be District Judges for the Northern District of
Indiana........................................................ 460
Cornyn, Hon. John a U.S. Senator from the State of Texas
presenting Ricardo H. Hinojosa, Nominee to be United States
Sentencing Commissioner........................................ 464
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting James V. Selna and Cormac J. Carney,
Nominees to be District Judges for the Central District of
California..................................................... 457
Hinojosa, Hon. Ruben E., a Representative in Congress from the
State of Texas presenting Ricardo H. Hinojosa, Nominee to be
United States Sentencing Commissioner.......................... 690
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Ricardo H. Hinojosa, Nominee to be United
States Sentencing Commissioner................................. 463
Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana
presenting Philip P. Simon and Theresa Lazar Springmann,
Nominees to be District Judges for the Northern District of
Indiana........................................................ 458
Warner, Hon. John W., a U.S. Senator from the State of Virginia
presenting Victor J. Wolski, Nominee to be Judge for the United
States Court of Federal Claims................................. 461
STATEMENTS OF THE NOMINEES
Carney, Cormac J., Nominee to be District Judge for the Central
District of California......................................... 465
Questionnaire................................................ 489
Hinojosa, Ricardo H., Nominee to be U.S. Sentencing Commissioner. 691
Questionnaire................................................ 640
Horowitz, Michael E., Nominee to be U.S. Sentencing Commissioner. 692
Questionnaire................................................ 675
Selna, James V., Nominee to be District Judge for the Central
District of California......................................... 465
Questionnaire................................................ 502
Simon, Philip P., Nominee to be District Judge for the Northern
District of Indiana............................................ 467
Questionnaire................................................ 587
Springmann, Theresa Lazar, Nomineee to be District Judge for the
Northern District of Indiana................................... 466
Questionnaire................................................ 552
Williams, Mary Ellen Coster, Nominee to be Judge for the U.S.
Court of Federal Claims........................................ 467
Questionnaire................................................ 605
Wolski, Victor J., Nominee to be Judge for the U.S. Court of
Federal Claims................................................. 466
Questionnaire................................................ 532
QUESTIONS AND ANSWERS
Responses of Cormac Joseph Carney to questions submitted by
Senator Leahy.................................................. 695
Responses of James V. Selna to questions submitted by Senator
Leahy.......................................................... 698
Responses of Philip Peter Simon to questions submitted by Senator
Leahy.......................................................... 701
Responses of Theresa Lazar Springmann to questions submitted by
Senator Leahy.................................................. 706
Responses of Victor J. Wolski to questions submitted by Senator
Durbin......................................................... 710
Responses of Victor J. Wolski to questions submitted by Senator
Schumer........................................................ 717
Responses of Victor J. Wolski to questions submitted by Senator
Kennedy........................................................ 719
Responses of Victor J. Wolski to questions submitted by Senator
Leahy.......................................................... 721
SUBMISSIONS FOR THE RECORD
Alliance for Justice, Nan Aron, President, Washington, D.C.,
letter......................................................... 724
American Planning Association, Clean Water Action, Community
Rights Counsel, Defenders of Wildlife, Earthjustice, Endangered
Species Coalition, Friends of the Earth, Mineral Policy Center,
National Environmental Trust, Natural Resources Defense
Council, Oceana Sierra Club, Southern Utah Wilderness Alliance,
joint letter................................................... 726
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
statement in support of Cormac J. Carney and James V. Selna,
Nominees to be District Judges for the Central District of
California..................................................... 730
THURSDAY, MARCH 27, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 747
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 974
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 757
prepared statement........................................... 981
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 761
PRESENTERS
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico,
presenting Susan G. Braden, Nominee to be Judge for the Court
of Federal Claims, and Charles F. Lettow, Nominee to be Judge
for the Court of Federal Claims................................ 750
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
presenting Edward C. Prado, Nominee to be Circuit Judge for the
Fifth Circuit.................................................. 755
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana,
presenting Dee D. Drell, Nominee to be District Judge for the
Western District of Louisiana.................................. 751
Lincoln, Hon. Blanche, a U.S. Senator from the State of Arkansas,
presenting J. Leon Holmes, Nominee to be District Court Judge
for the Eastern District of Arkansas........................... 753
Mikulski, Hon. Barbara, a U.S. Senator from the State of
Maryland, presenting Richard D. Bennett, Nominee to be District
Judge for the District of Maryland............................. 749
Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas,
presenting J. Leon Holmes, Nominee to be District Court Judge
for the Eastern District of Arkansas........................... 755
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland,
presenting Richard D. Bennett, Nominee to be District Judge for
the District of Maryland....................................... 748
Tauzin, Hon. Billy, a Representatives in Congress from the State
of Louisiana, presenting Dee D. Drell, Nominee to be District
Judge for the Western District of Louisiana.................... 752
STATEMENTS OF THE NOMINEES
Bennett, Richard D., Nominee to be District Judge for the
District of Maryland........................................... 790
Questionnaire................................................ 798
Braden, Susan G., Nominee to be Judge for the Court of Federal
Claims......................................................... 791
Questionnaire................................................ 860
Drell, Dee D., Nomineee to be District Judge for the Western
District of Louisiana.......................................... 790
Questionnaire................................................ 818
Holmes, J. Leon, Nominee to be District Court Judge for the
Eastern District of Arkansas................................... 791
Questionnaire................................................ 840
Lettow, Charles F., Nominee to be Judge for the Court of Federal
Claims......................................................... 792
Questionnaire................................................ 902
Prado, Edward C., Nominee to be Circuit Judge for the Fifth
Circuit........................................................ 762
Questionnaire................................................ 763
QUESTIONS AND ANSWERS
Responses of Susan G. Braden to questions submitted by Senator
Leahy.......................................................... 930
Responses of J. Leon Holmes to questions submitted by Senator
Durbin......................................................... 935
Responses of J. Leon Holmes to questions submitted by Senator
Leahy.......................................................... 947
Responses of J. Leon Holmes to questions submitted by Senator
Schumer........................................................ 956
Responses of Charles Lettow to questions submitted by Senator
Leahy.......................................................... 960
SUBMISSIONS FOR THE RECORD
Allen, Hon. George, a U.S. Senator from the State of Virginia,
statement in support of Charles Lettow, Nominee to be Judge on
the U.S. Court of Federal Claims............................... 967
Barrera, Roy R., Jr., Attorney, Nicholas and Barrera, P.C.,
Attorneys and Counselors at Law, San Antonio, Texas, letter.... 968
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio,
statement in support of Susan G. Braden, Nominee to be Judge
for the Court of Federal Claims................................ 969
Euler, John Lodge, President, U.S. Court of Federal Claims Bar
Association, Washington, D.C., letter.......................... 971
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
statement in support of Charles Lettow, Nominee to be Judge on
the U.S. Court of Federal Claims............................... 973
Holmes, J. Leon, Letter to Senator Lincoln, dated April 11, 2003. 976
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas, statement in support Edward C. Prado, Nominee to be
Circuit Judge for the Fifth Circuit and Charles Lettow, Nominee
to be Judge for the U.S. Court of Federal Claims............... 979
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, statement on the nomination of J. Leon Holmes............ 985
Warner, Hon. John W., a U.S. Senator from the State of Virginia,
statement in support of Charles Lettow, Nominee to be Judge for
the U.S. Court of Federal Claims............................... 988
TUESDAY, APRIL 1, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 1000
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 991
prepared statement........................................... 1313
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 1060
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 994
prepared statement........................................... 1353
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 1068
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1059
PRESENTERS
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee
presenting Carolyn B. Kuhl, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 998
Graham, Hon. Bob, a U.S. Senator from the State of Florida,
presenting Cecilia M. Altonaga, Nominee to be District Judge
for the Southern District of Florida........................... 1002
STATEMENTS OF THE NOMINEES
Altonaga, Cecilia M., Nominee to be District Judge for the
Southern District of Florida................................... 1082
Questionnaire................................................ 1083
Kuhl, Carolyn B., Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 1004
Questionnaire................................................ 1005
Minaldi, Patricia A., Nominee to be District Judge for the
Western District of Louisiana.................................. 1106
Questionnaire................................................ 1107
QUESTIONS AND ANSWERS
Responses of Carolyn Kuhl to questions submitted by Senator Biden 1146
Responses of Carolyn Kuhl to questions submitted by Senator
Durbin......................................................... 1154
Responses of Carolyn Kuhl to questions submitted by Senator
Edwards........................................................ 1160
Responses of Carolyn Kuhl to questions submitted by Senator
Feinstein...................................................... 1168
Responses of Carolyn Kuhl to questions submitted by Senator
Grassley....................................................... 1172
Responses of Carolyn Kuhl to questions submitted by Senator
Kennedy........................................................ 1176
Responses of Carolyn Kuhl to questions submitted by Senator Leahy 1184
Responses of Carolyn Kuhl to questions submitted by Senator
Schumer........................................................ 1198
SUBMISSIONS FOR THE RECORD
Alder, C. Michael, P.C. Law Office, Beverly Hills, California,
letter......................................................... 1206
Alliance for Justice, Washington, D.C., letter................... 1207
Allred, Kevin S., Los Angeles, California, letter................ 1224
American Association of University Women, Jacqueline E. Woods,
Executive Director, Washington, D.C., letter................... 1226
Antine, Penny, Photographer, North Hollywood, California, letter. 1228
Ashmann-Gerst, Judith, Associate Justice, California Court of
Appeal, Second Appellate District, Los Angeles, California,
letter......................................................... 1229
Ball, Sharon A., President, National Women's Political Caucus of
California, Walnut Creek, California, letter................... 1230
Barzman Norma, Beverly Hills, California, letter................. 1232
Bascue, James A., Presiding Judge, Superior Court, Los Angeles,
California, letter............................................. 1233
Bitler, Audrea Golding, Santa Monica, California, letter......... 1235
Bliss, Ina Nuell, Attorney, West Hollywood, California, letter... 1236
Boland, Paul, Court of Appeal, State of California, Los Angeles,
California, letter............................................. 1237
Boxer, Hon. Barbara, a U.S. Senator from the State of California:
statement.................................................... 1239
letter, January 31, 2003..................................... 1241
letter, April 1, 2003........................................ 1242
Breiter, Sally, Santa Monica, California, letter................. 1243
Broillet, Bruce A., Green, Broillet, Taylor, Wheeler and Panish
LLP, Santa Monica, California, letter.......................... 1244
Brown, Helen, Pasadena, California, letter....................... 1245
California National Organization for Women, Helen Grieco,
Executive Director, letter..................................... 1246
California Women Lawyers, San Francisco, California:
letter, dated July 16, 2001.................................. 1247
letter, dated March 26, 2003................................. 1248
Center for Reproductive Law and Policy, Janet Benshoof,
President, Rosemary Dempsey, Director, Washington, Office,
Washington, D.C., letter....................................... 1249
Certor, Marcia S., Santa Monica, California, letter.............. 1251
Chavez, Victor E., Judge, Superior Court, Los Angeles,
California, letter............................................. 1252
Chinese for Affirmative Action, Diane T. Chin, Executive
Director, San Francisco, California, letter.................... 1253
Colleagues of Judge Carolyn B. Kuhl, Los Angeles, California,
joint letter................................................... 1255
Committee for Judicial Independence, Susan Lerner, Chair, Los
Angeles, California, letter.................................... 1259
Community Rights Counsel, Defenders of Wildlife, Earthjustice,
Endangered Species Coalition, Friends of the Earth, Mineral
Policy Center, Oceana, Physicians for Social Responsibility,
joint letter................................................... 1262
Costales, Manuel S., Orange, California, letter.................. 1266
Croskey, H. Walter, Court of Appeal, Second Appellate District,
Los Angeles, California:
letter, dated July 20, 2001.................................. 1267
letter, dated March 26, 2003................................. 1268
Curry, Daniel A., California Court of Appeal, Second Appellate
District, Los Angeles, California, letter...................... 1270
Davis, Eileen, Los Angeles, California, letter................... 1271
Dawson James R., and Wayne P. Flodman, Torrance, California,
joint letter................................................... 1272
Dell Angelo, Robert L., M.D., Los Angeles, California, letter.... 1273
Dworkin, Alice, Glendale, California, letter..................... 1275
Dworsky, Marc T.G., Los Angeles, California, letter.............. 1276
Eaton, Daniel E., Esq., Seltzer, Caplan, McMahon, Vitek, San
Diego, California, letter...................................... 1278
Egenberger, Marghatta J.K., Thousand Oaks, California, letter.... 1280
Egerton, Anne H., Los Angeles, California, letter................ 1281
Ehlmann, Grace, North Hollywood, California, letter.............. 1284
Epstein, Norman L., California Court of Appeal, Second Appellate
District, Los Angeles, California, letter...................... 1285
Escutia, Hon. Martha M., California State Senator, Thirtieth
Senatorial District, Sacramento, California, letter............ 1286
Field, Sheila and Arlen Field, Santa Monica, California, letter.. 1288
Fields, Michael S., President, Consumer Attorneys Association of
Los Angeles, Artesia, California, letter....................... 1289
Fox, Daniel N., Attorney at Law, Pomona, California, letter...... 1290
Fox, Jean, New York, New York, letter............................ 1291
Friedman, Terry, Superior Court, Juvenile Division, Monterey
Park, California, letter....................................... 1292
Gagliardi, Marina, Psychotherapist, Los Angeles, California,
letter......................................................... 1294
Gans, Jennifer Cross, letter..................................... 1295
Gartenberg, Allan, Culver City, California, letter............... 1296
Gault, Joy A., Hawthorne, California, letter..................... 1297
Gavurin, Sylvia, Culver City, California, letter................. 1298
Gender Justice Action Group, Pam Godbout, Women's Coordinator,
Park Forest, Illinois, letter.................................. 1299
Girardi, Thomas V., Girardi, Keese, Los Angeles, California,
letter......................................................... 1301
Glaser, Patricia L., Christensen, Miller, Fink, Jacobs, Glaser,
Weil & Shapiro, LLP, Los Angeles, California, letter........... 1302
Goodman, Carolina, Sherman Oaks, California, letter.............. 1303
Goodman, Jan, Lawyer, Santa Monica, California, letter........... 1304
Grimes, Elizabeth A., Judge, Superior Court, Los Angeles County,
Los Angeles, California, letter and attachment................. 1305
Han, Yong, San Francisco, California, letter..................... 1311
Hastings, J. Gary, California Court of Appeal, Second Appellate
District, Los Angeles, California, letter...................... 1312
Henry, Agnes F., Agoura Hills, California, letter................ 1317
Hill, Alice C., Supervising Judge, Superior Court, Los Angeles
County, San Fernando, California, letter....................... 1318
Hilton, Linda Ann Wheeler, letter................................ 1320
Hirsch, Jane, Pacific Palisades, California, letter.............. 1321
Hull, Harry E., Jr., Associate Justice, California Court of
Appeal, Third Appellate District, Sacramento, California,
letter......................................................... 1322
Hunter, Nicole, San Francisco, California, letter................ 1324
Japanese American Citizens League, Beth A. Au, Regional Director,
San Francisco, California, letter.............................. 1325
Judelson, Debra R., M.D., Beverly Hills, California, letter...... 1326
Justice for All Project, Los Angeles, California, letter......... 1327
Kanne, Stephen L., and Claudia A., Los Angeles, California,
letter......................................................... 1329
Karpman, Janice, Los Angeles, California, letter................. 1330
Katzman, Eleanor, letter dated June 26, 2001..................... 1331
Kelly, Colleen O., Belmont, California, letter................... 1332
Kightlinger, Pamela, North Hollywood, California, letter......... 1333
Klein, Joan Dempsey, Presiding Justice, California Court of
Appeal, Second Appellate Disrict, Los Angeles, California:
letter, dated April 12, 2001................................. 1334
letter, dated April 25, 2001................................. 1336
Kolber, Richard, Justice For All Project, letter................. 1338
Kolkey, Daniel M., Associate Justice, California Court of Appeal,
Third Appellate District, Sacrmento, California, letter........ 1339
Kouzel, Ilene, El Cajon, California, letter...................... 1341
Krauss, Irving, Secretary, Alpin County Democratice Central
Committee, Markleeville, California, letter.................... 1342
Kuehl, Sheila James, California State Senator, Twenty-third
Senatorial District, Chair, Natural Resources and Wildlife
Committee, Sacramento, California, letter...................... 1343
Laemig, Ardi S., letter, dated July 21, 2001..................... 1344
Landrieu, Hon. Mary L., a U.S. Senator from the State of
Louisiana, statement in support of Patricia H. Minaldi, Nominee
to be District Judge for the Western District of Louisiana..... 1345
Laskin, Lillian, Los Angeles, California, letter................. 1347
Laval, Barbara, letter........................................... 1349
Lawal, Nima T., letter........................................... 1350
Leadership Conference on Civil Rights, Wade Henderson and Dr.
Dorothy I. Height, Washington, D.C., letter.................... 1351
Legal academics, joint letter, dated March 12, 2003.............. 1357
Levich, Stella, Culver City, California, letter.................. 1362
Levin, Bonnie Aaron, Los Angeles, California, letter............. 1363
Libman, Joan, San Francisco, California, letter.................. 1364
Los Angeles County Bar Association, Miriam Aroni Krinsky,
President, Los Angeles, California, letter and attachment...... 1365
Ludwig, Miriam, Santa Monica, California, letter................. 1368
Luster, Laura, Oakland, California, letter....................... 1369
Mackey, Malcolm H., Superior Court, Los Angeles County, Los
Angeles, California, letter.................................... 1370
Mahaffey, Lesley, Fullerton, California, letter.................. 1371
Maloney, Ken and Julie Ford-Maloney, Huntington Beach,
California, letter............................................. 1372
Manfra, Lorie, Santa Ana, California, letter..................... 1373
Manpearl, Jerry, Mandel & Manpearl, Los Angeles, California,
letter......................................................... 1374
Marques, Magaly, Executive Director, Pacific Institute for
Women's Health, Los Angeles, California, letter................ 1375
Martinez, Vilma S., Los Angeles, California, letter.............. 1376
McOwen, Carol M., Pasadena, California, letter................... 1378
Members of the Judiciary Committee of the California Assembly,
Sacramento, California, joint letter........................... 1379
Messner, Linda, Culver City, California, letter.................. 1381
Miem, Dolores, Thousand Oaks, California, letter................. 1382
Minoo, Parviz and Linda Minoo, Agoura Hills, California, letter.. 1383
Moreno, Paul, South Coast Audubon, Mission Viejo, California,
letter......................................................... 1384
Mosk, Richard M.:
Attorney at Law, Los Angeles, California, letter............. 1385
Associate Justice, California Court of Appeal, Second
Appellate District, Los Angeles, California, letter........ 1386
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington Bureau, Washington,
D.C., letter and attachment.................................... 1387
National Family Planning and Reproductive Health Association,
Judith M. DeSarno, President/CEO, Washington, D.C., letter..... 1390
National Women's Law Center, statement........................... 1391
Natural Resources Defense Council, John Adams, President, letter. 1394
Nelson, Gretchen M., Attorney at Law, Los Angeles, California:
letter, dated May 17, 2001................................... 1396
letter, dated February 14, 2003.............................. 1398
Nelson, Hon. Bill, a U.S. Senator from the State of Florida,
statement in support of Cecilia Altonaga, Nominee to be
District Judge for the Southern District of Florida............ 1401
Nieman, Nancy, Ph.D., Southern Director, National Women's
Political Caucus of California, letter......................... 1402
Okuneff, Peggy, Culver City, California, letter.................. 1403
Olson, Ronald L., Munger, Tolles & Olson LLP, Los Angeles,
California, letter............................................. 1404
Orfield, Michael B., Judge, California Superior Court, San Diego,
California, letter............................................. 1406
Pacific Institute for Women's Health, Lovisa Stannow, Executive
Director, Los Angeles, California, letter...................... 1408
Palafoutas, Donna, Santa Ana, California, letter................. 1410
Perluss, Dennis M., California Court of Appeal, Second Appellate
District, Los Angeles, California, letter...................... 1411
Petersen, Ann L., Arcadia, California, letter.................... 1412
Planned Parenthood Federation of America, Inc., Washington, D.C.,
statement...................................................... 1413
Pollak, Stuart, Associate Justice, California Court of Appeal,
First Appellate District, San Francisco, California, letter.... 1415
Porter, Ann, Los Angeles, California, letter..................... 1416
Project Freedom of Religion, William R. Lakin, Executive
Committee, letter.............................................. 1417
Renbarger, Nancy, Agoura Hills, California, letter............... 1418
Reynolds, Patrick, President, The Foundation for a Smokefree
America, Los Angeles, California, letter....................... 1419
Reynolds, Susan F., M.D., Ph.D., Managing Partner, Susan Reynolds
and Associates, Santa Monica, California, letter............... 1420
Rivera, Phoebe, Oak Park, California, letter..................... 1421
Romero, Enrique, Judge (Retired), Pasadena, California, letter... 1422
Rowe, Thomas D., Jr., Duke University School of Law, Durham,
North Carolina, letter......................................... 1423
Rule, Wilma, Adjunct Professor, University of Nevada, Department
of Political Science, Reno, Nevada, letter..................... 1424
Sallus, Gerald M., Esq., Attorney at Law, Culver City,
California, letter............................................. 1425
Salo, Mark, letter, dated Feb. 6, 2003........................... 1426
Sanchez-Scott, Azucena, letter................................... 1427
Schorr, Joyce, Sherman Oaks, California, letter.................. 1428
Service Employees Internation Union, AFL-CIO, Anna Burger,
International Secretary-Treasurer, Washington, D.C., letter and
attachment..................................................... 1429
Sheehan, Katherine C., Professor of Law, Southwestern University
School of Law, Los Angeles, California, letter................. 1434
Sloan, Donald E., Lawrence, Kansas, letter....................... 1435
Smith, Christopher Corey, Culver City, California, letter........ 1437
Spindel, Blanche, Los Angeles, California, letter................ 1438
Swarez, Sheila, Newbury Park, California, letter................. 1439
Taxpayers Against Fraud, James W. Moorman, President, Washington,
D.C.:
letter, dated July 17, 2001.................................. 1440
letter, dated April 3, 2003 and attachment................... 1441
Taylor, Lynn O'Malley, Presiding Judge, San Francisco,
California, letter............................................. 1444
Terrell, Leo James, Attorney at Law, Beverly Hills, California,
letter......................................................... 1445
Travis, Cynthia, letter.......................................... 1447
Turner, Paul, Presiding Justice, California Court of Appeal,
Second Appellate District, Los Angeles, California, letter..... 1448
Walker, Cheryl, Venice, California, letter....................... 1451
Wallace, Doris, Rancho Cucamonga, California, letter............. 1452
Ward, James D., Associate Justice, California Court of Appeal,
Fourth District, Riverside, California, letter................. 1453
Wells, Patricia, Fresno, California, letter...................... 1455
Williams, Thelma, Thousand Oaks, California, letter.............. 1456
Williamson, Jan, Venice, California, letter...................... 1457
Women's and reproductive rights organizations, Los Angeles,
California, joint letter, dated March 31, 2003................. 1458
Zandecki, Jolanta, Berkeley, California, letter.................. 1461
ALPHABETICAL LIST OF NOMINEES
Altonaga, Cecilia M., Nominee to be District Judge for the
Southern District of Florida................................... 1082
Bennett, Richard D., Nominee to be District Judge for the
District of Maryland........................................... 790
Braden, Susan G., Nominee to be Judge for the Court of Federal
Claims......................................................... 791
Breen, J. Daniel, Nominee to be District Judge for the Western
District of Tennessee.......................................... 285
Bybee, Jay S., Nominee to be Circuit Judge for the Ninth Circuit. 16
Carney, Cormac J., Nominee to be District Judge for the Central
District of California......................................... 465
Drell, Dee D., Nomineee to be District Judge for the Western
District of Louisiana.......................................... 790
Erickson, Ralph R., Nominee to be District Judge for the District
of North Dakota................................................ 56
Frost, Gregory L., Nominee to be District Judge for the Southern
District of Ohio............................................... 57
Hinojosa, Ricardo H., Nominee to be U.S. Sentencing Commissioner. 691
Holmes, J. Leon, Nominee to be District Court Judge for the
Eastern District of Arkansas................................... 791
Horn, Marian Blank, Nominee to be Judge of the U.S. Court of
Federal Claims................................................. 287
Horowitz, Michael E., Nominee to be U.S. Sentencing Commissioner. 692
Kuhl, Carolyn B., Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 1004
Lettow, Charles F., Nominee to be Judge for the Court of Federal
Claims......................................................... 792
Minaldi, Patricia A., Nominee to be District Judge for the
Western District of Louisiana.................................. 1106
Prado, Edward C., Nominee to be Circuit Judge for the Fifth
Circuit........................................................ 762
Quarles, William D., Jr., Nominee to be District Judge for the
District of Maryland........................................... 56
Selna, James V., Nominee to be District Judge for the Central
District of California......................................... 465
Simon, Philip P., Nominee to be District Judge for the Northern
District of Indiana............................................ 467
Springmann, Theresa Lazar, Nomineee to be District Judge for the
Northern District of Indiana................................... 466
Stanceu, Timothy C., Nominee to be Judge of the U.S. Court of
International Trade............................................ 287
Steele, William H., Nominee to be District Judge for the Southern
District of Alabama............................................ 285
Tymkovich, Timothy M., Nominee to be Circuit Judge for the Tenth
Circuit........................................................ 236
Varlan, Thomas A., Nominee to be District Judge for the Eastern
District of Tennessee.......................................... 286
Williams, Mary Ellen Coster, Nominee to be Judge for the U.S.
Court of Federal Claims........................................ 467
Wolski, Victor J., Nominee to be Judge for the U.S. Court of
Federal Claims................................................. 466
NOMINATIONS OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH
CIRCUIT; RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF NORTH DAKOTA; WILLIAM D. QUARLES, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND; AND GREGORY L. FROST,
NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO
----------
WEDNESDAY, FEBRUARY 5, 2003
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:34 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the committee, presiding.
Present: Senators Hatch, Kyl, DeWine, Graham, Craig, Leahy,
and Kennedy.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Okay, we are ready to go. Senator Leahy
will be here shortly and we will begin.
I am pleased to welcome to the Committee this morning four
excellent nominees for the Federal bench. All of you are to be
commended for your impressive qualifications and
accomplishments, and I think congratulated without question for
your nominations. Our first panel today will feature an
outstanding Circuit Court nominee, Jay S. Bybee, who has been
nominated to the Ninth Circuit Court of Appeals. Mr. Bybee is
no stranger to this Committee or to Committee hearings, having
appeared most recently before the Committee in October of 2001.
We will also hear from three District Court nominees, Judge
Ralph R. Erickson for the District of North Dakota; Judge
William D. Quarles, Jr., for the District of Maryland; and
Judge Gregory L. Frost for the Southern District of Ohio. And
of course I would also like to express appreciation for the
members who have taken time to come and present their views on
the qualifications of our witnesses today. We will hear from
them in a moment.
I am especially honored to have Mr. Jay Bybee here today,
who has been nominated by President Bush to serve on the Court
of Appeals for the Ninth Circuit. Professor Bybee comes to us
with a sterling resume and a record of distinguished public
service.
Professor Bybee is currently on leave from UNLV's William
S. Boyd School of Law, where he has served as a professor since
the law school's founding in 1999. He has served as an
Assistant Attorney General for the Department of Justice's
Office of Legal Counsel, the OLC, since October 2001. Notably
this is a post formerly held by two current Supreme Court
Justices. As head of the Office of Legal Counsel, Mr. Bybee
assists the Attorney General in his function there as legal
advisor to the President and all Executive Branch agencies. The
office is also responsible for providing legal advice to the
Executive Branch on all constitutional questions and reviewing
pending legislation for constitutionality. I am sure Professor
Bybee can attest that his work has been more than challenging,
especially since he joined the OLC soon after the events of
September 11th, but without question our Nation is lucky to
have him.
Professor Bybee is a Californian by birth, but he made the
wise choice of attending Utah's own Brigham Young University,
where he earned a bachelor's degree in economics, magna cum
laude, and a law degree cum laude. While in law school he was a
member of the BYU Law Review.
Following graduation, Mr. Bybee served as a law clerk to
Judge Donald Russell of the Fourth Circuit Court of Appeals
before joining the firm of Sidley & Austin. In 1984 he accepted
a position with the Department of Justice, first joining the
Office of Legal Policy, and then working with the appellate
staff of the Civil Division. In that capacity Mr. Bybee
prepared briefs and presented oral arguments in the U.S. Courts
of Appeals. From 1989 to 1991 Mr. Bybee served as Associate
Counsel to President George H.W. Bush.
Professor Bybee is a leading scholar in the areas of
constitutional and administrative law. Before he joined the law
faculty at UNLV he established his scholarly credentials at the
Paul M. Hebert Law Center at Louisiana State University, where
he taught from 1991 to 1998. His colleagues have described
Professor Bybee as a first rate teacher, a careful and balanced
scholar, and a hard-working and open-minded individual with the
type of broad legal experience the Federal Bench needs.
The recommendations of two individuals in particular
deserve special note. Bill Marshall, a professor of law at the
University of North Carolina and a former Associate White House
Counsel under President Clinton, who also participated in the
judicial selection process for Clinton Administration
appointments while at OLP, said of Mr. Bybee:
``The combination of his analytic skills along with his
personal commitment to fairness and dispassion lead me to
conclude that he will serve in the best traditions of the
Federal Judiciary. He understands the rule of law and he will
follow it completely.''
Stuart Green, a law professor at Louisiana State
University, who describes himself as a ``liberal Democrat and
active member of the ACLU'' has written the committee:
``I have always found Jay Bybee to be an extremely fair-
minded and thoughtful person. Indeed, Jay truly has what can
best be described as a `judicious' temperament, and I would
fully expect him to be a force for reasonableness and
conciliation on a court that has been known for its
fractiousness.''
We hear a great deal from some Committee members about the
need for ``balance'' on the Federal Courts. Here we have a
self-described liberal Democrat who testifies that Professor
Bybee would bring some balance to the Ninth Circuit. I would
welcome some balance on a court on which 14 of the 24 active
judges, including 14 of the last 15 confirmed, were appointed
by President Clinton. A court which is seldom out of the news
and often seems to court controversy with its decisions needs
some leavening once in a while.
We are all familiar with the Ninth Circuit's Pledge of
Allegiance ruling this past summer, and the Ninth Circuit's
high reversal rate by the Supreme Court is well documented, but
less known is the Ninth Circuit's propensity for reversing
death sentences, some judges voting to do so almost as a matter
of course. No doubt the Ninth Circuit has some of the Nation's
most intelligent judges, but some just seem to not be able to
follow the law. Just this term the U.S. Supreme Court has
summarily reversed the Ninth Circuit three times in a 1 day,
and vacated an opinion 9-0.
With two judicial emergencies in the Ninth Circuit we need
judges who are committed to applying and upholding the law. I
firmly believe Professor Bybee represents this type of judge. I
am very much looking forward to hearing from Professor Bybee
today, and to working with this Committee to obtain the
committee's positive recommendation to the full Senate, and to
the full Senate's confirmation. He will be a terrific judge, I
think by any measure.
In addition to the nomination of Professor Jay S. Bybee to
the U.S. Court of Appeals for the Ninth Circuit, we have the
privilege of considering three District Court nominees. Our
nominee to the U.S. District Court for the District of North
Dakota, Judge Ralph Erickson, has carved out a stellar legal
career on both sides of the bench. Judge Erickson served as a
private practice litigator for more than a decade before being
elevated to the State Court Bench in North Dakota 8 years ago.
According to a secret poll conducted by the Forum, Fargo's
daily newspaper, in 2002, Judge Erickson was selected as ``Best
Judge in Cass and Clay Counties'' by a survey of over 300
lawyers in those counties. He also has experience as a city
prosecutor and attorney in private practice.
Judge William Quarles, our nominee to the U.S. District
Court for the District of Maryland, has an impressive record in
both the private and public sectors. Upon graduating from
Catholic University Law School, Judge Quarles clerked for Hon.
Joseph C. Howard of the U.S. District Court for the District of
Maryland. In addition to private practice experience in complex
commercial, corporate, antitrust and products liability
litigation, Judge Quarles has served as an Assistant U.S.
Attorney, primarily focusing on organized crime prosecutions.
Judge Quarles is currently an Associate Circuit Judge for the
Circuit Court of Baltimore City, where he has handled more than
4,000 criminal cases and tried more than 150 jury trials. That
is a great record.
Judge Gregory Frost, our nominee for the Southern District
of Ohio, has an impressive background in the private and public
sectors. Upon graduation from Ohio Northern University Law
School in 1974, Judge Frost served as an assistant Licking
County prosecuting attorney. In this capacity he handled a
variety of cases including juvenile and felony prosecutions.
From 1974 to 1983 Judge Frost was a partner at Schaller, Frost,
Hostetter & Campbell, where his practice consisted of civil
litigation including domestic relations law, oil and gas law,
estate planning and personal injury law. From 1983 to 1990 he
served as a judge for the Licking County Municipal Court, and
since 1990 he has served as a judge for the Licking County
Common Pleas Court.
I am confident that all three of these fine nominees have
the intellect, experience and temperament necessary to serve
with distinction on the Federal Courts. I look forward to
hearing from them today and to working with my colleagues to
bring their nominations to a vote very soon.
So we welcome all of you here this morning. With the
understanding that as soon as Senator Leahy arrives, we will
give him the opportunity of giving his opening remarks.
I think what we will do is begin with you, Senator
Sarbanes, and we will go across the table by seniority if I
can. I am delighted to have you Senators here and Congress
people here. It means a lot to us, and your recommendations are
important to us.
PRESENTATION OF WILLIAM D. QUARLES, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND BY HON. PAUL SARBANES, A
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Sarbanes. Thank you very much, Mr. Chairman and
Members of the Committee.
I am very pleased to appear before you this morning to
commend to you the nomination of William Quarles to become a
U.S. District Judge for the District of Maryland.
You have already made comments about Judge Quarles, and I
agree with those, Mr. Chairman. Judge Quarles is a native of
Baltimore, a graduate of Catholic University Law School here in
Washington. Following graduation he clerked for 2 years for
Judge Joseph C. Howard, who I had the honor and privilege of
recommending to this Committee many, many years ago. Judge
Howard was the first African-American Judge to sit on the
Federal District Court in our State.
Following his 2-year clerkship with Judge Howard, Judge
Quarles practiced shortly with a firm here in the District of
Columbia, with Finley, Kumble, Wagner, and then went into the
U.S. Attorney's Office in Maryland and served 4 years as an
Assistant U.S. Attorney. He then joined the very distinguished
law firm of Venable, Baetjer and Howard, one of our State's
leading firms, and practiced there for 10 years.
Both the experience in the U.S. Attorney's Office, trying
complex criminal matters involving organized crime, and his
very complex civil legal practice at Venable, Baetjer and
Howard, obviously gave him I think a very important basis with
which to handle trial matters. He then went on the Circuit
Court in Baltimore City, which is a trial court of general
jurisdiction in our State, and he has been on that trial court
since 1996. So I think he brings to this nomination to the
Federal Bench the kind of experience in practice, both public
practice in the U.S. Attorney's Office, private practice in a
leading law firm, and then actually sitting on the State Bench
himself now for the past 6-1/2 years. It would obviously stand
him in good stead to be a Federal District Judge.
We are very proud of our Federal Bench in Maryland.
Maryland Senators over the years, both Democratic and
Republican, have worked assiduously to sustain the high quality
of our Federal Bench. We have been fortunate that we have been
able to appear before this Committee consistently in support of
the nominees, and as a consequence I think our bench has gained
a reputation as one of the finest District Court benches in the
country. I believe that Judge Quarles will sustain and add to
that reputation, and I am very pleased to come before the
Committee this morning and recommend him to you. I very much
hope that in the near future you will report him favorably to
the floor of the United States Senate.
Chairman Hatch. Well, thank you so much, Senator Sarbanes.
That is high praise indeed and we appreciate you being here.
I will turn to you, Senator Ensign, and then we will turn
to Congressman Pomeroy.
PRESENATION OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT JUDGE FOR
THE NINTH CIRCUIT BY HON. JOHN ENSIGN, A U.S. SENATOR FROM THE
STATE OF NEVADA
Senator Ensign. Thank you, Mr. Chairman. I appreciate you
having this hearing today. I appreciate you bringing nominee
Bybee before the Committee today.
I am here representing myself to recommend Jay Bybee, but
also Senator Reid. Senator Reid is very strongly behind Jay
Bybee as well. Both of us have gotten to know Jay on a personal
level as well as on a professional level over the least several
years.
I would ask that my full statement be made part of the
record with your consent.
Chairman Hatch. Without objection.
Senator Ensign. Mr. Chairman, just a few thoughts and a few
observations on Jay Bybee. First of all, the UNLV Boyd School
of Law, which is a new law school, looks like it is going to
get its full accreditation, one of the fastest law schools in
history to do that. Jay Bybee was an outstanding member of the
faculty at the Boyd School of Law.
It is interesting to note, when you talked about the
balance needed on the Ninth Circuit, Jay Bybee provided a lot
of balance at the Boyd School of Law, and talking to some of
the people there that were more of the liberal professors at
the Boyd School of Law, Jay Bybee was well thought of by
conservatives in the legal community as well as liberals in the
legal community in the State of Nevada
I think that the job that he has done since he has been at
Justice has shown the type of temperament and the type of
thoughtful person that he is going to be on the Ninth Circuit.
For those of us who live in the West, we have not necessarily
been pleased by a lot of the actions that the Ninth Circuit has
brought forward, and I think that Jay Bybee is going to be an
intellectual giant on that court. And I do not say that
lightly. I think that viewing and reading some of his
statements and some of his publications that he has put out,
you can tell how thoughtful he is, how he respects the law, and
how he respects equal justice under the law.
So I am here to offer my strongest recommendation to this
committee, that you favorably move Jay Bybee to the floor of
the Senate, where hopefully we can approve him as quickly as
possible.
I thank you, Mr. Chairman.
Chairman Hatch. Thank you so much, Senator Ensign. We
appreciate that.
Because of his heavy duties, we will turn to Senator Reid
at this time, so that he can get back to the floor.
PRESENTATION OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT JUDGE FOR
THE NINTH CIRCUIT BY HON. HARRY REID, A U.S. SENATOR FROM THE
STATE OF NEVADA
Senator Reid. Thank you very much, Mr. Chairman. These
hearings are always very educational, not only for the people
on the panel and of course the people that are appearing before
the panel, but for Senators, because, John, I never realized we
had a liberal member of the faculty at UNLV Law School.
[Laughter.]
Chairman Hatch. It would be a very rare faculty if you did
not.
[Laughter.]
Senator Reid. Mr. Chairman, Members of the Committee, I am
very happy to be here to commend my friend, Jay Bybee, to be a
member of the United States Court of Appeals for the Ninth
Circuit. I am pleased that Mr. Bybee will be given an
opportunity to discuss his excellent legal qualifications,
judicial philosophy and other issues with the members of this
committee.
The committee's work is vitally important to gathering a
record upon which each and every Senator may rely on
discharging the constitutional duty we have to consent to the
President's judicial nominees.
Chairman Leahy is not here, but I wanted to commend him for
his hard work during his 15-month tenure as Chairman of the
committee, where he worked to approve 100 judges that were sent
forward by President Bush. During Senator Leahy's chairmanship
these nominees moved in the order the President sent them to
the Senate. Time ran out in the 107th Congress without any
action on Mr. Bybee's nomination. Under Chairman Hatch's
leadership today the Committee will her that Mr. Bybee has
received a well-qualified rating from the American Bar
Association. His legal skills certainly merit this distinction.
Mr. Bybee served as legal advisor in the first Bush
Administration, and has helped to each a generation of new
lawyers as a former professor at the University of Nevada at
Las Vegas Boyd School of Law. I was pleased to introduce with
my friend, Senator Ensign, Mr. Bybee to the Committee just a
short time ago for the position he now holds as Assistant
Attorney General of the Office of Legal Counsel at the
Department of Justice.
And something that is not in my prepared remarks but I
think will, in my estimation, is more important than all these
legal qualifications that this fine man has, and that is what a
fine family man he is. He has a wonderful family. I had the
opportunity on a flight from Florida recently to spend some
time with his wife. She is a lovely woman. She has a great
understanding of what his job is.
So I, without any qualification, ask this Committee to
approve as quickly as possible Jay Bybee to be a member of the
Ninth Circuit Court of Appeals.
Chairman Hatch. Thank you, Senator Reid. You and Senator
Ensign working together, I think make a tremendous difference
with regard to an nominees that you bring forward, so we are
very grateful to have both of you here, and grateful to have
your testimony here.
Senator Reid. Could we be excused, Mr. Chairman?
Chairman Hatch. Sure can.
Congressman Pomeroy, if you can just wait, I think I had
better finish with Judge Quarles.
Senator Mikulski. Mr. Pomeroy, are you okay? Do you have a
vote?
Mr. Pomeroy. No, I am good. I am fine, Senator. Thank you.
Chairman Hatch. If you do, let me know, because I will
interrupt anything.
Mr. Pomeroy. I am just fine.
Chairman Hatch. If we can go to Senator Mikulski, then we
will do that.
PRESENTATION OF WILLIAM D. QUARLES, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND BY HON. BARBARA MIKULSKI, A
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Mikulski. Good morning, Mr. Chairman, and
colleagues on the Judiciary Committee.
I know that the advise and consent function that we perform
in terms of the Judicial Branch is one of our highest and most
important duties. When I always look at who should be a judge,
I look at three criteria, their competence that they bring,
their sense of integrity as individuals, and also their
dedication to protecting core constitutional values and
guarantees.
I come here today with real enthusiasm to recommend that
this Committee approve the nomination for William Quarles to
become a member of the Federal Bench. I wanted to nominate him
10 years ago. The Maryland system put forth his when--if you
might, Bush I or Bush the Elder, or Bush 41, however we do it--
Mr. Quarles was then up for nomination. Well, time ran out,
politics changed. So here we are one decade later, and I come
with enthusiasm to do this. We have a tradition in Maryland
that regardless of who is the party in power, we really put
forward the best of the best to be our judges.
Mr. Quarles brings great intellect and great integrity. He
was born in Baltimore, attended Baltimore area schools, City
College, Catholic University. He comes from a really wonderful
family. His father was a stevedore and dock worker. He learned
the values of hard work and the importance of education. His
sister is a minister. His daughter, Eloise, is a successful
securities lawyer. His dear wife, Mary Ann, works for the
District Court of Maryland as a pretrial service specialist. So
you can see what his roots are.
Having learned hard work and excellent education, he went
on then to be a law clerk for Judge Joe Howard, who was a civil
rights activist and was the first African-American appointed to
the Federal Bench in Baltimore. But he comes not only with a
background that is personal qualities and values; he comes with
a great legal career.
Early on he worked as an Assistant U.S. Attorney in
Baltimore, handling complex and civil litigation. He
coordinated the President's Task Force on Drug Enforcement, got
a lot of awards for that. He left that and then went to one of
our most prestigious white-shoe law firms, Venable, Baetjer and
Howard in Baltimore. You might recall, Mr. Chairman, that is
the law firm that gave us Ben Civiletti, who was an Attorney
General. At Venable he handled civil litigation, antitrust and
appeals. He was promoted to manager of the D.C. litigation
practice.
Then in 1996 he was placed on the Maryland Circuit Court in
Baltimore City. This is Maryland's highest trial court, where
he has now served with distinction, presiding over major civil
and very serious and violent criminal matters. While on the
bench he chaired the Sentencing Review Panel for the Eighth
Circuit, coordinated the electronic filing project. He brings
technology to the bench.
And also, how do his peers feel about him? Well, not only
is he a member of all relevant bars in Maryland, but the
American Bar Association, with the majority of evaluation,
gives him ``very qualified.'' He has written in Maryland Bar,
Inside Litigation. He is active in his church and community and
gets awards from everything from the Boy Scouts to the DEA.
So as you can see, I think we have really a wonderful and
distinguished person to present to you from Maryland. I do it
without reservation and with great enthusiasm, and I hope the
Committee puts him forth to our colleagues. I think you will be
proud as Senator Sarbanes and I are of Judge Quarles.
Chairman Hatch. Well, thank you, Senator Mikulski. Your
recommendation means a lot to the committee, along with Senator
Sarbanes, and we really appreciate you taking time to be with
us today.
And I think, Judge Quarles, you have got some pretty heavy
firepower behind you. And that is good.
Senator Mikulski. And we are saying this about a member of
the other party, you know what I mean?
[Laughter.]
Chairman Hatch. That really is an exceptional thing, let me
tell you. We are grateful to see you here.
Senator Mikulski. Thank you very much, Mr. Chairman.
And, Congressman, thank you for the courtesy.
Mr. Pomeroy. Thank you.
Chairman Hatch. Senator Dorgan, Congressman Pomeroy has
been waiting a long time. Can I just have him--
Senator Dorgan. Absolutely.
Chairman Hatch. I think he needs to get back over to the
House. With your permission and deference, I would like to do
that.
Senator Dorgan. Of course.
PRESENTATION OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NORTH DAKOTA BY HON. EARL POMEROY, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH DAKOTA
Representative Pomeroy. Mr. Chairman, thank you. I will be
brief, but I do want to commend to your attention the
President's nomination for the opening in the bench in North
Dakota.
Judge Ralph Erickson is someone I have known for 23 years.
Prior to his time as the District Bench in 1994, Ralph
throughout those years was an active Republican and I have been
an active Democrat, but we have maintained a close friendship.
I have enormous respect for him. After assuming his role on the
District Bench we have really been able to see what a wonderful
jurist Ralph has proven to be. He is competent, fair minded,
hard working, conscientious, has impeccable integrity, and as a
result has really demonstrated a superb judicial temperament.
He has told me that his personal philosophy is to treat
lawyers like he would like to be treated when he was a lawyer,
and that means being prepared, listening, understanding the law
as best as possible. As he has applied these values, it has
shown, because he has run for re-election to the bench without
opposition, and the lawyers in this poll you referenced in your
introductory remarks, Mr. Chairman, a survey of Fargo/Morehead
lawyers rated him simply the best, the best of the District
Bench.
So I think the President has made a superb choice in
advancing for your consideration Judge Ralph Erickson, and I
echo my whole-hearted support. He will be an excellent addition
to the bench in North Dakota.
Chairman Hatch. Well, thank you, Congressman Pomeroy. We
appreciate you taking time to come over to the lesser body and
speak to us. We are grateful to have your testimony, and that
weighs very heavily in favor of the Judge.
Representative Pomeroy. Thank you, Mr. Chairman.
Chairman Hatch. Senator Dorgan, we are honored to have you
here.
PRESENTATION OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NORTH DAKOTA BY HON. BYRON DORGAN, A U.S.
SENATOR FROM THE STATE OF NORTH DAKOTA
Senator Dorgan. Senator Hatch, thank you very much.
I am pleased to be here. I will not add too much to what
Congressman Pomeroy said. Congressman Pomeroy, Senator Conrad
and I feel all pretty much the same about this candidate. Judge
Ralph Erickson has been nominated. I fully support and
enthusiastically support his nomination. I think he will make
an excellent Federal Judge in the U.S. District Court in North
Dakota, on the east side of North Dakota.
He is a native of Thief River Falls, Minnesota. His J.D.
was received with distinction from the University of North
Dakota. He spent 9 years in private practice before becoming a
District Judge, Cass County Magistrate first, then a District
Judge for the East District Judicial District. He has presided
over some of the most high profile cases in our region, and as
you indicated, and as Congressman Pomeroy did, the largest
newspaper in our State indicated that he is the best in the
region in their evaluation.
I think the staff on both sides of the Judiciary Committee
received that word when they called around North Dakota as
well. The kind of reaction they received, fair, hard working,
even tempered, thoughtful, good reputation. Those are exactly
the kinds of things you want to hear about a judge.
My understanding is he is one of the few people who will
come before this Committee who has actually been in prison. He
as an intern at Leavenworth when he was in law school.
[Laughter.]
Chairman Hatch. We like to hear that.
[Laughter.]
Senator Dorgan. He may want to tell you more about that,
but he also is someone--I had about 2 months ago the
opportunity to sit in his courtroom. I asked if I could be
allowed to sit in the Youth Drug Court that he presides over.
And I sat there I guess an hour and a half or so that day and
watched, late afternoon, and watched Judge Erickson deal with
some young offenders, young men and women who came before him.
I must tell you, not only is that a terrific idea and a very
important part of our system, but I was very impressed with the
way Judge Erickson handled that. He is a credit to the
Judiciary, and if we are able to put more and more people like
Judge Ralph Erickson on the Federal Bench, the Judiciary in
this country will be in very good hands.
So I am here to say that this is an excellent nomination. I
am proud to support him. I think you all will be very proud to
confirm that with an affirmative vote, and I know that he has
been accompanied by his wife and his children and others, and I
am sure he will introduce them at an appropriate time.
Mr. Chairman, thank you for holding the hearing and I hope
we will move this nomination quickly.
Chairman Hatch. Thank you very much, Senator Dorgan. We
really appreciate your taking time from what we know is a very
busy schedule. Thanks for your honoring the judge.
We will now turn to the distinguished Democratic leader on
the committee.
Senator Leahy. Thank you, Mr. Chairman.
Like all of us, I was--
Chairman Hatch. Senator, could you--
Senator Leahy. Sure.
Chairman Hatch. I forgot to do one thing. Senator Conrad
very much wanted to be here today to introduce Judge Erickson,
but unfortunately had a scheduling conflict he just could not
change, so I am pleased to submit his written statement for the
record in favor of Judge Erickson.
[The prepared statement of Senator Conrad appears as a
submission for the record.]
Chairman Hatch. I am sorry. I just thought that would be
better to get that in at this time.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. And I am sorry I missed our colleagues, but
each one of them have talked to me, at one time or another,
about the nominees who are here. Like all of us, we end up with
about three different committees going on at the same time.
Here, we are going to hear four nominees for lifetime
appointments to the Federal bench--one to the Ninth Circuit
Court of Appeals, three to District Courts in North Dakota,
Maryland and Ohio.
The arrangement, one Court of Appeals judge, three District
judges, basically follows years of precedent in the way we
schedule these. I think it is more reasonable and more sensible
than what we faced last week, when we had three Circuit Court
nominees at one time, all three controversial, and there in a
hearing until about 10 o'clock at night, a rather rushed
hearing. Here, having one Circuit Court nominee, we are able to
give each of the people who have traveled here with their
families and friends the kind of attention they deserve.
I compliment the Chairman for doing it this way, as
compared to last week. I thought having three controversial
nominees scheduled together meant that none were adequately
discussed. At the same time, I do not want to go back to the
days, for example, when this Committee did not hold a single
hearing on a judicial nominee until mid-June, as was the case
in 1999. I think we could work on more fair schedules, as we
have had in the past 17 months, where we were able to get 100
judges through in that time.
Today, the Circuit Court nominee before us is Jay Bybee. He
is currently serving in the Justice Department as an assistant
attorney general for the Office of Legal Counsel, OLC, and the
head of OLC serves as the Attorney General's lawyer, and
advises him on legal issues underlying Administration and
Department policies.
In the wake of September 11th, Mr. Bybee's responsibilities
have included rendering opinions on many controversial
decisions that have come from the Justice Department, including
its ability to try terrorist suspects in military tribunals;
its ability to use State and local police to make arrests for
civil violations of immigration laws; its use of gun purchase
databases to track terrorist suspects; its decision that,
contrary to Secretary of State Colin Powell's opinion, they did
not need to declare the al Qaeda and Taliban detainees
prisoners of war under the Geneva Convention, and I assume
other controversial policies.
So I am interested in his views on these questions of law.
I am concerned the role he may have played in perpetuating the
culture of secrecy that has enveloped the Justice Department
over the past couple of years. The office which he heads has
long been a leader in sharing its work with the American
public, and in recent years that office even began publishing
its legal opinions on a yearly basis. Many of these opinions
are available in legal databases. I think they provide a very
valuable tool for lawyers and nonlawyers, just to understand
how the legal underpinnings of our Government work.
But of the 1,187 OLC opinions that have been published on
the Lexis legal database since 1996, only three are from the
period when Mr. Bybee headed the office. Up until now, there
has also been a history of OLC releasing numbers of opinions on
the Department of Justice website, where all Americans, from
students to retirees, can, with the click of a mouse, pick them
up. They have also responded, of course, to requests by the
Judiciary Committee, under either Republican or Democratic
leadership, but that practice, too, has ended under Mr. Bybee's
leadership at OLC.
A Government works best when it is open and answers
questions, and I am worried that we see a change from both
Republican and Democratic administrations of openness, and if
we go to this nondisclosure, then I think it follows this
pattern of an expansive view of executive privilege that has
marked the time that Mr. Bybee has been in Government, and I
want to hear from him on that issue. This is something, this
lack of openness, concerns have been expressed by me, by
Senator Specter, by Senator Grassley, by Senator Hatch, by
Senator Schumer and by a number of other son this committee.
Now, the District Court nominees from North Dakota, Ohio,
Maryland appear to be more moderate and bipartisan than the
President's Circuit Court nominations.
Judge Erickson is currently a judge in the East Central
District Court of North Dakota. He is supported by both of the
Democratic home-State Senators, well-respected in his community
as being a hardworking, thoughtful, fair, even-tempered judge.
Incidentally, I was pleased to see, Mr. Chairman, that Judge
Erickson has been involved in developing an initiative in Fargo
to assist juveniles involved in drug crimes, and he will be
joining the other judge from North Dakota that we approved when
I was chairman, Judge Hovland.
We will hear from Judge Quarles, who is nominated in the
U.S. District Court for the District of Maryland. He has served
as an attorney in private practice, assistant U.S. attorney in
Baltimore before becoming a Circuit Judge of the Circuit Court
for the City of Baltimore. He is supported by both the
Democratic Senators from his home State.
And Judge Frost, nominated to the U.S. District Court for
the Southern District of Ohio, has been on the bench for 12
years. He is either currently or formerly a member of numerous
charitable and civic organizations. I would like to note that
he has been very principled in ensuring the organizations of
which he is a member do not discriminate, including, if he
thought that they did, to leave. I would also note that he is
supported by both the Senators from his home State, both
Senator DeWine, a valued member of this committee, and our
friend, Senator Voinovich, a highly respected member of the
Senate.
So thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Leahy.
We will now turn, last, but not least, and very
importantly, to our colleague on the committee, Senator DeWine,
to speak about our judge from Ohio.
PRESENTATION OF GREGORY L. FROST, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF OHIO BY HON. MIKE DEWINE, A U.S.
SENATOR FROM THE STATE OF OHIO
Senator DeWine. Thank you, Mr. Chairman, very much. It is
certainly my pleasure to introduce to the Members of the
Committee Judge Gregory Frost. My friend and colleague from
Ohio, Senator Voinovich, certainly wanted to be here with us
today, but unfortunately will not be able to attend, but he did
ask me, Mr. Chairman, to submit his statement to the record,
and I would ask, with unanimous consent, it be made part of the
record.
Chairman Hatch. Without objection.
[The prepared statement of Senator Voinovich appears as a
submission for the record.]
Senator DeWine. Judge Frost, as has been pointed out, has
been nominated by the President of the United States to serve
as a United States District Judge for the Southern District of
Ohio. He currently serves as judge on the Licking County Common
Pleas Court of Newark, Ohio. So I would like to welcome to the
Committee several people who are here to support Judge Frost:
First, his wife Kristina Dix Frost and his son Wes. We
welcome both of them to the committee. Kris and Wes, thank you
very much for being here with us today.
I would also like to welcome Judge Frost's mother Mildred;
his mother-in-law Helen Dix; his sister Beth Thomas and her
husband Kim; as well as Doug McMarlin, a good friend of the
Frost family; Sarah Barrickman, Judge Frost's law clerk; and
Shawn Judge, a friend of Judge Frost.
Also here to show their support are Mike Nicks, an attorney
from Newark, as well as Nancy Dillon and a man named Leonard,
both friends of the Frost family.
Judge Frost is a 1971 graduate of Wittenberg University.
Judge Frost received his law degree in 1974 from Ohio Northern
University. Judge Frost's long career in both public service
and private practice makes him well-qualified for the District
Court.
He has been a Licking County judge for the past 19 years,
serving as Municipal Court judge from 1983 to 1990, and then,
Mr. Chairman, as Common Pleas judge from 1990 until the
present.
While serving on the bench, Judge Frost was selected to
take the lead in writing the jury instructions for the entire
State of Ohio. Mr. Chairman, of course, we all know the
importance of jury instructions. These jury instructions, of
course, provide the framework in which all jury cases in the
State of Ohio are deliberated.
Prior to his service on the bench, Judge Frost was a
partner in the law firm of Schaller, Frost, Hostetter and
Campbell in Newark. While with that firm, he also served as an
assistant Licking County prosecutor from 1974 until 1978.
Judge Frost is an excellent jurist whose dedication and
graciousness have earned him the respect of those inside and
outside of the courtroom.
Now, Mr. Chairman, I was particularly struck by a letter
Gary Walters, the Clerk of Courts in Licking County, wrote to
the Newark Advocate newspaper. This is what he said regarding
Judge Frost, and I quote:
``He arrives to work well before daybreak and before anyone
else in the courthouse. He works hard all day, and routinely is
the last one to leave in the evenings.'' Similar to you, Mr.
Chairman. I note that from having an office right next to
yours.
Chairman Hatch. That is a very habit.
Senator DeWine. I know. I do not think he plays music as
loud as you do, though, Mr. Chairman. He probably does not
write music either, I do not think.
[Laughter.]
Senator DeWine. ``His work ethic is second to none. As
Clerk of Courts, I am in the courtroom with Judge Frost. He
recognizes that jury service is difficult and sometimes
unpleasant. With his sense of humor and his willingness to
explain every step of the process, he puts the jurors at ease
and makes the experience an educational one. Many jurors have
made a point to tell me that their jury experience was
extraordinarily valuable because of the attention Judge Frost
devoted to preparing them for their duties.''
Mr. Chairman, this statement provides, I believe, an
excellent illustration of both Judge Frost's temperament in the
courtroom and his dedication to his position.
In addition to that, Judge Frost has committed a great deal
of time and energy to his Licking County community. He has
served on the board of directors of the Licking County
Alcoholism Prevention Program, and the Maryhaven Alcohol and
Drug Addiction Treatment Center in Columbus.
He is also an Executive Committee member of the Central
Ohio Council of the Boy Scouts of America. Indeed, as a
lifelong resident of Licking County, Judge Frost has made
significant contributions to his community. Without question,
Judge Frost will be a fine addition to the District Court. He
has the experience, Mr. Chairman, the temperament and the
dedication to be an excellent Federal judge.
I might add, Mr. Chairman, on a personal note, that I have
known Judge Frost for many, many years, and I believe that he
is the type person that we need to serve on the Federal
District Court. I strongly support his nomination, and I thank
the chair for the time.
Chairman Hatch. Thank you, Senator.
Before we begin, let me just say that I want everybody here
on the Committee and all staff to listen very good to what I
have to say. I was outraged today to read all over the paper
today, including in Al Kamen's column in the Washington Post,
information that was contained in the ``confidential'' section
of the committee's file on Mr. Bybee. This is wrong. It is
outrageous, and it is dirty politics, and it is violative of
Committee rules that are very, very important rules that have
been abided by. This is the worst I have seen since the
Clarence Thomas hearings.
Now, Senator Leahy, when he was chairman, changed the
Committee questionnaire to move some of the nominees'
information, normally in the FBI files, into the
``confidential'' section. Now, I want everybody to know that we
are going to go back to what the Committee has always done
before. The FBI files are to be held in confidence, and nobody
is to breach that confidence, and I think this is a perfect
illustration why we need to do that.
So, just so everybody is put on record, we are just not
going to put up with that type of stuff, and I am going to
investigate it and see if we can get to the bottom of it. No
nominee should be treated any differently than we treated the
nominees during the Clinton administration. They are to be
treated exactly the same, whether they are President Bush's
nominees or anybody else's.
Having said that, Mr. Bybee, if you could get ready to
stand and raise your right arm to be sworn.
Do you swear that the testimony you are about to give
before the Committee will be the truth, the whole truth and
nothing but the truth so help you God?
Mr. Bybee. I do.
Chairman Hatch. Thank you.
Senator Kennedy. Mr. Chairman, I wanted to have the
opportunity to inquire of Mr. Bybee. We are, as you know, there
is an important conference on Haitian refugee policy, which is
a matter of very important consequence to our Refugee Committee
here, which I was at earlier today, and now I understand that
the Secretary of State is going to be addressing the Security
Council on one of the most important probably moments, in terms
of American history, which will be very significant on the
issues of war and peace.
So I am not going to be able to be here for the time of Mr.
Powell's speech to the Security Council. I think I have a
responsibility to do that, but I do have questions, so I will
try and work this out with the chair. I do not have enormous
numbers, but I do have questions that I would like to ask the
nominee at some time.
Chairman Hatch. Well, we will accommodate the distinguished
Senator and former Chairman of the committee, of course.
We would like to finish the hearings as soon as we can, but
if you could come right back--
Senator Kennedy. I would be glad to come over right after
Mr. Powell's address when it is finished.
Chairman Hatch. If you will, that would be great. We will
reserve that time for you.
Senator Kennedy. Thank you.
Chairman Hatch. What we may do is ask some questions of Mr.
Bybee and then bring up the other judges until you come back.
Senator Kennedy. That is fine. Thank you. I thank you, Mr.
Chairman.
Chairman Hatch. Thank you, Senator Kennedy.
Well, let us begin then, and we will reserve that time. I
would like to see that myself, but I think we better move ahead
here.
Mr. Bybee. Thank you, Mr. Chairman.
Chairman Hatch. I will be able to see it on C-SPAN, I am
sure. But I do not blame any Senator for wanting to see that.
This is an historic moment, and I personally just want to
express my regard for Colin Powell and the terrific job he is
doing as Secretary of State and for his resolute strength in
this administration. I have tremendous respect for him, always
have, and it has grown in my eyes even more since he has been
acting as Secretary of State. So this is an important, historic
time, and I cannot blame any Senators for wanting to see that.
I would like to myself.
But we are going to move ahead here so that we do not
inconvenience our judges, and then what we will have to do, Mr.
Bybee, if we finish with our questions, we will move ahead with
the other judges and put you in abeyance until Senator Kennedy
and any other Democrat or Republican who wants to question will
come back.
But let me just ask a few basic questions of you so that we
uncover some of the things that I think are critical.
The Founding Fathers believed that the separation of the
powers in the Government was critical to protecting the liberty
of the people. Thus, they separated the legislative, the
executive and the judicial powers into three different branches
of Government, so-called co-equal powers: The legislative power
being the power to balance moral, economic and political
considerations and make law; the judicial power being the power
only to interpret laws made by Congress and by other people,
which sometimes involve the President, through Executive Order
and otherwise; the judicial power being the power to interpret
laws, something that we have really been concerned about on
this Committee because of the actions of some of the judges and
the various Circuit Courts of Appeals and, in particular, the
Ninth Circuit Court of Appeals.
In your view, is it the proper role of a Federal judge,
when interpreting a statute or a Constitution, to accept the
balance struck by the Congress of the people or to rebalance
the competing moral, economic and political considerations?
Mr. Bybee. Thank you for that thoughtful question, Mr.
Chairman.
The separation of powers was fundamental to our
constitutional design, and fundamental to that design was the
idea that neither of the branches, none of the branches, should
exercise any of the power of the other branches. When the
Federal Courts seek to balance important moral or political
decisions, they usurp the power of this body, the Congress of
the United States, and that is not the appropriate role of the
courts of the United States.
They have been given substantial powers under our
Constitution, but it is the power of interpretation, not the
power of decision in the first instance, Mr. Chairman.
Chairman Hatch. Thank you. You know, I have been very rude
here because I have not given you a chance to even make an
opening statement and, above all, I would like you to introduce
your family and your friends who are here. I apologize to you.
I am so anxious to get you through that--
[Laughter.]
Chairman Hatch. I think sometimes I place that above
everything else. So please forgive me, but I would like you to
make any statement you care to make, and of course introduce
your family and friends who are here.
STATEMENT OF JAY S. BYBEE, OF NEVADA, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT
Mr. Bybee. Thank you, Mr. Chairman. I have many members of
my family here that I would like to introduce, and I have many
friends and colleagues who have attended as well. I will
forebear from introducing friends and colleagues in the
interest of time, but I appreciate the opportunity of
introducing my family.
Seated behind me is my lovely wife Dianna, my wife next
week as of 17 years. We have four children, and I will ask them
to stand because they may be a little short. My oldest, Scott,
is 15; my son David is 12; my daughter Alyssa is 10; my son
Ryan is 8.
Chairman Hatch. That is great. We are glad to have you
young people with us, I will tell you.
Mr. Bybee. My mother, Joan Bybee is here in the front row
as well. Someplace in the back are my wife's parents, Harvey
and Nada Greer, who came in last night from Sacramento,
California. I appreciate them making the trip.
Chairman Hatch. Please stand as well so we can see you.
Great. Glad to have you here. Welcome.
Mr. Bybee. I have all of my siblings and their spouses are
here. My brother David and his wife Rene.
Chairman Hatch. Please stand. We want to look everybody
over. These are important positions.
[Laughter.]
Mr. Bybee. My sister Karen and her husband Jeff Holdaway,
and two of their children, Christopher and Cameron Holdaway.
Chairman Hatch. Karen worked up here on Capitol Hill and
did a great job while she was here.
Mr. Bybee. My youngest brother Lynn and his wife Melissa.
Chairman Hatch. Welcome.
Mr. Bybee. Have I left anybody out? Oh, my niece Kelli
Frazier is here.
Chairman Hatch. Great. Nice to have you, Kelli.
Mr. Bybee. We have additional extended family and
additional friends in the audience, Mr. Chairman. Thank you
very much.
Chairman Hatch. Yes, I see a lot of your friends out there
in the audience. It is just great. Welcome to all of you. We
are grateful that you here. I have tremendous respect for Mr.
Bybee, and I think everybody who has had any contact with him
also shares that respect.
Do you have anything else you care to say?
Mr. Bybee. No, Mr. Chairman, but I do thank you for holding
this hearing and affording me the opportunity of talking before
the Committee today.
Chairman Hatch. We will give 10 minutes for each person to
ask questions and maybe some more to others who want to ask
some more.
The making of the law is a very serious matter. To make
constitutional or statutory law, the text of a proposed
amendment or statute must obtain a set number of formal
approval of the people's elected representatives. Now, this
formal approval embodies the express will of the people,
through their elected representatives, and thus raises the
particular words of a statute or constitutional provision to
the status of binding law.
Would you agree that the further a judicial opinion varies
from the text and original intent of a statute or
constitutional provision, the less legal legitimacy it has?
Mr. Bybee. Yes, Mr. Chairman. This is a very important
question, and it is a very important challenge for the
judiciary to recognize that Congress is a collegial body,
representing a diverse group of Americans and that Congress has
come together and has undertaken a difficult process of
arriving at consensus, and that ought not to be undone by a
single judge or by even a single panel of judges who are not
representative and have been given certain protections under
our Constitution that indeed ensures that they will not be
subject to the kind of political pressure that this body is
rightfully subject to, that kind of--that's a check of the
people.
And for a judge or for any panel of judges to undertake
that responsibility is to assume the responsibility of the
legislature and act as a political body.
Chairman Hatch. Do you think that it is the proper role of
a Federal judge to uphold the legitimate will of the people, as
expressed in the law, or to basically impose his or her own
view of what that judge thinks the law to be?
Mr. Bybee. Mr. Chairman, the responsibility of the judge,
as Chief Justice Marshall said as early as Marbury v. Madison,
it is to say what the law is.
Chairman Hatch. Well, under what circumstances do you
believe it appropriate for a Federal Court to declare a statute
enacted by Congress unconstitutional?
Mr. Bybee. Mr. Chairman, that is a very good question. That
is a question the law professors are always very excited to
discuss in class, and I think it is a hard challenge for judges
to undertake that responsibility to review for
constitutionality statutes enacted by Congress.
On the one hand, Senator, any judge should begin from the
assumption that legislation is constitutional. We must begin
from that because you have taken the same oath to uphold the
same Constitution that the judges have.
Now, aside from that, it is the responsibility of the
Judicial Branch, from time-to-time, to strike down where it
believes that Congress has overstepped its bounds in certain
legislation. In those rare cases, the judiciary should examine
carefully the text of the statute and ensure that it really
does not comport with the plain text of the Constitution.
Chairman Hatch. In general, the Supreme Court precedents
are binding on all lower Federal Courts and all Circuit Court
precedents are binding on the courts within that particular
circuit. Now, are you committed to following the precedents of
higher courts faithfully and giving them full faith, and credit
and effect, even if you personally disagree with these
precedents?
Mr. Bybee. Senator, any judge who assumes this
responsibility must set aside his or her personal beliefs as
they enter the courtroom door. They are not appointed in their
personal capacity as a judge, and it is their responsibility to
interpret the law faithfully.
Chairman Hatch. What would you do, if you conclude very
honestly, and you believe that the Supreme Court or the Court
of Appeals had seriously erred in rendering a decision, would
you nevertheless apply that decision or would you apply your
own best judgment on the merits?
Mr. Bybee. Senator, one of the Framers commented that the
Constitution was established that it might be a Government of
laws and not a Government of men. I would faithfully apply the
precedent of my circuit and the precedent established by the
Supreme Court. I think to do otherwise would be chaotic, and I
think disserves the people who then cannot count on
understanding what the law is. They have no way of knowing what
law will be applied if a judge is free to ignore the dictates
of higher courts.
Chairman Hatch. It would not be long for the Constitution
to go down the drain if we had judges just doing what they felt
within their souls was right, rather than applying the law, as
the precedents demand.
Mr. Bybee. It would be chaotic, Senator.
Chairman Hatch. Yes, it would.
Well, if there were no controlling precedent, dispositively
concluding an issue with which you are presented in your
circuit, to what sources would you apply to obtain persuasive
authority?
Mr. Bybee. Thank you, Mr. Chairman.
If I faced a situation in which there were no controlling
precedents, then I would begin with the text of the statute.
That is the clearest record of what Congress meant. I begin
with the text of the statute.
In those cases in which there might be some ambiguity that
cannot be resolved by referring directly to the text of the
statute or to the broader structure of the act that it is a
part of or to some clear understanding or history, then I would
look to other tools that would help me understand what Congress
meant.
Chairman Hatch. In what circumstances, if any, do you
believe an appellate judge should overturn precedent within his
or her own circuit?
Mr. Bybee. Mr. Chairman, that's a hard question, and I
think that's one that each judge will have to decide for
himself or herself. The second Justice Harlan I think took the
position that he would dissent three times to make his views
known where he believed that the Court had erred, and then he
would accept the circuit precedent or the Supreme Court's
precedent.
In the case where you have a firm belief that the Court has
plainly made a mistake Circuit Courts may revisit their
decisions, but I think that would take a very, very careful
weighing of what compelled the decision in the first place, how
long it had been in place, what kind of reliance people or
companies or States had placed upon that decision, and I think
one would have to think very carefully, long and hard, before
one would overturn it.
Nevertheless, Senator, there certainly are a number of
instances in the Supreme Court and in the Courts of Appeals
where courts have been compelled to overturn themselves where
they believed that they did make a mistake.
Chairman Hatch. Thank you. My time is up. I am going to
turn to Senator DeWine.
Senator DeWine. Mr. Bybee, Senator Leahy raised some
important points about some activities in which the Department
of Justice has engaged. As you are aware, this Committee does
have jurisdiction over oversight over the Department of
Justice. Let me ask you whether you feel you have authority to
answer questions today on behalf of the Department of Justice.
Mr. Bybee. No, Senator, I do not.
Senator DeWine. If you did have authority to answer these
questions, would you be able to answer questions regarding your
conversations or recommendations to the Attorney General?
Mr. Bybee. Senator, it would be inappropriate for me to
reveal confidences that have been placed in me by my clients.
That is fundamental to an attorney's responsibility. In the
event, Senator, that there were some kind of an oversight
hearing, and the administration had asked me to appear
officially here, there would be things that I could represent
of the administration's position, but even in that
circumstance, Senator, I believe it would be inappropriate for
me as an attorney to reveal the conversations or confidences
that have been placed in me by my client.
Senator DeWine. Mr. Bybee, you served as a law professor,
correct?
Mr. Bybee. Yes, sir.
Senator DeWine. You currently serve in the Office of Legal
Counsel at the U.S. Department of Justice.
Mr. Bybee. It's been my privilege, Senator, for the last
year-and-a-half.
Senator DeWine. And you aspire to serve on the Circuit
Court.
Mr. Bybee. If I am so fortunate as to be confirmed by this
committee, Senator, it would be a great honor.
Senator DeWine. Please, for me, compare and contrast those
three positions. You have served in two of them. You would like
to serve in a third. What would be the differences, difference
in mind-set, difference in role, difference in function.
Mr. Bybee. Thank you, Senator. I think it's important--
Senator DeWine. Difference in approach, excuse me.
Mr. Bybee. I think it's important to remind myself of what
those differences are. I have had the privilege of seeing many
different aspects of the law. I have been fortunate enough to
be an advocate. I was an advocate in private practice and with
the Department of Justice. I was a law professor for 10 years,
and now I find myself in a position of counsel to the Attorney
General and to the White House counsel in my current role at
the Department of Justice.
As an advocate, I had an important task to represent
accurately, but vigorously, the interests of my client in
courts of the United States. As a law professor, I had a
different role. I took on a different set of responsibilities
when I first went to LSU and then later to UNLV. My
responsibility was to teach a new generation of law students
about the Constitution, about administrative law, the
Administrative Procedures Act and about civil procedure in the
Federal Courts of the United States.
I worked very hard at teaching them what the law says, but
one of the responsibilities of a law professor is to stretch
the minds of his students. It is to probe, to push to prod, to
make them think critically about the decisions that they are
reading. That is a different kind of role.
And, as a faculty member, it was also my responsibility, as
a responsible faculty member, to seek to publish. And as an
academic, one thing that academics do is challenge each other.
We seek to explore the law in a way that is not the same that
we would in a judicial role. My role as a law professor is not
necessarily to describe the law as it is, but again to examine
critically, just as I have encouraged my students to do, to
encourage myself and my colleagues to think more critically
about important and sometimes controversial topics in the law.
A judge is neither a vigorous advocate nor a law professor.
A judge is not responsible for vigorously prodding the law and
pushing it in directions that it hasn't been pushed, but rather
for reflecting on what Congress has said and how the Supreme
Court and other Federal Courts have interpreted that. It is a
very, very different role, Senator, and I hope that I will
always keep that role in mind.
Senator DeWine. Mr. Bybee, did you feel that when you were
a law professor that part of the requirement of being a law
professor was to publish? You indicated that, and I have
certainly heard that from other professors. Is that part of the
job?
Mr. Bybee. Yes, Senator DeWine. Most academic institutions
have a ``publish or perish'' rule. It is generally a
requirement for tenure that one have published in responsible
law journals, and one way of attracting attention in the
Nation's student-edited law journals is to take unusual
positions or write about things that haven't been covered
before, and that was a way, both of informing myself as a law
professor and challenging my students.
Senator DeWine. It is totally irrelevant to today's
hearing, but I have always found that to be, as a consumer and
a parent of eight children who are going to college or about to
go to college, I always find that to be rather irritating.
[Laughter.]
Senator DeWine. As a parent who wants teachers in the
classroom who teach, and I like it that the teachers are
challenging, but what they publish I find to be rather
irrelevant, but that is just an aside from a crotchety parent,
that is all.
Mr. Bybee. As a law professor, Senator, it pains me to hear
that, but I acknowledge the truthfulness, nonetheless.
Senator DeWine. I want you in the classroom challenging my
student. I do not care what you do outside of the classroom,
frankly.
I found your writings to be rather interesting, and so that
is why I asked the question about your writings and the
difference between your role as a professor and your other two
roles. So I think I have found your answer to be interesting,
but you are in the process of stretching minds at that point.
Mr. Bybee. That is exactly our role, and if I wasn't doing
that as a law professor, Senator, I'm not doing my job.
Senator DeWine. I understand.
Nothing further, Mr. Chairman.
Chairman Hatch. Thank you.
We will turn to Senator Saxby, at this point.
Senator Chambliss. Thank you, Mr. Chairman.
Actually, my questions have already been asked and have
already been answered by Mr. Bybee with the very probing
questions that the Chairman had. My main concern, Mr. Bybee, is
that both our District Court and our Circuit Court judges come
before us to say that they are willing to interpret the
Constitution as it reads, and I think you have answered that
very succinctly, that you are not going to be putting your
personal impressions into the decisions you may make.
You are obviously very well-qualified, from an academic
background, as well as your legal background. And it is
encouraging to me, as a lawyer, to see individuals of your
competence, your quality and your background willing to commit
yourself to public service. We look forward to your
confirmation.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Saxby. We appreciate
that. Senator Chambliss, I mean. I am so used to calling him
Saxby. But we are happy to have you on this committee. It is
going to make a great deal of difference to all of us, I think.
Mr. Bybee, I do not have any further questions. I know you
very well, and I know what a decent, honorable person you are,
and I support your nomination very strongly, as I hope
everybody will on this committee.
As you know from our meetings today, and earlier, you are
aware of how thorough this review process on, especially
Circuit of Appeals judges really is, but for all judicial
nominees, and you put up with a great deal, with intrusive and
invasive questions and interviews. You have passed very tough
scrutiny by the White House, the Department of Justice, the
FBI, the committee, and the American Bar Association as well,
and you have satisfactorily and appropriately answered my
questions today, and you will, no doubt, receive some written
follow-up questions following today's hearing.
As you know, Senator Kennedy has asked to question you
after the Secretary of State's remarks up at the U.N. Senator
Schumer has also asked for time to ask you some questions. He
said he will be here at 11 o'clock. So I will ask you at this
point to step aside, so that we can move on to the other three
judgeship nominees and hear from the second panel, and then we
will have you return as soon as Senator Kennedy or Senator
Schumer or any other Senator on the Committee desires to
question you.
Mr. Bybee. Thank you very much, Mr. Chairman.
[The biographical information of Mr. Bybee follows.]
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Chairman Hatch. Thank you so much.
If we could call our three other nominees to the witness
table, and if you would all raise your hands. Please raise your
hands to be sworn.
Do you swear that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth so help you God?
Judge Erickson. I do.
Judge Quarles. I do.
Judge Frost. I do.
Chairman Hatch. Thank you very much.
We are delighted to welcome all of you here. It is a signal
honor to be recommended by this President or any President for
a position in the Federal Courts, and we feel very grateful
that the three of you are willing to accept these positions. We
know there is a degree of sacrifice in serving in the Federal
judiciary, and you do become kind of very much isolated after a
while, but we are grateful to all of you for doing that.
Why do we not start with you, Judge Erickson, then you,
Judge Quarles, and then you, Judge Frost. Introduce your family
and friends here and make any statement you would care to make.
STATEMENT OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NORTH DAKOTA
Judge Erickson. Thank you, Chairman Hatch. I have no
statement that I would like to make at this time, but I would
like to introduce some members of my family that are present.
My wife, Michele, and my two daughters, Elizabeth, age 5,
and Hannah, age 7; my sister Robyn Gonitzke and her daughter--
Chairman Hatch. Good to have you here.
Judge Erickson. --her daughter, my niece Brittany.
Chairman Hatch. Brittany.
Judge Erickson. My brother Paul and my lovely sister-in-law
Katie, and a very dear friend of mine, a member of the bar from
North Dakota, who is also a priest and teaching in Baltimore,
Father Phil Brown.
Chairman Hatch. Father, we are happy to have you here. We
are happy to have all of you here, and we hope you enjoy these
proceedings. I anticipate that you will.
Judge Quarles?
STATEMENT OF WILLIAM QUARLES, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MARYLAND
Judge Quarles. Good morning, Mr. Chairman.
I, too, have no prepared speech, but I would like to thank
you and the members of the Commission for providing me and the
rest of the nominees this opportunity to be heard this morning.
I also want to thank Senator Sarbanes and Mikulski. They
spoke about the tradition that they have followed in
recommending nominations to the District Court. They have both
been extremely helpful and supportive, and I do want to thank
them for that.
I also want to introduce my wife, Mary Ann Quarles, who is
here.
Chairman Hatch. Happy to have you here, Mrs. Quarles.
Judge Quarles. We spared you the trial of bringing our
terrier Nellie here in the interest of a quieter hearing.
[Laughter.]
Judge Quarles. Thank you for the opportunity, sir.
Chairman Hatch. Well, thank you, Judge. We welcome you,
Mrs. Quarles, to the committee.
Judge Frost?
STATEMENT OF GREGORY L. FROST, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF OHIO
Judge Frost. Mr. Chairman, thank you for having us here
today and having this hearing.
I recognize the hard work that this Committee does. It's a
privilege and an honor for me to be here, and I appreciate all
of your hard work.
Although Senator DeWine, in his fine remarks, introduced my
family and friends, I would like to reintroduce them because if
I do not, I will hear about it later.
Chairman Hatch. That is very judicious of you.
[Laughter.]
Judge Frost. First, my wife, Kris. Thank you.
Chairman Hatch. Nice to have you here.
Judge Frost. My mother Mildred Frost and my mother-in-law
Helen Dix are present.
Chairman Hatch. We are honored to have both of you here.
Judge Frost. My son Wes Frost and his friend Amanda Leonard
are present.
Chairman Hatch. Good. Welcome to the hearing.
Judge Frost. Beth Thomson, my sister, and my sister-in-law
Kim Thomson.
Chairman Hatch. Nice to you have Thomsons here.
Judge Frost. Shawn Judge, a friend, is here, and Sarah
Barrickman, my law clerk, is here.
Chairman Hatch. Welcome. Glad to have you.
Judge Frost. Nancy Dillon is a friend who is here, Doug
McMarlin, who I believe just arrived and is in the back of the
room, is here.
Chairman Hatch. Welcome, Nancy and Doug.
Judge Frost. And then, finally, Mike Nicks, who is a
practicing attorney in my hometown of Newark, Ohio.
Chairman Hatch. Nice of you to come, Mike. Glad to have you
here.
Judge Frost. Thank you, Mr. Chairman.
Chairman Hatch. I am going to turn the hearings over to
Senator DeWine. And I am hopeful I can get back, but until I
do, Senator DeWine is going to be in charge.
Senator DeWine. [Presiding] Let me welcome each one of you.
Thank you very much for joining us. Let me assure you this will
be a rather painless experience.
I am not familiar with two of your States, the judicial
system, but each one of you, I assume, is the initial trial
court judge; is that correct? Each one of you has the felony
trials?
Judge Erickson. That's correct.
Judge Quarles. Yes. As Senator, I believe, Mikulski said,
we have two trial levels in the State of Maryland; one is the
District Court level, which is essentially misdemeanors and
certain civil matters. The next level, the level in which I
serve, is the Circuit for Baltimore City. Those are the jury
trials, serious felonies, and general civil jurisdiction.
Senator DeWine. Judge Erickson, that would be the same?
Judge Erickson. Yes, our District Court is a general
jurisdiction court. I like to say we take cases from dog-at-
large to murder.
Senator DeWine. Of course, Judge Frost, our Common Pleas is
basically the same.
Judge Frost. Felony jurisdiction and all civil cases over
$10,000.
Senator DeWine. Let me ask each one of you, and maybe I
will start with you, Judge Frost, what, during your time on the
bench, you have learned that you think will prepare you to
serve on the District Court? When I look at your background for
each one of you, what stands out, of course, as your
experience?
I think there are many ways and many different backgrounds
that people bring when they come to the District Court judge,
and there is no one given set of backgrounds that is preferable
over another, but the advantage each one of you has I think is
that you do have a record and that we can look at that record,
and we can judge you, and your peers can judge you, and we can
ask your peers how do they do on the bench, and so that is at
least the advantage that we have with each one of you.
So let me start with you, Judge Frost, and I would just ask
you what you have learned in your time on the bench that you
think will help you to be a better District Court judge?
Judge Frost. Thank you, Senator.
Senator DeWine. And maybe some of the mistakes you have
made and what you have learned.
Judge Frost. Thank you, Senator DeWine.
You do learn from your mistakes. There is no doubt about
that. I think one of the main lessons I have learned is just to
simply, on the 20 years of trial-level benches that I have been
serving, is to treat everyone fairly, to allow the attorneys to
do their job, to have firm control over the docket, which is I
think important and will be just as important on the District
Court, and to work hard.
I expect a lot out of the attorneys who appear before me
and, conversely, I think they expect a lot out of me, and so
hard work is also that.
And then, finally, patience, patience, patience.
Senator DeWine. Judge?
Judge Quarles. One of the blessings of working at the
Circuit Court for Baltimore City for 6 years is that it is a
very busy court. We have 24 judicial circuits in the State of
Maryland. Our circuit handles 24 percent/24 to 25 percent of
the criminal matters, and an equally large number of the civil
matters.
In any particular week, we have a thousand trials that are
scheduled in the felony courts. That is 10 judges who have a
thousand trials scheduled per week. Obviously, they cannot all
be heard.
In the time that I have served, I have served in the
various divisions of that court, and whether the matter has
been simple or complicated, whether it has been a relatively
minor misdemeanor appeal from the District Court or, as in the
case that I presided over 2 years ago, a quintuple murder, each
of the cases is important to the people involved in them, and I
think that's one of the things for judges to remember is that
there is no routine case to the litigants or to the victims or
to those who are there.
The only experience or impressions of the courts are formed
by these people who are there, and these things are very
important to them and their lives, and they're under a
particularly great amount of stress. As a judge, you have, of
course, the responsibility of deciding the immediate case
fairly.
You also have a sort of systemic responsibility to make
sure that each litigant, each witness, each observer of the
court leaves with a sense that, regardless of the outcome of
the case, it has been tried fairly, the matter has received
serious attention and that they have had an opportunity to be
heard.
I would hope to carryover those feelings and those
understandings into the Federal District Court.
Senator DeWine. Good.
Judge Erickson?
Judge Erickson. I would echo much that Judge Frost and
Judge Quarles have said here this morning. It seems to me that
one takes the bench with the attitude that every case is
important, that everyone has the opportunity to be heard, that
the lawyers will be afforded the opportunity to argue their
case fully, that you'll be prepared, that you will have done
the work necessary to take the bench prepared to make a
decision that's just, fair and equitable in its premises.
I also think that one of the things that a judge really
needs to keep in mind is a legal maxim that the law is no
respecter of persons. The law doesn't care whether you're the
most important or influential person who lives in the land or
you're a person that's homeless and living under a bridge. The
law only cares that you're given a fair and full opportunity to
be heard and that the decision rendered is consistent with the
law.
And as a judge, if you can do those two things, treat
everyone the way you want to be treated and make sure that
everyone has a fair opportunity to be heard, I think that, in
the final analysis, things will work out the way they are
supposed to.
Senator DeWine. Judge Erickson, could you comment about
settlement procedures and how you do that now and how you would
anticipate doing that on the Federal bench; pretrials, how do
you move a civil docket.
Judge Erickson. We work very hard at trying to get our
civil cases settled. We have settlement conferences in which
the judge who is not trying the case actually sits down and
tries to assist the parties in arriving at a resolution of the
case.
There is a more formalized procedure that exists in the
Federal District, in the District of North Dakota. In that
case, the Magistrate Judge spends a great deal of time working
on settling those cases. There is an active ADR program in our
district that has, in fact, been well-spoken of around the
country, and I would certainly embrace those principles.
I look forward to having someone more knowledgeable in
those areas who can teach me some of those techniques.
Senator DeWine. Judge Quarles?
Judge Quarles. In our settlement practice in the Circuit
Court for Baltimore City, we try to view every opportunity
where we got the parties together as an opportunity to resolve
the case. We have scheduling conferences fairly early on in
civil litigation. This is where the cases are assigned to
track, depending on the complexity of the case, the number of
witnesses, how much discovery is anticipated.
We also have attorney mediators who serve as volunteers who
come in and agree to take two or three settlement conferences
per month. We also then have a final pretrial conference, and
it is understood that at the pretrial conference, not only will
the attorneys be present, but they will have their clients or
their client's representatives, and there will be someone on
each side who has settlement authority.
Our civil cases in our court are no different from anywhere
else. We expect to resolve 85 to 90 percent of the civil cases
as, indeed, we do 85 to 90 percent of the criminal cases by
settlements, pleas, negotiations. So there has to be a lot of
opportunities along the scheduling track to get parties to talk
to each other, and you have to view each of those opportunities
as a possibility for settlement. So maybe, again, as a
discovery discussion, but the discovery discussion or discovery
conference can, of course, turn to, if guided, can turn to the
subject of settlement.
Senator DeWine. Judge Frost?
Judge Frost. I'm proud of our settlement programs in
Licking County and on the State bench, in general. We do settle
about approximately the same, 80 to 85 percent, or we expect to
settle those many cases in the civil arena.
Basically, we have three ways in which settlement is worked
in Licking County. We have private attorneys who volunteer
their time, and I am grateful, they do a great job, and we are
very happy with that program. The attorneys sometimes wish to
hire a private mediator, and that works out rather well, but
only in specialized cases where the funding is there for
private mediation.
And then, finally, sometimes the attorneys and the parties
ask the judge himself to get involved, and on rare occasions I
do that.
I have taken training myself in mediation, and I think that
I have some background in that, and we have been somewhat
successful.
Senator DeWine. Judge Frost, how would you describe
yourself, as far as allowing lawyers to try their own case?
Judge Frost. That's a good question.
Senator DeWine. You know, the common complaint.
Judge Frost. It is, and that's a good question, Senator.
I think you can ask any of the attorneys in my county, and
who practice before me from other counties--actually, I think
this Committee has asked most of them that.
[Laughter.]
Judge Frost. You have got to allow the attorneys to do
their job. They have a job in the courtroom, just like the
judge has a job in the courtroom, just like the court reporter
has a job. You have to allow them to do their job, too. The
system works best when everyone is allowed to perform their
functions and function well.
So, as far as I'm concerned, the courtroom is not my
courtroom, the case is not my case. It's up to the attorneys to
present their case, and I allow them to do so.
Senator DeWine. Judge Quarles, where do you come down on
that?
Judge Quarles. I agree with Judge Frost.
First of all, as you know from my background materials, I
was an active litigator, an active trial attorney.
Senator DeWine. You have seen it from that side.
Judge Quarles. And I've seen it from that side, and, for
some reason, the wisdom echoes in my mind, ``Judge, if you're
going to try my case, please don't lose it for me.''
[Laughter.]
Judge Quarles. No attorney wants the judge to be overly
involved in trying the case, and I'm not that far removed from
being an active trial lawyer as to change that.
We have a wonderful privilege as judges. We get to see the
entire range of the legal community. We see very good lawyers;
we see very bad lawyers. Each of them has something to teach
the judge, as a judge, and I enjoy the vantage point of getting
up there and an opportunity to watch the process. I enjoy
watching the process. I feel no need to get in and try the
cases any more.
Senator DeWine. Judge Erickson?
Judge Erickson. Mr. Chairman, I agree with everything that
Judge Quarles just said in the sense that when I used to try
cases I was not always overly pleased when the judge
interjected himself too forcefully into my case.
One of the things that a judge needs to remember is that,
in fact, you are the least-informed person in the courtroom.
You know less about the facts than anybody else there, other
than the jury, and if decide to interpose yourself into the
case, you can rest assured that you will probably make a mess
of it.
So I have learned, through experience, that it is best to
stay inside the role that I have, and that is to be the judge.
Senator DeWine. You are all in charge, though.
Judge Erickson. Yes.
Senator DeWine. I do not think any of you are shrinking
violets who will not be in charge.
Judge Erickson, why do you want to be on the Federal bench?
Judge Erickson. You know, I love being a trial judge. I get
up every morning, and I think this is the best job in America,
and I have an active caseload that's both criminal and civil. I
can't think of anything else that I'd rather do, except be a
Federal trial judge.
Why? I have a firm belief that the Federal Courts provide a
judge an opportunity to do this job in the best possible world,
a place where you have complex cases, with adequate staff and
adequate time to make the decisions the right way, to have
available to you the resources that are necessary to decide
those cases in an appropriate fashion, and I find it all very
exciting.
And the most important thing is I think the opportunity to
do this job right.
Senator DeWine. I hope you are not disappointed on the
time.
[Laughter.]
Senator DeWine. I just pray that you have the time.
Judge Quarles?
Judge Quarles. Judge Erickson puts it so well. There are
moments when I sort of figuratively step out of myself and look
and think what a wonderful privilege this is to be a judge. And
like him, I also anticipate having the joy of doing the job
with resources that our local court system just can't spare.
As I mentioned, we 1,000 criminal cases a week scheduled
for trial. My average day when I am sitting in a felony
assignment is somewhere between 15 and 20 cases scheduled for
trial. I am sitting in a misdemeanor assignment now. My average
day is 20 to 30 cases scheduled for trial.
I effectively have lost the morning. I spend the morning
trying to get pleas and trying to get other cases resolved. So
I am reduced essentially to trying a half day of cases each
week, the afternoon, and I am trying hard to save the
afternoon.
There is a luxury in Federal court with criminal matters
and civil matters in that the cases come one at a time. They
come prepared for trial and I have the understanding that I
will, in fact, be going to trial.
The facilities--and I don't mean to disparage the court
that I serve on. I love the court that I serve on, the people I
associate with, and I--as Judge Erickson says, you know, I
can't wait to get to work every morning to do the job. But it
will be nice having the greater resources of the Federal system
and a little more time to spend on each of the elements of the
case.
Senator DeWine. Judge Frost?
Judge Frost. I was a municipal court judge for 7 years and
I found that to be a great job, an exhilarating job. I then
left there and went on to the common pleas bench and I have
been there for 12 years now and I have found that to be a great
job.
I have been blessed to have a job that I enjoy and really
enjoyed the people that I work with. But there are times when
it is time to move on and this opportunity came about, and I
think I would agree with Judge Quarles is one of the main
things is to have the resources to study the law well and hard,
and to make the decisions in a proper manner.
Too many times now, I think we are all rushed to get to the
judgment and then get to the next case. And so I think this
will allow us more time for reflection, which I think is
important. I want the job because I just think it is going to
be a great opportunity for me to give something back.
Senator DeWine. Well, Judge Quarles, Judge Frost, Judge
Erickson, thank you very much. This Committee has been very
impressed by all three of you. I have been very impressed by
all three of you. I think you are the type of people that
should be on the Federal bench. You want to be on the Federal
bench. All three of you have a very good track record. We know
what you have done in the past. It is a very good predictor of
what you will do in the future.
I cannot speak for the chairman, but I think that the
Committee will move fairly quickly--by Senate standards, at
least, fairly quickly on your nominations and you will
certainly be hearing from the committee.
So we appreciate your time. We appreciate you coming to
Washington, and thank you very much.
Judge Quarles. Thank you, Senator.
Senator DeWine. There is a possibility that written
questions will be submitted to you in the next few days and we
would just urge you, if that does occur--it may not, but if
that does occur, that you get those questions back to us
immediately, get the answers back to us immediately because, of
course, that will speed up the nomination process.
So we thank you and you are free to go or free to stay,
whichever you would like to do, but you are finished for the
day. Thank you very much.
The Committee will recess subject to the call of the Chair
as far as our circuit court nominee. This could occur at any
time, so I would remind everyone that the nomination of our
circuit court judge--the Committee could come back into session
at any moment.
Thank you very much.
Judge Frost. Thank you, Senator, and thank you, staff.
[The biographical information of Judges Erickson, Quarles
and Frost follow.]
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[The Committee stood in recess from 11:05 a.m. to 11:58
a.m.]
Chairman Hatch. Well, if I can have everybody's attention,
Senator Kennedy is not coming, I have been informed. Senator
Schumer is not going to come, as well. Senator Feingold was the
last one we thought would come.
So with that, I think the three district court nominations
and you, Mr. Bybee, have had a pretty nice day. We will allow
enough time for our colleagues to write written questions to
you, and I am sure a number of these colleagues will do that.
I have to say that I had to be gone for a while and I
caught just the last end of Secretary of State Powell's remarks
before the UN and I am telling you they were devastating. I
have already chatted with a few people who heard the whole
speech and they said he really laid it out, as I expected him
to do.
Let me just say this, Mr. Bybee. I have seen a lot of
people around here and a lot of judges. Virtually everybody in
the Federal judicial system has come through here during my 27
years of service and we have had a lot of really wonderful,
outstanding people who are now serving on the Federal bench.
I don't know of anybody who has any more qualifications or
any greater ability in the law than you have, and that is
counting some pretty exceptional people. And I think that is
one reason why this particular hearing has not been as much an
ordeal as some of the ones others have had. I think there is a
tremendous amount of respect for you, as there should be.
We will try to put your nomination on next Thursday's,
after tomorrow, markup. It has almost become a general rule
that the Democrats or somebody on the Committee will put over
the nominations for at least one week. And generally, if the
questions haven't been answered, that will probably occur.
There is a belief by some that there is a real effort to
slow down this process. Now, I would be the last who would
think that that has real merit. Come to think of it, there has
been some of that, but I am hopeful that in your case and in
the case of many, many others that we can get you through, get
you on the bench and get you doing your life's work, which is
really what that will be, in the best interests of our country.
And I have absolutely no doubt that your efforts will be in the
best interests of our country.
The other three district court nominees, we are very proud
of them as well.
So with that, we will close the hearing and thank you all
for being here.
[Whereupon, at 12:01 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT JUDGE FOR
THE TENTH CIRCUIT; J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TENNESSEE; WILLIAM H. STEELE, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA; THOMAS A. VARLAN,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE;
TIMOTHY C. STANCEU, NOMINEE TO BE JUDGE OF THE UNITED STATES COURT OF
INTERNATIONAL TRADE; AND MARIAN BLANK HORN, NOMINEE TO BE JUDGE OF THE
UNITED STATES COURT OF FEDERAL CLAIMS
----------
WEDNESDAY, FEBRUARY 12, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:43 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Jeff
Sessions, presiding.
Present: Senators Sessions, Hatch, Specter, Craig,
Chambliss, Leahy, Kennedy, Feingold, and Schumer.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator Sessions. The Committee will come to order. Senator
Hatch is on the floor. I think there continues to be debate on
one of the judicial nominees, Miguel Estrada, an
extraordinarily capable lawyer, and that debate is going on,
and I think that is where he is, and I have been asked to
commence the hearing.
I am pleased to welcome to the Committee this morning six
fine nominees to the Federal bench. We will be considering the
nominations of individuals to the U.S. Court of Appeals for the
Tenth Circuit, U.S. District Courts in Tennessee and Alabama,
the Court of Federal Claims, and the Court of International
Trade. So we don't lack for a variety today.
Our first panel will feature an excellent candidate for the
appellate court, Timothy Tymkovich, who has been nominated to
fill a seat on the Tenth Circuit Court of Appeals. Mr.
Tymkovich's hearing has been a long time in coming. He was
first nominated on May 25, 2001, almost 2 years ago. So I am
pleased to see him this morning.
We will then turn to our second panel: Judge Daniel Breen
for the Western District of Tennessee; Thomas Varlan for the
Eastern District of Tennessee; Judge William Steele for the
Southern District of Alabama; Judge Marian Blank Horn for the
U.S. Court of Federal Claims; and Timothy C. Stanceu for the
Court of International Trade.
And, of course, I would like to express appreciation for
the members who have taken time from their busy schedules to
come and present their views on the qualifications of our
witnesses and nominees today. We will hear from them in a
moment. Let me now say a few words about each of our nominees.
Timothy Tymkovich, a graduate of the University of Colorado
School of Law, has worked as a partner in private practice
since 1996 representing clients in matters involving State
licensing and regulatory issues. He has also acquired expertise
in State and Federal election issues and has represented a
variety of political parties and candidates. Mr. Tymkovich has
been a great public servant for the State of Colorado, serving
from 1991 to 1996 as the State Solicitor General where he acted
as chief appellate lawyer for the citizens of Colorado. In that
capacity, he ably represented the State in State and Federal
courts, including the Colorado Supreme Court, the Tenth Circuit
Court of Appeals, and the United States Supreme Court.
When he left the Office of Solicitor General, the Denver
Post editorialized, ``In an age in which lawyers and government
workers are often held in low esteem, Tymkovich, a member of
both groups, has stood in stark contrast to both stereotypes.''
The Post added, ``Tymkovich has set a high standard of
service.'' And that is high praise.
Mr. Tymkovich's nomination has drawn powerful support from
all corners. He enjoys the unqualified endorsements of
Colorado's Senators Campbell and Allard, both of whom I am glad
to see here today; a number of former Colorado Supreme Court
Justices, the Colorado Governor, the current Attorney General,
and Colorado's major newspapers--the Denver Post and the Rocky
Mountain News. I firmly believe Mr. Tymkovich will make a great
member of the Tenth Circuit.
As I said, we will also consider the nominations of five
other individuals to the bench. Our nominee for the Western
District of Tennessee, Judge J. Daniel Breen has served with
distinction on both sides of the docket. An experienced civil
litigator, he served as a United States Magistrate Judge since
1991.
Thomas Varlan, our nominee for the Eastern District of
Tennessee, currently practices law in the areas of government
relations, labor law, and employment law. For 10 years, he was
the law director for the city of Knoxville.
Judge William Steele, nominated for the Southern District
of Alabama, has served as an Assistant United States Attorney--
helping a poor U.S. Attorney at that time who needed all the
help he could get--and as a private practitioner, and since
1990 Judge Steele has served as a magistrate judge for the
United States District Court for the Southern District of
Alabama. Magistrate judges are chosen on a very competitive
basis by the courts, and they use them a lot.
Judge Marian Horn, nominated to the Court of Federal
Claims, has served in the Departments of Energy and Interior
and is currently an adjunct professor of law at George
Washington University School of Law. Since 1986, she served as
a judge for the United States Court of Federal Claims.
Last, but not least, Timothy Stanceu, our nominee to the
United States Court of International Trade, has worked for the
Environmental Protection Agency, as a Deputy Director of the
Treasury Department's Office for Trade and Tariff Affairs. In
1990, he joined the law firm of Hogan and Hartson where he
concentrates in the field of international trade and customs.
I look forward to hearing from all our nominees today and
to working with my colleagues to bring their nominations to a
vote very soon. Again, I welcome you all.
As is our tradition or policy in the committee, the Circuit
Court nominees, the Senators and Members of Congress for them
would be offered the opportunity to speak first, and then
Senators in order of their seniority would be allowed to speak
on the District Court nominees.
Senator Campbell, would you like to lead off?
PRESENTATION OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT BY HON. BEN NIGHTHORSE CAMPBELL, A
U.S. SENATOR FROM THE STATE OF COLORADO
Senator Campbell. Thank you, Mr. Chairman. I am going to
make my statement somewhat brief, partly because I have to
chair a hearing myself at 10 o'clock and partly because you
have already mentioned some of the outstanding qualities of Tim
Tymkovich, the gentleman I am going to introduce, to serve on
the Tenth Circuit Court of Appeals.
It is a pleasure to be here with my friend and colleague
and relative, Senator Allard, to introduce a very good man who
is well qualified as a jurist, and I hope you will agree. It is
my understanding that you met Mr. Tymkovich in your past life
as Attorney General of your State and had worked with him on
several things.
I am also pleased that his wife, Suzanne Lyon, and their
two sons, Michael and Jay, are here with us today to witness
this important nomination of their Dad.
Mr. Chairman, Tim Tymkovich is well qualified to serve on
the Tenth Circuit. He is a native of Colorado, an excellent
jurist, and an outstanding person who will be a terrific
addition to the Tenth Circuit Court. Since he earned his
doctor's degree, his juris doctor, as you mentioned, as the
University of Colorado in 1982, he has had an outstanding
career which I consider to be well balanced as a combination of
both public service and private practice, too. Tim's public
service experiences included serving as a clerk for the former
Colorado Court Chief Justice William Erickson from 1982 to
1983. From 1991 to 1996, as I think you mentioned, he served as
Colorado's Solicitor General. And in between those years of
public service, he earned an excellent reputation in private
practice with several of our leading firms.
For the past 2 years, he had served as counsel to Colorado
Governor Owens' Columbine Review Commission, which reviewed the
public agency and law enforcement response to the tragic
Columbine High School shootings of 1999. At the same time, he
co-chaired the Governor's Task Force on Civil Justice Reform,
which has led to improvements of Colorado's civil justice and
practice. He currently serves as a partner in the Denver-based
law firm of Hale, Hackstaff and Tymkovich.
You mentioned two of Colorado's leading newspapers have
positively endorsed him. You mentioned some of the things they
did say. They also said that he has gained a local reputation
as a thoughtful, insightful attorney who knows the law and
works hard to uphold it. That was in the Denver Post. I know
that they have given Tim Tymkovich a very serious look, and I
agree with them when they say that he is someone who combines
intellectual heft and a steady temperament.
So I just wanted to add my voice to that, Mr. Chairman, and
tell you that I think it has been long overdue. You mentioned
that it has been almost 2 years since he was first nominated,
and I would hope that he would get the speedy approval of this
Committee and the U.S. Senate.
Thank you.
Senator Sessions. Thank you, Senator Campbell.
I am going to ask Senator Larry Craig to preside for a few
moments. I have to leave for the necessity of a quorum just
briefly in the HELP Committee, and I would recognize Senator
Wayne Allard, my colleague, for your comments.
PRESENTATION OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT BY HON. WAYNE ALLARD, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Allard. Thank you, Mr. Chairman. It is a great
honor to be able to introduce, along with my colleague from
Colorado, Senator Ben Nighthorse Campbell, Tim Tymkovich to the
Judiciary Committee. He is the President's nominee to the Tenth
Circuit Court of the United States Courts of Appeal. And Mr.
Tymkovich has tremendous respect in the State of Colorado. You
went over many of those accolades in your introduction, Mr.
Chairman. My senior colleague from Colorado went over many of
those. I will try not to repeat what has already been said. But
the fact is he has been able to work in a bipartisan way, and
he is well recognized in Colorado for his ability in his legal
profession and is somebody that is respected, no matter who you
are, because he is such a dedicated professional.
This hearing has been a long time in the making, several
letters and several floor statements and indeed several years
after the date of the nomination. So I thank you again, Mr.
Chairman, and the Committee for providing this hearing.
I also want to thank Senator Campbell, the senior Senator
from Colorado, and congratulate him for his fine remarks.
First, I would like to welcome Mr. Tymkovich's wife to the
hearing, Suzanne Lyon, as well as their two sons, Michael and
Jay, and their family and the guests. I am sure that he will
introduce them. I don't know what exactly is your format here
in the committee, but frequently we have them introduce their
family. I want to make sure that is covered.
The nomination process is indeed a grueling process, and I
hope it is no more difficult, though, than being elected to the
Senate.
I am sure it has been your family's continued support and
encouragement that has provided the strength and energy Tim has
needed in order to stand steadfast in pursuit of this most
worthy endeavor. In a moment, I will share with you some truly
stirring comments Mr. Tymkovich made to me during a recent
conversation, but first, I had some comments I was going to
direct to Senator Grassley on the committee. Unfortunately, he
is not here right now, and many of us are tied up with a lot of
other things that are going on. But just it is kind of
interesting, and the fact is that Tim Tymkovich reminded him
that Suzanne has actually spent time--that is Tim Tymkovich's
wife--on Grassley's staff and is a native of Des Moines, Iowa.
In fact, I am told Suzanne's mother, Janet Lyon, actually
managed one of Senator Grassley's first campaigns for public
office. I wish he had been here in the committee. We could have
made a nice tie-in there with Senator Grassley.
Mr. Chairman, when considering the nomination, please know
that Tim Tymkovich has my unequivocal support. The confirmation
of his nomination by the Senate will prove to be a great
service to the people of the United States.
As you know, his nomination has enjoyed broad and
bipartisan support, support from judges, colleagues, both
Democrat and Republican Governors. He is well respected for his
approach to the law and to problem solving. He manages cases
and clients with civility and understanding, setting a high
example for the legal community. Tim Tymkovich understands the
West, its community and its past. In fact, he informed me that
he knows where all the outlaws are in the Tenth Circuit and
where they hang out, valuable insight, I think, for a Federal
judge.
Now, how does he know might be a question this Committee
would ask. Well, he spent many years traveling with his wife as
a Western historian and novelist. Together they have traveled
extensively, uncovering the old stomping grounds of legendary
Western figures, like Butch Cassidy and others. Undoubtedly,
this deep knowledge of the West will aid in his duties.
Tim Tymkovich's commitment to public service is
unparalleled. Through our conversations, I have developed a
strong understanding of Tim's deep personal commitment to
public service and his long respect for the rule of law and
protecting people and the interests of the State.
Mr. Tymkovich's legal credentials reveal him a man who
values independence and fairness in the judicial process and
understands the implications of a lifetime appointment to our
Nation's courts.
Mr. Chairman, Tim Tymkovich is a man who truly believes
that there is no higher calling than to serve the American
people through the impartial administration of the law. He will
serve our Nation with the utmost of respect to our country and
our Constitution, and for this reason, I urge you to forward
his nomination to the Senate with a favorable recommendation.
Thank you, Mr. Chairman, and our thanks to the committee.
Senator Craig. [Presiding.] Before I turn to Senator
Shelby, I thank you for those comments, Senator Allard. I
wanted to put in the record a statement by Senator Grassley,
who couldn't be here this morning, who did not want the
presence of Mr. Tymkovich and his wife, Sue Lyon, to be unnoted
in relation to the native Iowan and former intern in the
Senator's office that Mrs. Tymkovich was. So I will put that
statement in the record on behalf of Senator Grassley.
Senator Craig. With that, thank you very much.
Senator Allard. Thank you, Mr. Chairman.
Senator Craig. I will turn to Senator Richard Shelby of
Alabama to visit with us about William H. Steele. Thank you
very much.
PRESENTATION OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOURTHERN DISTRICT OF ALABAMA BY HON. RICHARD C.
SHELBY, A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Shelby. Thank you, Senator Craig, Senator
Chambliss. I regret that my colleague and friend, Jeff
Sessions, had to leave for a minute, but I can tell you he is
in big support of William H. Steele, who worked with him, as
Jeff just said, in the U.S. Attorney's Office.
Mr. Chairman, it is a privilege for me to be here on behalf
of William H. Steele's nomination for the United States
District Court for the Southern District of Alabama. Judge
Steele has a long record of public service and accomplishment,
a distinguished record. Prior to entering the legal profession,
he served in the United States Marine Corps as an aircraft
commander and operations officer. He later served in the
Alabama National Guard for 18 years as the commanding officer
of an assault helicopter company. Judge Steele is also a
founding member of the Child Advocacy Center and currently
serves on the board. As a result of his work in the area of
child abuse intervention, Judge Steele was awarded the City of
Mobile's United Citizen Service Award, a great honor.
After graduating law school from the University of Alabama,
Judge Steele served as an Assistant District Attorney for
Mobile County, where he subsequently attained the position of
Chief Assistant District Attorney. He then went on to serve as
an Assistant United States Attorney, as I said, under Jeff
Sessions with the Department of Justice. He later worked in the
private law firm of Thetford and Steele, during which time he
also served as a municipal judge there. Currently, he is a
magistrate, a distinguished magistrate, at the United States
District Court for the Southern District of Alabama. And as a
magistrate, he is trying cases all the time.
He is well respected at the bar, both sides of the
political aisle, Democrats and Republicans. His legal
experience makes him an ideal candidate for the position of
Federal District Court judge. As a Federal magistrate, he has
already handled many full civil trials involving issues such as
trade secrets, contract disputes, employment discrimination,
and torts. You name it.
Mr. Chairman, I support Judge Steele's nomination without
reservation. His extensive judicial experience as a prosecutor
and a Federal magistrate make him well prepared to assume the
responsibilities of a United States District Court judge. I am
confident that he will serve with honor and distinction in the
new role, and I urge the Committee to send his nomination to
the full Senate as soon as possible.
Mr. Chairman, I ask that my full remarks be made part of
the record.
Senator Sessions. [Presiding.] Thank you, Senator Shelby,
and I appreciate your insight into that. I know as a former
lawyer, like I was, that you take these matters very seriously.
Senator Shelby. It is a serious appointment.
Senator Sessions. It is.
Senator Shelby. And a very highly qualified appointee for
this job.
Senator Sessions. Thank you, and I know you talked to a lot
of mainstream practicing lawyers before you--
Senator Shelby. And I mentioned, I don't know if you heard,
but I have had a lot of calls from Democrats and Republicans in
the Mobile area that practice in the bench in the last few days
and they said please support Bill Steele because he is fair, he
is prepared, he will make an outstanding judge. And I think you
can't have a better recommendation.
Senator Sessions. Thank you. I agree with that. That is the
exact reputation that I continue to hear from the lawyers in
Mobile where I practiced my career. They are very, very high on
him.
Thank you. You can stay with us, or you are free to--
Senator Shelby. I am going to leave it up to you, and I
know he is going to sail through. You are going to help him,
and I am going to help you.
[Laughter.]
Senator Sessions. All right. Thank you.
[The prepared statement of Senator Shelby appears as a
submission for the record.]
Senator Sessions. Senator Alexander?
PRESENTATION OF J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF TENNESSEE AND THOMAS A. VARLAN,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
TENNESSEE BY HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE
STATE OF TENNESSEE
Senator Alexander. Mr. Chairman, it is my privilege today
to recommend on behalf of Senator Frist and myself two
outstanding Tennesseeans. As the other Senator suggested, I
have a lot of respect for this proceeding for two reasons. One,
while I was Governor, I appointed about 50 judges, and I found
that they outlasted me in terms of influence, and so I do this
process very carefully. And, second, I had the privilege, as
you and your families have today, of being confirmed by the
United States Senate and seeing what a remarkable process it
is. So I welcome you here and respect you for being here.
Senator Frist, our Majority Leader, joins me in that
welcome. He is at least as enthusiastic as I am about it. He
had a lot to do with your being here. He has a lot of duties as
the Majority Leader today, so he sent his warmest wishes and a
message which I am going to leave with the committee, which
will reflect his enthusiasm for your presentation.
Just very briefly, Dan Breen and Tom Varlan have been
nominated to be United States District judges for the two ends
of our State, the Western District and the Eastern District of
Tennessee, which are very different parts of the world. But
while they represent different parts of our State, they come
with many of the same kinds of credentials. They both have
exceptional academic records. They both have lots of practical
experience in the practice of law and in judging. They both are
extremely active in their respective communities. And they both
have wide respect among members of the bar and in those
communities.
Judge Breen is the United States Magistrate Judge for the
Western District of Tennessee now. He graduated first in his
class in college. He has the highest rating from the American
Bar Association. He has been an author and he is well known for
his thoughtful judicial temperament, and it is a great
privilege to be here to recommend him.
Tom Varlan in the same way graduated with the highest
honors at the University of Tennessee and Vanderbilt
University. He has been in the private practice of law. He has
been law director of the City of Knoxville. He comes to the
bench, as does Dan, with real practical experience and respect
for the law.
I used to say when I appointed judges that among the things
that I hope they would remember is that once they ascend the
bench for a long term, in this case a life term, that they
would remember to be courteous to all those who came before
them. And I think that is important as any other qualification.
But on behalf of the people of our State and Senator Frist and
myself, it is a great honor to recommend two such exceptional
men as Tom Varlan and Dan Breen, and I am delighted they are
here with their families.
Senator Sessions. Thank you, Senator.
Senator Specter, I would recognize you for your comments at
this time and would note that Senator Specter, of course, is a
senior member of this committee, himself an outstanding
practicing attorney and prosecutor, and just a very
knowledgeable person in the law. Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. Just a
comment or two.
I welcome all of the nominees and their families and others
who are here today. Do not be surprised at the number of
Senators who are here because this is a very, very busy day. As
you doubtless know, we have the nomination of Miguel Estrada on
the floor. We are finishing up the omnibus appropriations bill.
And there are many, many competing hearings. But we will follow
what is going on very, very closely on the nominating process.
Senator Alexander articulated a chord which is worth just a
minute. When I was here in this room back in 1982 on the
nomination of two Pennsylvania judges, Judge Caldwell and Judge
Mansman, Senator Thurmond, who was the Chairman of the
committee, said, in his inimitable Southern drawl, ``If
confirmed, do you promise to be courteous?'' And I translated
that to be, ``If confirmed, do you promise to be courteous?''
[Laughter.]
Senator Specter. And I said, What an unusual question. What
does Senator Thurmond expect the nominees to say but yes? And
then he added to it, ``Because the more power a person has, the
more courteous the person should be.''
Senator Sessions understands that.
Senator Sessions. That is pretty close.
[Laughter.]
Senator Specter. He is from the South where they understand
this dialect, frequently articulate it themselves. The more
power a person has, the more courteous the person should be.
Whenever Senator Thurmond is not here--and he has, of course,
left the Senate, an extraordinary record--I take a moment to
say that, because when you become a judge and you have
litigants and lawyers who appear before you, it is not unusual
to be a little distressed with some of the things that go on.
And that is a great admonition. And on the selections which
Senator Santorum and I make on our judicial nominating panel
for Pennsylvania, we are very, very concerned about that item.
Senator Allen just walked in, and I always make it a point
when Senator Allen walks in just to finish the sentence.
Senator Allen. Go ahead.
Senator Specter. I just did. Thank you, Mr. Chairman.
Senator Sessions. Thank you, Senator Specter. Wise
comments.
Senator Chambliss. Mr. Chairman?
Senator Sessions. Senator Chambliss?
Senator Chambliss. Before you leave Judge Breen and Mr.
Varlan, as a graduate of the University of Tennessee myself, I
notice they are both graduates of that fine institution, so I
am very confident that their educational background will make
them excellent judges. So I am pleased to look forward to their
confirmation.
Senator Sessions. I have no doubt of it.
Senator Allen?
PRESENTATION OF TIMOTHY C. STANCEU, NOMINEE TO BE JUDGE OF THE
UNITED STATES COURT OF INTERNATIONAL TRADE BY HON. GEORGE F.
ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman.
Senator Sessions. You didn't get caught in traffic also,
did you?
Senator Allen. No. This is my fourth meeting of the
morning.
Senator Sessions. I am hearing that. I had a note here that
several of our members are having trouble in some traffic
snarl. We probably need a new bridge to Virginia, I am sure.
[Laughter.]
Senator Allen. Or at least widen the 14th Street Bridge. It
is important for national security and homeland defense.
Senator Sessions. I have no doubt.
Senator Allen. This is about the fourth or fifth event of
the morning for me. I am delayed because I am on the Commerce
Committee, and we are having a hearing with Mr. O'Keefe on the
NASA disaster of the Columbia. So thank you for fitting me in
here, Mr. Chairman and members of the committee.
I am here for the privilege of introducing an outstanding
gentleman from Arlington, Virginia, for your consideration as
the President's nominee to be a judge of the United States
Court of International Trade. That gentleman is Timothy, or
Tim, Stanceu. He is an extraordinarily well-qualified
individual for the appointment to this important Court of
International Trade. He is recognized as an expert in many of
the issues that are under the jurisdiction of the CIT through
his extensive experience both in Government and in public
service as well as in the private sector.
Mr. Stanceu served in the public sector from 1974 to 1989
in the U.S. Department of Treasury as the Deputy Director of
Trade and Tariff Affairs and as the Special Assistant to the
Assistant Secretary for Enforcement and Operations. His
responsibilities in these positions included regulatory and
policy issues involving the U.S. Customs Service.
For the past 13 years, Mr. Stanceu has been with the
Washington law firm of Hogan and Hartson. Most of his practice
has involved customs laws, antidumping, and countervailing duty
proceedings.
Mr. Stanceu has also represented clients before the Customs
Service, the Office of the U.S. Trade Representative, the
Commerce Department, the International Trade Commission, the
foreign trade zones issues as well, and the Court of
International Trade, the very court to which he is nominated to
serve.
Mr. Stanceu is also a frequent lecturer and instructor on
customs and other international trade law topics at the
University of Maryland Law School.
If you all look at his very distinguished career in public
and private service in those positions, I cannot imagine the
President finding a more qualified person on the face of the
earth to be serving in this important Court for International
Trade. And I understand Mr. Stanceu's family is also with him
today: his wife, Mary, who is an Assistant U.S. Attorney; Mitzi
Mewhinney, his mother; and Dick Mewhinney, his stepfather; and
Patrician Hallissy, his sister.
Unfortunately, Mr. Chairman and members of the committee,
this new job will require Mr. Stanceu to move from Virginia to
New York City, where the court is located, meaning he will no
longer be a resident, I suspect, of our wonderful Commonwealth
of Virginia. But I am sure the Senator from New York will make
him feel very welcome in New York City.
Senator Schumer. I will welcome him to New York State.
Senator Allen. Okay, that is a nice way of saying it. If
that will help move him through expeditiously, Mr. Chairman,
again, it is my pleasure to present to this Committee an
outstanding, truly exceptional individual with the background,
the knowledge, and capabilities to serve us on the Court of
International Trade. And I think that you will recognize that
as you interview him, look through his record, and I hope you
will be able to, as promptly as practicable, move his
nomination for confirmation.
Thank you, Mr. Chairman and members of the committee.
Senator Sessions. Thank you, Senator Allen. I know you do
have to get back to the hearing on science.
Senator Allen. Thank you.
Senators Chambliss or Schumer, do you have any opening
comments you would like to make?
Senator Schumer. No.
Senator Chambliss. No.
PRESENTATION OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF ALABAMA BY HON. JEFF SESSIONS, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. I would make my remarks today in
reference to Judge William Steele.
Judge Steele served in the Marine Corps, was a helicopter
pilot, completed his tour of duty, came to the University of
Alabama School of Law and got his degree there, did well. He
came to Mobile and worked for the District Attorney, Chris
Galanos, who was a Democratic administration, rapidly rose to
his chief assistant. During that time I was United States
Attorney, and my staff and Chris Galanos' staff worked together
on quite a number of cases, some big cases, one of them being
the terrible murder of Michael Donnell and hanging of his body
in Mobile by a Klan group, and we worked together through those
intense days. And Bill Steele, according to all the people in
my office and my personal observation, was just a rock of
integrity and judgment in those times. So when we had the
opportunity, I was able to hire him as an Assistant United
States Attorney. He worked in my office for a couple of years
and then went into private practice.
A vacancy became available for the position of United
States Magistrate Judge, which in the Southern District of
Alabama is a very important position. It is important in most
districts, but I don't think there is a district in America
that demands more of the magistrate judges, calls on them to do
more complex work than in the Southern District of Alabama. A
very competitive position, probably 40 or 50 or 60 people
applied. The judges in that district, knowing they are going to
rely on the magistrates for important matters, take that
selection process very seriously, and he was selected on merit
for that position, and since then has served with extraordinary
skill and capability, winning support throughout the area for
his judgment and integrity.
I just thought I would mention a few things that you hear
from the local community about his abilities. Virtually all
the--the present president of the Mobile Bar Association and
the other members, former presidents of the bar have endorsed
him. The Vernon Z. Crawford Bay Area African-American Bar
Association in Mobile gave Bill Steele their unanimous
endorsement, saying, ``The Association strongly recommends
Magistrate Bill Steele for the position because he recognizes
and is sensitive to the issue facing African-American lawyers
and the African-American community. We give Magistrate Steele
our highest recommendation.''
Major General Gary Cooper, retired from the U.S. Marine
Corps, the first African-American Marine general, President
Clinton's Ambassador to Jamaica, grew up in Mobile, said, ``As
an African-American citizen of Mobile and as a retired Marine,
I appreciate what William Steele has done for his community as
a county and Federal prosecutor, as a Federal magistrate, and
what he has done for his country as a Marine helicopter pilot.
His record indicates he will make a fine judge.''
Carlos Williams, Chairman of the Southern District of
Alabama Federal Defender Organization, an African American,
noted that, ``During the years I have practice in Judge
Steele's court, I have come to know a jurist of integrity,
professionalism, and compassion and have grown to respect his
judgment. I note that every lawyer in my office--Christin
Gartman Rogers, Kay Lynn, Hillman Campbell, Christopher
Knight--in unsolicited comments have expressed their support
for his nomination. It is, therefore, without hesitation that I
send this letter of support of Magistrate William Steele's
nomination to the United States Court of Appeals.''
That group is the one that defends the criminal cases in
Federal court. They have an opportunity to know whether a
magistrate judge is fair or not. And I think that was a strong
comment.
But I will just mention this, one more before I--a couple
more comments I think I will make. I just have so many.
Merceria Ludgood, assistant county attorney now for Mobile
County, and former program director for the Legal Services
Corporation in Washington, D.C., and a former executive
director of the Legal Services Corporation for the entire State
of Alabama, an African American, made this comment, and it
captures him so well: ``Magistrate Judge Steele is one of the
finest men I have ever known. Never once have I believed his
actions to be motivated by politics or ambition. He simply
wants to do the right thing for the right reasons.'' And that
is the Bill Steele that everybody knows in the Southern
District of Alabama who practiced before him.
I would note that he has support from a host of other
people, including the bar. Greg Breedlove, on behalf of the law
firm of Cunningham, Bounds, Yance, Crowder and Brown, a
prominent Democratic plaintiff firm in Mobile, one of the best
plaintiff firms in the country, if you want to know the truth,
send their unanimous support for Judge Steele, and I have had
several members of the firm tell me that they are just
exceedingly impressed with his integrity and ability and
strongly support his nomination.
So I say that to say that his support goes across racial
and political bounds. It represents the considered judgment, I
believe, of the bar and practitioners in the Southern District
of Alabama.
All right. Opening statements are done, and I will offer a
formal statement for the record.
[The prepared statement of Senator Sessions appears as a
submission for the record.]
Senator Sessions. At this time I would call on Mr.
Tymkovich, the Court of Appeals nominee, as our first witness.
Mr. Tymkovich, would you stand and be sworn, please? Do you
swear that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Tymkovich. I do.
Senator Sessions. Thank you. Please be seated.
Congressman Cannon, I am glad you finally go through that
traffic jam. I appreciate your coming, and I won't ask Mr.
Tymkovich to move. Maybe you can sit right there.
Mr. Cannon. I hope this won't affect anything that ever
happens before him in his court.
Senator Sessions. That is the center seat you have. Thank
you for coming. I know you have some comments about one of our
nominees.
PRESENTATION OF MARIAN BLANK HORN, NOMINEE TO BE JUDGE OF THE
UNITED STATES COURT OF FEDERAL CLAIMS BY HON. CHRIS CANNON, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Representative Cannon. Thank you, Mr. Sessions, Mr.
Schumer. It is a pleasure to be here today to introduce my dear
friend, Marian Horn, whom I think you are going to be
considering today for an appointment back to the bench for the
Court of Claims.
It is a great honor for me. I have known Marian since 1983
when I took her job. She was elevated to become an Associate
Solicitor at the Department of the Interior for General Law,
and I became the Deputy Associate Solicitor for Surface Coal
Mining. I shortly thereafter became an Associate Solicitor, so
we were peers, although never equals in our experience with the
law or coal mining.
In that capacity, I got to know Marian and her family well,
her three daughters, her husband. Our families became close. I
was trying to think on the way over here. We worked on
literally dozens of relatively small issues and several major
issues together. During that period of time, I found that her
judgment was exceptional, thoughtful, considered, and I can't
recall a time that she was wrong. And we also dealt with many,
many minor issues, and she was right on those as well.
In thinking about what I could say about Marian, it
occurred to me that over the course of her judgeship I have run
into four or five or six people who have clerked for her in the
past. And while they all said very nice things about her and
had different experiences, the one thing that came through that
everyone talked about was the fact that it was a great learning
experience and they learned a lot from her. She has taught in a
couple of different capacities in law school. I think she
understands the law well. I think she has done a great job as a
judge. And I would recommend her. It is my honor to introduce
her, and I apologize, Mr. Chambliss. I didn't look over in this
direction. But you are on the wrong side, aren't you?
[Laughter.]
Representative Cannon. Thank you for your time and
attention.
Senator Sessions. Thank you, Congressman. We appreciate
those comments.
Our ranking member, Senator Leahy, do you have any comments
before we call our first witness?
Senator Leahy. No. I was tied up over on the floor. You
folks have a matter over there, and so I was doing that. But I
am delighted to see the Congressman and others who are here.
I do have one short statement concerning six nominees for
appointments to the Federal bench, and I am glad that we are
going back to Senator Hatch's precedent he established when he
was Chairman before of having one Court of Appeals nominee plus
whatever other nominees are on. I think that is helpful. It
allows us to have better attention to it. There is a lot of
staff work and Senators' work to go into each one of these
hearings preceding them and going through the backgrounds. When
you toss out, for example, three Courts of Appeals nominees in
1 day, it is impossible to do that. And it can be done quickly
if you do it right. For example, during the less than a year
and a half that Democrats chaired this committee, we greatly
accelerated the pace of nominees from before. During the
Clinton era with Republicans in charge, nominees were slowed
up, I thought unnecessarily. We confirmed 100 of President
Bush's nominees in 17 months, but we did it step by step so
that both sides of the aisle would know what we are doing so we
don't end up like a conveyor belt, which really makes the
American public wonder just what we are doing.
We are moving with Tim Tymkovich for a seat on the Tenth
Circuit. He is from Colorado. And I am glad to see that he is
having a hearing. I think he should have.
I would note that when President Clinton nominated two
different people to fill that seat, Jim Lyons and Christine
Arguello, they were not allowed to have a hearing. And I
thought that was unfortunate. Mr. Lyons was among the many
Clinton nominees who had the highest rating, something that,
Mr. Chairman, you and members of your party have been talking
about, people with the highest ratings, on the floor. And I
think one of you said they should at the very least all get a
hearing. Well, Mr. Lyons had that ``well qualified,'' the
highest rating by the American Bar Association. He was never
granted a hearing. Ms. Arguello, who is a talented Hispanic
attorney whose nomination had significant support from her
community, including the two Republican Senators from her
State, she was denied a hearing also, and the seat remained
open. They had these very highly qualified ratings, but they
were not allowed to have a hearing by the Republican leadership
of the committee.
Mr. Tymkovich has a good record in private practice and
Government, seems impressive, and I am interested to know more
about him. I would note that the American Bar Association gave
this nominee a partial ``not qualified'' rating. I am so glad
he is having this hearing, but I would note that there is a
little bit of a double standard here when you have two
Democratic nominees with the highest ratings and they were not
even allowed to have a hearing.
I have more things to say. I will put them in the record so
as not to hold this up and will look forward to hearing the
answers from the nominee.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Sessions. Thank you, Senator Leahy. I know that
some nominees did not clear last year. Forty-one were left
pending when President Clinton left office. Fifty-four had not
cleared and were left pending when President Bush left office.
And only one nominee was voted down on the floor of the Senate,
and none were blocked in Committee during the time the
Republicans chaired this. But--
Senator Leahy. Mr. Chairman, that is not--
Senator Sessions. --I know you feel that there are
different ones that had different problems that you didn't feel
were fair, but I think overall the Congress moved pretty well
with the Clinton nominees.
Senator Leahy. Well, Mr. Chairman, that is not totally
accurate. For one thing, you say they were not voted down. They
were never voted. They were never brought up for a hearing.
These two with the highest qualification ratings from Colorado,
one Hispanic woman supported by two Republican Senators, was
still never allowed a hearing. That is my point. It is easy to
talk about who gets voted up, who gets voted down, if they are
allowed a vote. They were not allowed a vote in the committee.
They weren't even given hearings. That is the concern. Were
there several on the end of the first President Bush's term?
Yes, there were. You may recall the reason. I don't know if you
were here at the time, but they were nominated after the
application of the Thurmond rule, named after Senator Strom
Thurmond, whom you will recall served here for so many years.
And under that rule, nominees, except in extraordinary
circumstances, if nominated in the last 6 months of a
President's term, were not given hearings. This was a
Republican-instituted rule that was followed in that case,
although I must say the Democratic Chairman of the Committee at
that time asked and got consent for a number of President
Bush's nominees that would have fallen under the rule. He still
put them through and arranged for them to go through.
There was also the assumption that President Bush was--and
I think the reason the Republicans were glad to use the
Thurmond rule was they assumed that President Bush was going to
be re-elected. He wasn't.
But I also know in that case one of those nominees, a
Republican from my State, the Second Circuit, a conservative
Republican, when President Clinton became President, I went
down and urged President Clinton to appoint this conservative
Republican to the Second Circuit, and he did.
But I just pass that for history.
Senator Sessions. Well, I will admit there were 41 that
were not confirmed. With regard to Mr. Lyons, he was nominated,
and then his nomination was withdrawn because there was no home
State support. And I know you expect your Democratic Senators
to be consulted. And Christine Arguello was nominated in late
July and just did not clear before the election.
But, anyway, I would say this--and I hope we can get a vote
for Miguel Estrada. Maybe you can support us on that.
Senator Leahy. Well, in fact, we could have a vote very,
very quickly on Mr. Estrada if Mr. Estrada were to--we have a
number of others, very controversial nominees of President
Bush, very conservative ones, all of whom answered the
questions they were asked, all of whom got votes when the
Democrats were in charge. I think of Professor McConnell and
others who fall in that category, some from your own neck of
the woods. As Senator Daschle and I told President Bush
yesterday, we would urge that we have a vote on Miguel Estrada
as soon as he answers the questions. in fact, he stated under
oath that he had no objection to answering these questions, but
the White House told him not to. If they would change their
view, let Mr. Estrada do what he said under oath that he is
perfectly willing to do, we could probably have a vote on him
very quickly.
Senator Sessions. Maybe that will happen.
I have a letter from Senator Frist, our Majority Leader,
with regard to nominees Judge Daniel Breen and Tom Varlan. He
concludes saying, ``I am convinced Dan Breen and Tom Varlan are
ideal candidates, and they have my highest recommendation and
unqualified support.''
I will place that in the record.
Mr. Tymkovich, sorry to interrupt you. We are glad you are
here.
STATEMENT OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT
Mr. Tymkovich. Thank you, Mr. Chairman.
Senator Sessions. Mr. Tymkovich, the Founding Fathers
believed that the separation of--did you have an opening
statement? We would be glad to hear that. I didn't give you
that opportunity.
Mr. Tymkovich. Mr. Chairman, I do not. I had a few
introductions, if I may.
Senator Sessions. Please, that would be wonderful.
Mr. Tymkovich. Thank you, Senator. With me today is my
wife, Sue Lyon, the noted Western novelist, I might add, who
writes about Utah and Wyoming and Colorado and other parts of
the Tenth Circuit history.
Senator Sessions. If it is not perfectly favorable, that
might make Senator Hatch nervous because he sees nothing but
good in Utah.
[Laughter.]
Mr. Tymkovich. Well, it is about a few bandits, but they
had a good heart to them, also.
My sons, Michael and Jay Tymkovich, who are students at
Peak to Peak High School in Lafayette Colorado. In the back of
the room are my father and mother, Carla and Michael Tymkovich.
Would you stand, please? And with them are my two sisters,
Jenni Tymkovich and Terri Tymkovich. Traveling from Columbia,
Missouri, today is Sally Lyon, my sister-in-law, who is a
middle school principal in the public schools in Columbia, and
her son, Jack, who is a high school student in Missouri, also.
Also, my friends, Mike Ibarra and Ray Gifford have joined me
here today.
Thank you, Senator.
Senator Sessions. Well, thank you, and we are glad to have
each of you here. And it is a special day, I know, to be chosen
and be nominated by the President for this important position.
Mr. Tymkovich, the Founding Fathers believed that the
separation of powers in a government was critical to protecting
the liberty of the people. Thus, they separated the
legislative, executive, and judicial powers into three
different branches of government--the legislative power being
the power to balance moral, economic, and political
considerations and make law; the judicial power being the power
to interpret laws made by Congress and the people.
In your view, is it the proper role of a Federal judge when
interpreting a statute or the Constitution to accept the
balance struck by Congress or the people or to rebalance the
competing moral, economic, and political considerations?
Mr. Tymkovich. Mr. Chairman, thank you for that question.
You've raised an issue that's a bedrock to our constitutional
structure, the separation of powers doctrine. And as the
Senator well knows, we have three co-equal branches of
government: the legislative, executive, and judicial branches.
I have had the good fortune in my career to serve or
represent all three branches of government at the State level
and have a keen and abiding sense of the proper role of those
institutions within that structure of government.
The job of the judiciary is to interpret the laws that have
been passed by Congress and apply them against our
constitutional framework. To do that, we have been given
precedent from the United States Supreme Court in interpreting
the Constitution as well as the guidance of Congress in
enacting legislation within its sphere of power.
Senator Sessions. Making law is a very serious matter. To
make constitutional or statutory law, the text of a proposed
amendment or statute must obtain a set number of formal
approval by the people's elected representatives. This formal
process embodies the expressed will of the people through their
elected representatives and, thus, raises the particular words
of a statute or constitutional provision to the status of
binding law.
Would you agree that the further a judicial opinion varies
from the text and the original intent of the statute or
constitutional provision, the less legal legitimacy it has? And
is it the proper role of a Federal judge to uphold the
legitimate will of the people as expressed in law or to impose
his or her view of what is wise or just?
Mr. Tymkovich. Mr. Chairman, a Federal judge has a solemn
obligation to leave his personal views behind when interpreting
an act of Congress or the provisions of the United States
Constitution. The job of a lower court, inferior court, as the
Tenth Circuit Court of Appeals in our constitutional structure,
is to apply precedents that have been given to it by the United
States Supreme Court and try not to vary from the Congressional
dictates as set forth in the statutes that have been enacted by
this body of Congress.
I've had an experience representing the State of Colorado
in various capacities and defending and interpreting State law
and have a keen understanding of the advocacy and the give-and-
take that goes into the legislative process and the importance
that judges apply the law that's been passed by the legislative
branches faithfully and according to the language and intent of
the legislative process.
Senator Sessions. In general, Supreme Court precedents are
binding on all lower Federal courts and Circuit Court
precedents are binding on the District Courts within that
particular circuit. Are you committed to following the
precedents of the Supreme Court and giving them full force and
effect even if you personally were to disagree with those
precedents?
Mr. Tymkovich. I am, Mr. Chairman. It's a critical part of
our system of government and the furtherance of the rule of law
that lower court judges, such as the Tenth Circuit Court of
Appeals, follow the binding precedent of the United States
Supreme Court. And I'm dedicated to applying that important
principle if I am fortunate enough to be confirmed as a Tenth
Circuit judge.
Senator Sessions. And, just again, would you apply that
decision as the Supreme Court held even if you personally
thought it was a seriously erroneous opinion?
Mr. Tymkovich. Even if I believed the Court was wrong, I
would apply that as binding precedent on the Tenth Circuit,
yes, sir.
Senator Sessions. Well, I think that is an important
principle. We are government of laws and not of men or women or
personal opinion. And I think that is important.
Also, I would just note that judges, by being given the
extraordinary power of a lifetime appointment, we remove them
from politics and the will of the people. Therefore, they must
show restraint and must allow the policy issues to be set by
the legislative branches. And if we do that right, we will
continue to have this tremendously wonderful rule of law that
we have.
Senator Schumer, do you have any comments or questions?
Senator Schumer. Yes, I do. Thank you, Mr. Chairman.
First, I want to welcome Mr. Tymkovich and his family. On
this Committee it is well known we have lots of different views
and different opinions, but I think one of the things that
binds us together, it just warms everyone's heart to see a
family come from all over, and friends, and we welcome you and
are glad that you are so joyful at your relative's or friend's
nomination here.
I have a few questions about some of the issues here today.
Mr. Tymkovich, when you were the State Solicitor General, you
litigated the Romer v. Evans, the Supreme Court case that held
that a Colorado State statute violated the U.S. Constitution's
equal protection guarantees. And you have been extraordinarily
critical of the Supreme Court's opinion in Romer v. Evans. You
have called the decision ``an important case study of the
Supreme Court's willingness to block a disfavored political
result, even to the point of ignoring or disfiguring
established precedent.''
You have written that the case is ``another example of ad
hoc activist jurisprudence without constitutional mooring.''
Will you please explain why you see Romer, a case that held
that the 14th Amendment's equal protection guarantee protects
the rights of gays and lesbians and bisexuals as a case of
judicial activism and unmoored jurisprudence?
Mr. Tymkovich. Senator, thank you for giving me the
opportunity to clarify my role in the Romer v. Evans case.
As the Senator knows, as a State Solicitor General it is
the job of the Office of the Attorney General, of which I'm a
member, to defend State laws which have been enacted by our
State legislature or, in this case, by a popular initiative.
And I might add that this particular provision, like many in
our State, are generated through a citizens' petition process,
put on the ballot, and then put forward to a statewide vote.
The officials of the State of Colorado and the office in
which I served had nothing to do with the development or the
passage of that law. However, once it's enacted, that
provision, like many others that were on the same ballot, fall
to the Attorney General's Office to defend. And as part of my
role as State Solicitor General, that was a provision that we
were obligated to defend, our constitutional duty on behalf of
the State of Colorado.
I might note Governor Romer, our Democratic Senator,
happened to be the defendant in that case and understands what
it's like to have an institutional obligation in those matters.
The issue in Romer v. Evans had to do with whether or not
the statewide provision could repeal or pre-empt certain gay
rights laws that had been enacted at the local level. Under the
constitutional jurisprudence at the time, we put forth what we
thought were the best arguments to sustain its
constitutionality under a rational basis analysis, under the
Federal Equal Protection Clause, and various State law
provisions.
On appeal to the Colorado Supreme Court, the Supreme Court
came up with a different analysis of what it believed to be the
constitutional problems with Amendment 2, namely, that it had
an effect on the voting participation rights of an identifiable
group, in this case people's characteristics based on their
sexual orientation.
That issue was appealed to the United States Supreme Court
in really a bipartisan decision in our State. I don't think
there was any question in the State of Colorado that it was an
appropriate case to be appealed to the U.S. Supreme Court, and
I think that it was a very controversial and divisive issue at
the time, as I think the Senator knows from reviewing my
background. And the State firmly believed that a United States
Supreme Court decision would bring legal closure to that
provision.
During the course of that appeal, Senator, I want to say
that I've always firmly believed in the doctrine of judicial
supremacy of--the supremacy of the Federal Constitution even to
a State provision like Amendment 2. The rule of law applied in
that circumstance certainly was a vote of--a statewide vote of
the people that it was entitled to be tested against the
Federal Constitution, which was what the case was all about.
At the Supreme Court level, as the Senator knows, the
Supreme Court did find that it violated the Equal Protection
Clause, and it was declared unconstitutional.
I had the opportunity to participate in a symposium about a
year after the Supreme Court decision with a number of
respected scholars from around the country, many from the left,
from the right, from the middle, to critique the Supreme
Court's decision. And as a part of my participation in that
symposium, I prepared a Law Review article that described the
legal arguments for and against the provision and what I
thought the applicable legal standards should be and how the
Court employed the decisionmaking process in that case.
Notwithstanding my observations about the way the Court's
decisionmaking process was employed, Romer v. Evans is binding
precedent of the United States Supreme Court, and I wouldn't
have any problem with applying it faithfully if I am fortunate
enough to be confirmed as a member of the Tenth Circuit.
Senator Schumer. But it is true that the Law Review article
you wrote, you were doing not in your official capacity--I
don't even know if you were still in the Colorado Solicitor--
were you in the Office of the Solicitor General at the time you
wrote the article and participated in the symposium?
Mr. Tymkovich. Senator, it was just as I was transitioning
off. I think the symposium occurred while I was in the late
stages of my tenure as Solicitor General.
Senator Schumer. Okay. But you wrote it--this was not--no
one was telling you to write this. This was not part of your
duties as a State official. Is that correct?
Mr. Tymkovich. No, the University of Colorado, my alma
mater, had the Byron White Constitutional Law Symposium, and
this was the issue, and they had asked me to present--
Senator Schumer. So these were your own opinions in this
article?
Mr. Tymkovich. Well, it was certainly my reflections on my
experience in the case, and my co-counsel in the case, Jean
Dubofsky, also provided her experiences.
Senator Schumer. But this doesn't seem to be a reflection
of what happened. I mean, you tell me if I am misinterpreting
these words. You said that you thought the Supreme Court
ignored or disfigured established precedents, and of most
interest to me, at least, and I think some others on the
committee, you called it ``another example of ad hoc activist
jurisprudence without constitutional mooring.''
Now, you believe that, right?
Mr. Tymkovich. Well, Senator, I think in the article I was
describing what critics have described the decisionmaking
process of Romer v. Evans, and I wanted to come back to the
symposium because I think the unanimous views of the members of
the symposium, constitutional professors like Janet Haley and
Larry Alexander, had similar criticisms of the decisionmaking
process.
So I certainly was not alone and in good company, left,
right, and center, in that symposium.
Senator Schumer. I am not arguing with you about the
outcome of the case, although we would probably--I agree with
the outcome, but I mean, I am not--at the moment I don't want
to get into a discussion; I may a little later. But these were
your views. I mean, let's just call a spade a spade. You were
writing a Law Review article, and you wrote very strong
language. You weren't saying ``others said.'' You were the
author, and you said, ``is another example of ad hoc activist
jurisprudence without constitutional mooring.'' I am not asking
if others agreed or disagreed. I am just asking, Was that your
opinion?
Mr. Tymkovich. Well, I think I was describing the overview
of many critics, and certainly I think, Senator, one of the
prerogatives of a lawyer who's had an opportunity to litigate a
case of some prominence--and this is a case that I lost, but
the purpose of the article was to present the arguments that
were made in the lower and appellate courts and why I thought
the law should be applied in a certain way. Certainly that
position was not accepted by the Supreme Court, but the purpose
of the article was to present those arguments as we presented
them--
Senator Schumer. Okay. But was your personal opinion about
the case what you wrote at the time you wrote it?
Mr. Tymkovich. My personal opinion was that we thought we
had a strong argument on the Equal Protection Clause which,
Senator, was not accepted by the Supreme Court.
Senator Schumer. As you probably know, because I am sure
you have been briefed about this, my basic view here is that we
ought to know the basic judicial philosophy of the people who
are before us. And there has been too much of a--this is what
the whole argument with Mr. Estrada is that my good friend Jeff
Sessions brought up, that he sort of refused to say how he
felt, and he hadn't written any articles or whatever else. And
I think that is--you know, I truly believe it is your
obligation to tell us your general views, not about a specific
case that might be decided in the future, and it is our
responsibility as part of the advise and consent process that
the Founding Fathers so wisely wrote into the Constitution to
get some of those views.
And so, you know, there is nothing wrong with your writing
and thinking, and there is nothing wrong, in fact, everything
right with your telling us what you think. And I do think that
at least some of us on this Committee think there is an effort
now that nominees shouldn't tell us what they think. And my
guess is they are asked about what they think by a lot of other
people as they move up the process, and somehow when it comes
to this committee, you are not supposed to say anything.
So let me just ask you once again. You wrote--I don't have
the context here. I don't know if we have the article. But as I
am told, you didn't say this is what other people say, this is
what--you said this is--you were arguing your own point of view
about this case after it had been completed. And it is a pretty
strong view to say that the Supreme Court exhibited ``another
example of ad hoc activist jurisprudence without constitutional
mooring.''
Just, you know, tell us candidly: Is that what you think? I
am not saying you won't follow the law if you get to be a
member of this very important Court of Appeals. But that is
what I would like to know.
Mr. Tymkovich. I think I answered the question, and I do
believe that the statement in context applied to a range of
critics of the decision. But certainly I think the article
speaks for itself that I was critical of the decisionmaking
process of the Supreme Court. As the Senator knows, it is one
case under the Equal Protection Clause which generally applies
a fairly deferential standard to State legislative
pronouncements. So in that respect, Senator, that's the basis
of the criticism that I made of that case.
But as I've testified--
Senator Schumer. Okay. I appreciate your candor.
Mr. Tymkovich. --I accept it as precedent and it's binding
not only on the Tenth Circuit, but--
Senator Schumer. I appreciate your candor, and I think that
helps in terms of, I think, not only me but some of my
colleagues here. Let me go on. Do I have a little time? Can I--
Senator Sessions. Your time is out, but if--
Senator Schumer. I won't go to a second round.
Senator Sessions. Senator Chambliss has been here so
faithfully.
Senator Schumer. Okay.
Senator Sessions. But if--
Senator Chambliss. How much longer do you want to go,
Chuck?
Senator Schumer. Well, I have a few more questions.
Senator Sessions. Whatever you two agree would be all right
with me. If he says okay, if you don't go too long--if you are
going to go a while, I think you ought to let him. But if you
have got a few more, just finish up.
Senator Schumer. Go ahead.
Senator Chambliss. I am not going to be very long.
Senator Schumer. Go ahead, Saxby.
Senator Chambliss. Mr. Tymkovich, just continuing along
that line, having practiced law for 26 years myself and tried
hundreds of cases, some of which I, like you, lost, it ain't
much fun to lose. And I have found that practicing law is a lot
like athletics. If your heart is in it, you want to win. You
emotionally get involved in your cases. You believe your
argument is right. You craft an argument irrespective of which
side of the case you are on. And you make that argument
forcefully, as you obviously did in this case. And I assume
that you believed that your argument was a correct argument and
should prevail. Otherwise, you wouldn't have been doing your
client justice, and I think it is only appropriate that you
were able to express yourself not just as an advocate for your
client but criticizing the decision. There is nothing wrong
with that. And my reading of what happened following this
case--and I want to ask you this. Is it a safe statement to say
that the legal reasoning that took place in the Romer case was
very much criticized by both liberals and conservatives? Is
that correct?
Mr. Tymkovich. Senator, that is correct. There's been, I
think, a range of academic assessment of that particular
decision, that particular ruling. And you also make a good
point. Certainly in private practice you have more luxury in
picking the cases that you might represent as a plaintiff or a
prosecutor as a defender. In State government, we don't get to
pick and choose our cases. We represent them all whether we
have a personal agreement or disagreement with them. It's our
solemn duty to really play that role in our State structure,
and just like the U.S. Attorney's Office represents acts of
Congress, that's our role as government lawyers at the State
level.
Senator Chambliss. You have already been asked this once,
but I just want to let you reiterate the point. This case has
been decided. You were not successful in the case. Precedent
has been set by the Supreme Court. As a Circuit Court judge, if
this issue comes before you under whatever circumstance, are
you prepared to follow the mandate that was handed down by the
Supreme Court?
Mr. Tymkovich. I don't have any reservations at all,
Senator. Thank you.
Senator Chambliss. Okay. The one thing, I guess, that
bothered me from time to time--and I ask this question of all
of our Circuit Court nominees--is that sometimes we see judges
who tend to legislate from the bench as opposed to interpret
the Constitution. As a member of the Circuit Court, will you
make a commitment to interpret the Constitution as you see the
Constitution and based upon the precedents set by the Supreme
Court versus legislating your opinions into decisions that you
render?
Mr. Tymkovich. Senator, I'll be sworn to follow the United
States Supreme Court as interpreted by the Supreme Court.
That's my solemn duty as a Circuit Court judge if I am
fortunate enough to be confirmed and have no reservations
whatsoever in applying--in playing that role within our
constitutional structure.
Senator Chambliss. I think that was all, Mr. Chairman. Let
me make one...yes, I think that is it, Mr. Chairman. Thank you.
Senator Sessions. Thank you, Senator.
Senator Chambliss. Thanks, Chuck.
Senator Sessions. Thank you for being with us.
Senator Schumer?
Senator Schumer. Yes, thank you, and I appreciate your
courtesy, as you always are, Mr. Chairman.
Senator Sessions. As you were when the shoe was on the
other foot.
Senator Schumer. Yes, indeed.
Senator Chambliss. Mr. Chairman, I was on a TV show with
him last night, and I thought I had him convinced to switch
parties. But obviously I didn't.
[Laughter.]
Senator Schumer. That is a long, hard road, Senator
Chambliss. Actually, we were on--what show? Chris Matthews,
whatever it is called. ``Crossfire''? No.
Senator Chambliss. ``Hardball.''
Senator Schumer. ``Hardball.'' And we were working on
something we agree with, which is to try and develop some
system so if, God forbid, a terrorist uses one of these hand-
held stinger missiles that our commercial airlines have a way
of avoiding that, the way our military planes do. It is really
important. Thanks, Saxby. Good to see you.
Okay. Let me ask you, Mr. Tymkovich--and I have asked this
question of all nominees, and all but one have basically given
me answers one way or another. Again, I don't expect us to
agree on most of them. But given that you were pretty strong in
your criticism of Romer, records show that it was decided 6-3
with Justices Scalia, Rehnquist, and Thomas dissenting;
Kennedy, O'Connor, and the other--in other words, the moderates
on the Court tended to vote--voted for the decision, the three
conservatives against, the four generally regarded as a little
more liberal for it.
Anyway, so your criticism, which you should do--I think it
is good that you wrote these articles and push your point of
view even though I disagree with them. But you were pretty free
with the criticism of Romer. So could you please identify and
discuss three Supreme Court decisions that you are critical of
or disagree with? And I would like to hear about cases that
have not been reversed by the Supreme Court and on which you
haven't yet taken a public position.
Mr. Tymkovich. Senator, thank you for the question. It
raises sort of--
Senator Schumer. I am sure it comes as no surprise to you
that I was going to ask that one.
Mr. Tymkovich. No, but it does raise a difficult
circumstance for a nominee in my position that may have the
opportunity to apply or have cases based on these types of
precedent before it as a judge on the Tenth Circuit, if
confirmed. So I'm a little reluctant to opine on recent case
law that may develop in my circuit or be an issue before me.
Having said that, I think, you know, it would be fair for
me to say that when I was State Solicitor General, we had the
opportunity to follow cases around the country closely that
might affect the State of Colorado. I can remember one in
particular where the State filed an amicus brief in support of
a hate crimes law in Minnesota, the case called RAV v. St.
Paul, and we urged the Supreme Court in that case to uphold the
constitutionality of a State provision in that regard. And part
of the reason we did that was because about at the same time we
were defending in Colorado an ethnic intimidation law--
Senator Schumer. And you personally agreed with that?
Mr. Tymkovich. And I believe that the arguments that we
presented to the Supreme Court through the amicus were, you
know, the better arguments and were reflective of the interests
of our State.
You know, having said that, I certainly don't believe that
it's my role to insert my personal views as a judge in this
process. I need to set aside the advocacy that we've taken in
cases both in the private practice and as government lawyers,
and I'm firmly convinced that I can set aside my personal
advocacy in cases and be a fair, impartial, and open-minded
judge, if confirmed.
Senator Schumer. Right. But I would like still to repeat my
question here. You have answered one. You have named one. Name
two other--and I will say that you agree or disagree with. This
does not violate the canons in any way. These are already
decided cases. Law professors who are on the Supreme Court,
prior Justices who have had their records, everyone talks about
these. And until the last few weeks, so have just about all
nominees that we have asked. I ask this of judges I interview,
you know, when we are making decisions in terms of the judges
in New York. Just last week, I asked a nominee by the President
for some cases that she agreed with and disagreed with. She
gave good answers. I am not sure I agreed with her answers, but
they helped me understand the way she thinks, and that was very
positive.
So why don't you try to think of a couple of others that--
this has nothing to do with deciding future cases. This has to
do with your thoughts on jurisprudence, and as you know,
nominees of Democratic Presidents on the courts vote somewhat
differently than nominees of Republican Presidents--not all the
time. So it is not simply that we have a machine, a legal
machine that applies the precedents in the same way. We know
that. Everyone knows that. Otherwise, we wouldn't even need a
Supreme Court or appellate courts or whatever. We could just
feed this into some kind of computer.
So I just want to repeat my question of you. Can you name
two other cases or two cases you agree with or disagree with,
cases that have already been decided.
Mr. Tymkovich. Well, Senator, I think I've--
Senator Schumer. Have you ever discussed cases with other
people now that you are in private practice? Have you ever?
Mr. Tymkovich. Certainly I have, and in answering your
question, I think I've mentioned, you know, two cases that I've
been familiar with: the equal protection case that we discussed
earlier, the Romer case, and the hate crimes case. And, again,
from a practitioner's standpoint, I advocate positions on
behalf of clients. I did have the opportunity in the last
couple of years to try to apply a case called Buckhannon v.
West Virginia that has to do with a prevailing party attorney's
fees claims in a 1983 context and had the opportunity on behalf
of a client to present arguments somewhat different from the
U.S. Supreme Court on that as a part of our--as part of our
presentation of that case.
Senator Schumer. Right. What do you think of the Buckley v.
Valeo decision? Do you think that one was correctly decided?
Mr. Tymkovich. Buckley v. Valeo is certainly binding
precedent.
Senator Schumer. I understand. I am assuming that you will
follow precedent on the Tenth Circuit. You don't have to add
that. What do you think of it? I personally think it is a
rotten decision.
[Laughter.]
Mr. Tymkovich. Senator, it was certainly recently--
Senator Schumer. I am not trying to lead the witness, Mr.
Chairman. I am just showing him that we all have opinions on
these things, and he is too smart to be led, anyway.
Mr. Tymkovich. And, Senator, you know, certainly that was
reaffirmed last year in the Nixon v Shrink PAC.
Senator Schumer. I know you will follow it if you become a
judge. What do you think of it?
Mr. Tymkovich. Well, I had the opportunity as a
practitioner to try to apply it in an actual case in the
Colorado Federal courts and District Court and found it very
difficult and challenging to apply as a practitioner. It's, I
think, the longest decision in the annals of the United States
Reports. So it's certainly a challenge for a practitioner, and
maybe an admonition for all of us to keep opinions to a
readable and understandable length. But--
Senator Schumer. Do you believe that the First Amendment
protects someone's right, you know, a multi-millionaire's right
to say put a commercial on the air 417 times, as opposed to
just getting out their view? Because that was the basic--as you
know, that was the basic premise of Buckley, that the First
Amendment said that you could--if you had a whole lot of money,
no limits were permissible, that, A, the First Amendment
protected that right, and, B, it prevailed over the
countervailing right--the countervailing notion--it is not a
right--of trying to see that money didn't sort of dominate our
political system. That is why I disagreed with it. I think
there is a protection by the First Amendment, but no Amendment
is absolute. We all agree that you can't falsely scream
``Fire'' in a crowded theater. I think that was Justice Holmes
who said that. And that is a limitation on your--no? Well, one
of our--it is precedent.
Senator Sessions. I thought so.
Senator Schumer. You think it is Holmes? Well, Jeff and I
agree. See that? Let the recorder underline that, please, that
Jeff and I agree.
[Laughter.]
Senator Sessions. I will have to resign here.
Senator Schumer. But, in any case, it is not an absolute
right, and that is why I thought the Court wrongly decided.
Just give me some thoughts on it, aside from the length of the
opinion.
Mr. Tymkovich. Well, Senator, I think I was trying to do
so. Certainly that case involved some very thorny issues of
public policy and the application of the United States
Constitution to those issues and has been binding precedent for
some time.
As a practitioner and trying to apply that precedent, you
know, one thing I found is that the circumstances that underlie
a case are critical. And having briefed and presented trial
evidence under the Buckley case, I can appreciate as a trial
lawyer at that level trying to marshall facts and law to
present the best case to the--
Senator Schumer. You have some skepticism about it.
Mr. Tymkovich. --trial court. And certainly I understand
the difficulty in doing so, and I think the lesson I take from
that as a nominee to an appellate bench is that you really have
to get into the record, look at the briefs and arguments that
will be presented by the advocates in a case, and really
approach an issue like that with an open mind and a fair mind,
realizing, of course, that it's our job to apply faithfully the
precedent of the United States Supreme Court in those
circumstances.
Senator Schumer. But would it be unfair to say you show
some skepticism towards that decision? Admittedly, you will
follow it to the letter of the law and the best of your ability
once you are a judge, but personally you are a little bit
skeptical.
Mr. Tymkovich. I don't think my personal views come into
play because I have to tell you--
Senator Schumer. That is where we disagree.
Mr. Tymkovich. --that as a practitioner I've had the
opportunity to apply precedent in that area and others. And
sometimes it's easier said than done, Senator, as you know as a
lawyer yourself.
Senator Schumer. Let me ask you about another case since--
do you have any others that you want to offer that you would
agree with or disagree with? We have talked about now three.
You named St. Paul.
Mr. Tymkovich. Nothing additional, Senator.
Senator Schumer. Okay. Let me ask you then about Morrison,
a case you are familiar with, I presume, Morrison v. United
States, the VAWA case.
Mr. Tymkovich. Yes.
Senator Schumer. Okay. In Morrison v. United States, a 5-4
Supreme Court held that, despite years' worth of hearings and
well-substantiated findings proving that violent crime against
women costs the country between $5 and $10 billion each year in
health care, criminal justice, and other social costs, Congress
didn't adequately establish the effect of violence against
women on interstate commerce to justify the use of the Commerce
Clause. The four Justices in the minority disagreed, arguing
the Court should show deference to Congress' ample findings and
uphold the Violent Against Women Act as a rational response to
the national threat posed by gender-motivated violence.
The majority's decision was criticized by many as a real
overstepping, judicial activism, something you criticized Romer
for. And Justice Breyer, who was one of the four Justices who
dissented, he wrote that, ``Since judges cannot change the
world, it means that within the bounds of the rational,
Congress, not the courts, must remain primarily responsible for
striking the appropriate State-Federal balance.''
Do you see Morrison as an incident of judicial activism?
Again, I know you will follow it.
Mr. Tymkovich. And, Senator, I will follow that and the
other binding precedent of the United States Supreme Court in
this area. Certainly the Court has applied the doctrine of
federalism, which has to do with the respective powers between
the State and Federal Government. In recent years, through its
case law--Mr. Chairman had mentioned the separation of powers
doctrine as an adjunct to that.
As an attorney representing a legislative body, I certainly
understand some of the difficulties in the legislative process
and certainly, while I haven't worked for the Congress of the
United States, I understand the important fact-finding role of
this body in providing a basis and support for legislation.
Senator I think that it goes without saying from my
experience in the State of Colorado that a legislative
pronouncement such as VAWA has a presumption of
constitutionality and is entitled to great deference from the
judicial branches in its applying of the law to that--
Senator Schumer. Do you think the majority showed great
deference to the Congress' finding in that case?
Mr. Tymkovich. I have not read that decision recently,
Senator, so I don't have a good feel for exactly what arguments
were made.
Senator Schumer. I will ask--
Mr. Tymkovich. So I can't comment on that.
Senator Schumer. I would ask you to read it, and I will ask
a question in writing, just that specific question, if you
don't mind.
Mr. Tymkovich. Thank you.
Senator Schumer. Okay. I have one more, Mr. Chairman.
You know, one other thing which is sort of interesting,
obviously--
Senator Sessions. I am enjoying this. It is a good exchange
between two good lawyers, and I am glad you are having--I would
like for you to have full time to ask your questions.
Senator Schumer. Thank you. I appreciate it.
Senator Sessions. Very interesting discussion.
Senator Schumer. Thank you, Mr. Chairman.
Just tell me a little--and I realize there are different
constitutional bases here. But the Romer case, basically the
question was: Should the State be allowed to overrule local
law? It was a State referendum that did so. So you are dealing
with States to localities, and I am not familiar with Colorado
law. In New York, the localities are creations of the State,
and the State does have a lot of benefit of the doubt against
the localities.
Of course, Morrison was a case--or the whole federalism
issue is: What can the Federal Government do in terms of State
law?
Do you think there are some differences between those two?
The analogy, you know, if we were doing an analogy in one of
these tests, they would say Federal is to State law as State is
to local law in terms of how much deference should be shown.
Just give me some thoughts on that. This is not a case, just an
interesting question.
Mr. Tymkovich. It sounds like an SAT question, Senator
Schumer.
Senator Schumer. Yes, it does. My first job was working for
a--I went to Madison High School in Brooklyn, New York, and I
had to get a job when I was 14. That is when you could get
working papers. And I knocked on the door of a little office,
and it was a Madison High School teacher who was starting a new
business. And the business was training students to take the
SATs. So for 3 years I ran the mimeo machine that laid out the
preparatory materials, and I got very good at them. Actually,
his name--I think you probably even heard about him in
Colorado. His name was Stanley Kaplan.
[Laughter.]
Mr. Tymkovich. Sure, absolutely.
Senator Schumer. This was a little business with five
people, and I was sort of the go-fer. And he sold it to the
Washington Post for $50 million 20 years later. God bless
America.
[Laughter.]
Senator Schumer. In any case--it is. I was thinking of the
SATs. But just give me your thoughts on that.
Mr. Tymkovich. Senator, it is an important question because
it has to do with sort of the relative sphere of
decisionmaking, and I think each State has a really different
take on that so it is tough to come up with a perfect analogy.
Certainly in the State of Colorado, we have a structure where
the State Constitution, like the Federal Constitution, is
supreme, although we have a lot more interaction between the
local and State governments than you would find a perfect
analogy on the Federal model. And so we don't have the same
type of federalism structure in our State Constitution that you
see in the Federal one, but I think having said that, there are
some common themes, including the supremacy of statewide law to
a local government, just like the supremacy of the
Constitution, both the Congress and the States as well as the
supremacy of Congressional laws on State government.
I think that is an important part of the dialogue between
State and the national legislature on the types of laws to pass
and how to accommodate local concerns. And I think that
certainly my experience in State government is it's important
for this body to reach out to the State governments to
understand the effect of legislative pronouncements on State
and local governments and be sensitive to that testimony as a
part of their fact-finding basis.
Senator Schumer. And, again, because the Romer case was so
different because it was, as you say, a statewide referendum,
but would you say the same thing ought to apply with the States
and the localities, before a State does something they ought to
go reach--
Mr. Tymkovich. Without question.
Senator Schumer. Okay. One final question, Mr. Chairman. I
thank you. It is related. It is the same stream of thought
here.
A few years back, you testified in support of the Tenth
Amendment Enforcement Act of 1996, which would have instructed
the courts to presume that all Federal laws were
unconstitutional when they allegedly infringed on States'
rights. You endorsed reversing the normal rule that the Supreme
Court presumes Federal laws are valid under the Constitution
and required Federal agencies to severely limit their
regulations when they pre-empted State law.
In your testimony in support of this bill, you objected to
Federal environmental regulations, Medicaid requirements, and
the motor voter law as too burdensome on the States. You also
argued that the bill should go further--this bill would be
regarded by many as pretty extreme, but you argued that the
bill should go further and require that all existing Federal
regulations be terminated if they did not comport with States'
rights principles.
Your testimony suggests to me, your testimony back then,
that you have a rather constricted view--``rather'' would be
understating it, at least from what I have stated here--of the
Commerce Clause, of the Spending Clause, and of the 14th
Amendment.
Can you tell us about that testimony? And what can you tell
us to allay our concerns that your personal views in terms of
this federalism issue, which is a very important issue, are
not--I am not saying right or wrong, but if you had to line
people up on this issue, you would be sort of way over there on
the State--at the far end of the State side.
Mr. Tymkovich. Senator, thank you for the question
regarding the testimony. First, I might add that I was
presenting the testimony of the Office of the Attorney General,
and the Attorney General was unable to testify personally on
behalf of the--
Senator Schumer. Did you help write it? Did you help
prepare it? Or did you just read it because--
Mr. Tymkovich. Senator, I did not help prepare that
testimony. It was prepared by other staff within the Office of
the Attorney General, and I was presenting it on her behalf to
this body.
I might add that I followed Senator Bob Dole, who was the
primary sponsor of the bill at the time, and I want to add a
few things about it.
First of all, I think I respectfully disagree with some of
the application of the statute. As I understand it, it's quite
similar to President Clinton's federalism order that he issued
while he was in office, which asked Congress and the Federal
agencies to look, listen, and be sensitive about funding issues
that would affect State and local governments.
Senator Schumer. That is different than a presumption that
a law ought to be scrapped.
Mr. Tymkovich. Well, it certainly as applied would have a
similar effect, and I think the historical context at the time,
I think the Senator probably appreciates that there were many
concerns about whether Federal mandates would be funded on
State government at the time, and I think that the testimony
reflects some frustration that some of the States had, and the
Attorneys General that appeared on the panel with me had
similar examples from their State.
I might add that one of the experiences that the commentary
provided was, you know, this notion that States can be very
innovative in certain areas, including the environment
regulation. And in Colorado at the time, for example, we had
two, what I think are very innovative environmental policies,
and we were having trouble with the Environmental Protection
Agency from accepting those as sort of alternative forms of
regulation.
So one of the points that we wanted to make in the
testimony was that you ought not to stifle appropriate
innovation below as a part of the process.
Senator Schumer. Did you basically agree with the testimony
you gave? You seem to from your comments here.
Mr. Tymkovich. Senator, I was presenting the testimony of
the office.
Senator Schumer. I understand, but I am asking you
personally. Did you at the time personally agree?
Mr. Tymkovich. I think there were parts of that I did and
parts of it that I did not endorse. But I was the presenter for
the Office of the Attorney General. It was my job to present
the testimony to this body.
Senator Schumer. Okay. Thank you, Mr. Chairman. I
appreciate your giving me the extra time, and I want to thank
you, Mr. Tymkovich, for your answers and for your being here.
Mr. Tymkovich. Thank you.
Senator Sessions. Thank you, Senator Schumer.
Mr. Tymkovich, the Law Review article on the Romer case you
were asked about, let me ask you a few additional questions. It
was co-authored by you and two other people from the Attorney
General's office. Is that correct?
Mr. Tymkovich. Yes, sir.
Senator Sessions. And were there other attorneys involved
in the litigation of the case also?
Mr. Tymkovich. They were involved in the litigation of the
appellate proceedings before the Colorado Supreme Court and the
United States Supreme Court, yes.
Senator Sessions. And so you were explaining the position
of the State of Colorado?
Mr. Tymkovich. That's correct.
Senator Sessions. And other States that joined in that
brief.
Mr. Tymkovich. That's correct.
Senator Sessions. You know, I was an Attorney General also,
and I just have to say with absolute clarity that an Attorney
General has an absolute duty to defend the laws of the State
which he works for. There is no one else that can defend the
State. There was a referendum process established in Colorado,
and Colorado people voted in this matter, and you have an
absolute duty to defend that. And, frankly, I joined in one
brief. There were seven other States. I know California and
Virginia joined in on that brief. There was another brief in
support of your position that had about ten States joining it.
So that was not an extreme position, in my view.
With regard to the power of the State over the cities, as
Senator Schumer says, I assume it is true in Colorado that
cities are creatures of the State. Is that right?
Mr. Tymkovich. That's correct.
Senator Sessions. So it always struck me, when I heard
about the case, that the State of Colorado has the legal
authority to state a State law that would pre-empt local
municipal laws and ordinances. Is that a factor in this case?
Mr. Tymkovich. That's correct. If there is an issue of
statewide concern, it would pre-empt local provisions that
would be contrary to it.
Senator Sessions. And in one sense--I know there are a lot
of implications of the act, but in one significant sense, it
seemed to me, and I am sure to the other States who joined with
you, that this diminished State power vis-a-vis the cities,
which they create, is that a fair statement?
Mr. Tymkovich. I think that is. I think that's very
accurate, Mr. Chairman.
Senator Sessions. So, you know, the Supreme Court ruling,
in fact, diminished the authority a State has over its
creatures, the cities. It was a tough case, and there has been
a lot of criticism of it.
You and your colleagues did not just volunteer to write
this article. You were asked to delivery a paper on the State's
arguments and the Court's decision at the Byron White
Conference on American Constitutional Study. Is that correct?
Mr. Tymkovich. Yes, Mr. Chairman.
Senator Sessions. And there were a number of other speakers
and presenters at that conference?
Mr. Tymkovich. That's correct.
Senator Sessions. So you didn't just go out and call a
press conference to complain. You were asked to make a
presentation in a prestigious forum on this subject.
Mr. Tymkovich. That's correct, Senator. We joined scholars
from around the country, as I said, also joined by the opposing
counsel in Colorado that handled the other side of that case.
Senator Sessions. But even in that article where you made
some criticism of Romer, you noted this, for those who are
concerned about the results of it. A lot of people wanted a
different result, but I think you were justified in defending
the result that the people of Colorado voted by referendum.
But, at any rate, you said in the article, did you not, ``The
Amendment 2 litigation is remarkable not for its results but
for the tangled jurisprudence''? Does that indicate that you
were more concerned about the complexity of the Court rulings
than you were of the outcome of the case?
Mr. Tymkovich. It certainly was, Senator. We tried to
present the best arguments to support the amendment as
representatives of the State, and certainly I think the quote
there reflects some of my legal experiences as a part of that
case.
Senator Sessions. And others at the symposium supported the
result of the Court's opinion, but also, those who supported
the result, some of them questioned the legal reasoning of that
opinion, did they not?
Mr. Tymkovich. Yes, they did, in no uncertain terms,
Senator.
Senator Sessions. I have one example here. Professor Larry
Alexander notes that at two important junctures in the
majority's reasoning ``the dog did not bark.'' That is,
important steps ``in the ordinary equal protection analysis
were omitted.''
Professor Lynn Baker writes that, ``The majority reached
the right results, but for the reasons that it articulated only
partially or not at all.''
Akhil Amar, a respected liberal law professor at Yale,
wrote the following in a Law Review article supporting the
Romer decision. He said this--he supported the result. ``Since
Romer came down, I have had many conversations about it with
law professors and students across the country. The initial
consensus seems to be that while Justice Kennedy's language
soared, Justice Scalia's logic held. Justice Kennedy won their
hearts, Justice Scalia their heads.''
The New Jersey Law Journal editorialized, ``We applaud the
result in Romer. We regret the manner in which it was reached.
The dissent's philosophy is clear, though wrong. The majority
opinion would have been far stronger and more convincing if it
had been forthright in explaining why Amendment 2 lacked a
rational basis.''
Stewart Taylor, writing in the ``Texas Lawyer,'' found the
decision ``immensely inspiring and intensely troubling.'' On
the one hand, he praised the result in the case, liked the
result. On the other hand, he faulted Justice Kennedy's
majority opinion for its ``crude, superficial, and evasive''
reasoning. He went even further in characterizing Justice
Scalia's dissent as ``elegantly vitriolic''--that is nice
language. I am sure Justice Scalia was proud of that comment--
``pervasive with distortions''--but not that part--``and a
resort to bumper sticker jurisprudence.'' He expressed concern
that the decision could ``damage the Court's moral authority
and even in the long run set back the cause of gay rights.''
And he pleaded with the Court to ``try harder to ground its
rulings in constitutional language, theory, and precedent.''
And was not that exactly what you criticized the Court for, not
grounding the opinion in the Constitution?
Mr. Tymkovich. Yes, Senator, I think those excerpts reflect
the range of commentary on the result and the reasoning there,
and certainly our presentation was certainly in line with a lot
of the analysis of the case.
Senator Sessions. Well, it was a very, very interesting
case and had a lot of ramifications, and there has been a lot
of criticism of it. I don't think you should be held up because
of that.
I would mention this also. Even those who disagreed with
Amendment 2 understood the role of the State Attorney General
in defending the measure. The editorial page of the Denver
Post, which has been extremely critical of the amendment from
the beginning--in other words, they editorialized against its
passage. Is that correct?
Mr. Tymkovich. That's correct, Senator.
Senator Sessions. Recognized that the State was required to
defend the measure. The Post also singled out you in praising
the State's handling of the case. They said, ``The Post was
consistently critical of Amendment 2, but we don't fault
Attorney General Norton''--now Secretary of Interior Norton,
who was your Attorney General at that time. Is that correct?
Mr. Tymkovich. Yes, sir.
Senator Sessions. ``...for defending it vigorously. Once it
became part of the State Constitution, it was her sworn duty to
defend it.'' And I agree with that.
``For his part, Tymkovich fought doggedly and skillfully,
losing simply because no amount of advocacy could offset the
legal weaknesses of the sloppily drafted and, at times,
virtually inchoate initiative itself.''
Now, let me ask you: Did you write the initiative or have
anything to do with writing it?
Mr. Tymkovich. No, Senator. Nothing whatsoever.
Senator Sessions. And your office didn't have anything to
do with it?
Mr. Tymkovich. None.
Senator Sessions. This was a group of people in Colorado
that put it together and got it out on the ballot for a vote.
Mr. Tymkovich. It's part of our process of direct
democracy, and it can be very difficult to apply sometimes, as
those comments reflect.
Senator Sessions. The Denver Post goes on to say, ``In law,
as in poker, you have to play the cards you're dealt. We'd say
Norton and Tymkovich played out their hands pretty well,
considering they held a pair of deuces.''
Well, that is what you have to do at times to defend the
case, but I thought it was a little better case than that,
frankly. And so did about 20 other States who supported
Colorado in it. And I'm not real--I think one reason the
Court's reasoning has been criticized is if it were real easy
to strike down that legally passed act by the people of
Colorado, maybe it would have been clearer. I think it was a
little bit difficult for them to justify their position, and
that is why their logic is not very clear.
Well, you know, I think Senator Chambliss was exactly
correct. You know, when you pour your heart in the case and you
advocate it and you believe in the State, later when you are in
private practice and making a comment on it, if you have got a
little enthusiasm there for your case, there is nothing wrong
with expressing it.
Now, Mr. Tymkovich, the attorney on the winning side of the
Romer case was Jean Dubofsky. Is that correct?
Mr. Tymkovich. Yes, Senator.
Senator Sessions. And she supports your nomination for the
tenth Circuit. Is that correct?
Mr. Tymkovich. That's correct, Mr. Chairman. She submitted
a letter, along with several other former Colorado Supreme
Court Justices, including the author of the majority opinion at
the State Supreme Court level, Chief Justice Rovera, and--
Senator Sessions. Now, did the Supreme Court rule for or
against the referendum?
Mr. Tymkovich. The Colorado Supreme Court ruled against the
measure.
Senator Sessions. But even that Justice who wrote the
opinion against your view supports you. Is that correct?
Mr. Tymkovich. That's correct, along with a number of other
Justices that were on the court at the time.
Senator Sessions. Now, Dubofsky was a former Colorado
Supreme Court Justice, and certainly no right-winger. The
Denver Post described her as one of ``a dwindling breed of
unabashed liberals.'' There are few left. Some of them on my
left right now.
[Laughter.]
Senator Sessions. I don't know how dwindling they are, but
they--
[Laughter.]
Senator Sessions. They are unabashed, I will tell you that,
and believe in and fight for what they care about daily.
Justice Dubofsky, along with a number of other former
Colorado Supreme Court Justices, has written a letter in
support of your nomination: ``Based on our professional
experience, we are of the unanimous judgment that he is well
qualified and most able to serve as an appellate judge of the
United States Court of Appeals.'' So we will put that letter in
the record.
Justice Dubofsky also recognized--well, I will just finish.
My time is up. She has recognized that you were simply doing
your job as Solicitor general. She commended your performance.
She says the Colorado Attorney General's Office ``dealt with
the case as well as it could have.'' She goes on: ``In fact,
Justice Scalia got upset with him in oral argument because
Tymkovich would not answer the way he wanted you to answer the
case.''
Well, those things happen in court, and that is what
litigation is all about.
Senator Feingold, I would recognize you.
Senator Feingold. Thank you, Mr. Chairman, and especially
thanks to Senator Kennedy. I have almost 10 years' seniority on
this committee, but I think he has got 4 times more than that.
So the fact that I get to go before him is greatly courteous of
you, Senator Kennedy.
I would like to return to the same subject. First,
congratulations on your nomination.
Mr. Tymkovich. Thank you, Senator.
Senator Feingold. I will go back to the issue of gay rights
and your involvement as Solicitor General of Colorado in the
case that led to the U.S. Supreme Court's Romer v. Evans
decision. As has been discussed by Senator Schumer and Senator
Sessions, you defended the ballot initiative on behalf of the
State of Colorado. It was, I agree, your job to do that and I
accept that. But I do want to ask you a bit about what perhaps
goes beyond the zealous advocacy for your client, and this is
the article that we are discussing, the 1997 University of
Colorado Law Review, that forcefully presents your view that
laws against discrimination based on sexual orientation in
activities like employment, housing, and education in places
like Denver, Aspen, and Boulder somehow conferred special
rights or protections on gays and lesbians.
Let me ask you this: Do you believe that Title VII of the
Civil Rights Act of 1964, the landmark legislation prohibiting
employment discrimination based on race, confers special rights
on African Americans?
Mr. Tymkovich. Senator, the anti-discrimination laws in
Colorado and at the Federal level are important protections to
minorities and others that have faced discrimination. So to the
extent that the baseline was no, you know, Federal or State
protections based on ethnicity or race, the addition of those
laws to the legislative pronouncement provides a protection, an
additional protection that would not be available under the
common law. So in that sense, certainly under Colorado law,
additional protections are provided through the discrimination
laws, and I might add that's an important part of the
legislative process to identify and protect injustices out
there.
Senator Feingold. But what about my question? Does Title
VII of the Civil Rights Act of 1964 confer special rights on
African Americans?
Mr. Tymkovich. I'm not sure exactly what you mean by
``special rights,'' Senator, but I would say--
Senator Feingold. Well, I am referring to the fact that
your article seemed to say that the Colorado law conferred
special rights or protections on gays and lesbians. I am asking
you whether or not Title VII of the Civil Rights Act of 1964 in
that same spirit in your view confers special rights on African
Americans?
Mr. Tymkovich. No, Senator. I think it provides a civil
remedy, some laws provide a criminal remedy, on behalf of
discrimination, and certainly that's the intent and purpose of
those laws.
Senator Feingold. In that same spirit, do you think that
Title VII wrongly protects Americans from employment
discrimination based on race, ethnicity, national origin,
religion, age, disability, or gender? Do you believe that an
American who brings a claim of job discrimination based on any
one or more of these categories is somehow enjoying special
rights or protections?
Mr. Tymkovich. No, Senator. They're simply enjoying the
protections that this body has provided to those particular
groups.
Senator Feingold. As you discussed in your article, you
believe that the Supreme Court was wrong to be hostile to the
political decision of a majority of Colorado voters who
supported adoption of the Colorado amendment. You state that
Colorado voters made ``a seemingly good-faith policy choice.''
If I understand you correctly, you agree with Justice
Scalia's dissent in Romer and believe that the Court improperly
injected itself into a political debate. Is that your view?
Mr. Tymkovich. Senator, that's an excellent question, and I
appreciate the opportunity to clarify and reflect on the issue
below.
As you know from your participation in this body, there are
important issues of public policy debate that cross party lines
or are bipartisan and very difficult issues. In Colorado, the
question of whether or not to add sexual orientation to State
and local anti-discrimination laws has been a very important
and ongoing political debate in our State. And certainly
Amendment 2 was in part within that context and dialogue. And
certainly many people respectfully disagreed with the
legislative pronouncement there, and I think the point I was
trying to make in those remarks and certainly in the case is
that the courts were not a good forum for airing sort of
political or legislative policy-type arguments, and that the
courts are best able to address a constitutional principle when
they have the concrete facts and law before them and not sort
of rhetorical or legislative-type pronouncements.
The Amendment 2 case had a strong mix of sort of a policy
debate in that sense, and I think my comment was that the
policy debate and certainly the arguments we made to the courts
is that that would be better left to the political process.
Senator Feingold. I am taking that as a yes, that you agree
with Justice Scalia that the Court improperly injected itself
into a political debate. Do you believe that the Court should
have--is that fair?
Mr. Tymkovich. Senator, I think Justice Scalia accepted
some of the presentation of the State, but they rejected
others. So I don't wholly agree or disagree with the dissent in
the case, but it does--
Senator Feingold. Do you agree with that point?
Mr. Tymkovich. --reflect some of the arguments that were
made.
Senator Feingold. Do you agree with that point?
Mr. Tymkovich. I agree--the presentation that the State
made to the Supreme Court was that it was a policy debate and
not subject to the Supremacy Clause of the equal protections.
But, again, as I testified earlier, that argument, that
presentation was not accepted by the Court, and regardless of
my personal views, I am perfectly capable and willing to
impartially apply that precedent.
Senator Feingold. That isn't what I am asking. I have asked
your personal view, and I take it that your personal view is
that the Court did the wrong thing here and improperly injected
itself into the political debate. I understand that you would
follow the law based on the Court's decision.
Mr. Tymkovich. I would follow the law.
Senator Feingold. Do you believe that the Court should have
given more consideration to the privacy, associational, and
religious rights of persons who do not condone homosexual
behavior?
Mr. Tymkovich. Senator, the lower courts in Colorado had
identified that there were religious and associational factors
that would be implicated by the laws that were pre-empted by
Amendment 2. I think, again, that that, as I've tried to
explain in my previous testimony, is part of the political
give-and-take, the public policy give-and-take in crafting a
gay rights law that would accommodate certain interests, and
certainly that's part of the policy debate that we've seen in
our State. Certainly the Amendment 2 provision would have
required that debate to go at the statewide level, and as I
recall, even during the judicial proceedings on Amendment 2,
there was a move to enact a statewide initiative that would--
Senator Feingold. Okay. I accept that, but I am asking you
your personal view. You are an expert on this. Do you think the
Court should have given more consideration--you, do you think
the Court should have given more consideration to the privacy,
associational, and religious rights of persons who do not
condone homosexual behavior?
Mr. Tymkovich. Senator, I think that in that case, as
others, as an advocate, as a representative of my client, we
were presenting what we thought were the best arguments based
on the applicable case law--
Senator Feingold. I am asking your view right now.
Mr. Tymkovich. --to the Supreme Court.
Senator Feingold. I am not asking in your role as an
advocate. I am asking in your view should the Court have taken
that more into account?
Mr. Tymkovich. I think, as I've testified earlier,
indicated in my article, that I believe that we had strong
arguments based on the existing precedent at the time and asked
that the Court accept that.
Senator Feingold. Well, you seem to be refusing to give
your own view on this, and I don't know why. This isn't a
pending case. This is a case that was resolved by the Supreme
Court. You have strong opinions indicated I here, and I don't
understand why you can't give me your personal view.
Mr. Tymkovich. I think I've reflected the views that we
presented to the Court, and as I've testified--
Senator Feingold. You did do that and that is all you have
done, and you are not answering my question.
Throughout our Nation's history, proponents of racial
discrimination have used the argument that they should be free
to discriminate based on their privacy, associational, or
religious rights. In Brown v. Board of Education of Topeka,
Kansas, the Supreme Court injected itself into a contentious
political debate where in some parts of the country separate
but equal schools were defended to the point of literally
spilling blood over the issue.
Do you believe that Brown v. Board of Education was wrongly
decided and that the Supreme Court should not have injected
itself into the policy question of maintaining school
segregation?
Mr. Tymkovich. Senator, it's an important question because
certainly the history of discrimination in this country has had
a very mixed and very sorry record at times, and the Brown
decision is certainly a reflection of part of that history.
One of the reasons I went to law school was the influence
of a book I read about the Brown case called ``Simple Justice''
that traced the history of the legal development from Plessy v.
Ferguson to the Brown decision, and a very powerful historical
book about the legal and social and ideological aspects of
discrimination in this country.
So certainly Brown is one of the cornerstones of American
jurisprudence, and certainly its foundation is a very important
part--
Senator Feingold. So you obviously don't disagree with that
decision, and that is why I want to ask you: What is the
difference in your mind between African-Americans and gay
people in terms of whether laws protecting them from
discrimination are permissible?
Mr. Tymkovich. Senator, I think that it's a very important
part of the public policy debate to analyze the rationale and
the reasons for a particular legislative judgment. I don't sit
here today as having a legislative agenda. I do not. My goal as
a Tenth Circuit judge, if confirmed, would be to impartially
and fairly and open-mindedly apply the law. You're asking me
for a legislative judgment, and I certainly--
Senator Feingold. No. I am asking you your personal
opinion, having studied this in law school, having the question
of discrimination having been one of the inspirations for your
going to law school, and doing extremely well, I might add, and
being a very distinguished lawyer. I am asking you what your
thought process is here. What is the difference between
discrimination against African-Americans and gay people?
Mr. Tymkovich. Senator, I think that, you know, again, to
answer your question from a public policy standpoint, I believe
that this body, Congress, which has debated whether or not to
add sexual orientation to Title VII or to Federal law, and
certainly the debate at the State level would be to take the
testimony and the experiences of gay and lesbian Americans and
apply that to the particular circumstances at work.
In Colorado, that's an important dialogue that is ongoing
about to what extent the laws ought to be modified and changed
to prevent discrimination and violence and harassment against
gay and lesbian people. I support that legislative debate in
our State. I don't think it's appropriate for me to take a
personal view to the Federal bench, and I can commit to this
body that I'd be able to apply the discrimination laws
faithfully and carefully as a Tenth Circuit judge--
Senator Feingold. Well, Mr. Chairman, my time is up, but
let me just say that I certainly respect Mr. Tymkovich and wish
him well. But this process where we can't even get at sort of
the thought process of a nominee on something as simple and
important as how you relate discrimination against African-
Americans to the issue of discrimination against gay people, to
me, Mr. Chairman, this is the problem we are having, that we
are really not being given a chance to examine how these
individuals will simply go through their thought process as
judges, not whether there is a right answer or a wrong answer,
but how will they go through the judicial process and how will
they go through that thought process.
I think that is legitimate, and, again, I respect you and
certainly you have tried to respond to me. But it makes it
very, very difficult to analyze, especially in light of the
fact that this nominee wrote an article, an extensive article
about this very important subject, and all I am trying to do is
to get his thought process as it compared to another body of
law that he obviously thinks is valid.
So, with that, Mr. Chairman, I conclude and thank you and
thank Senator Kennedy.
Senator Sessions. Thank you. I know that what we really
expect out of a judge is not so much how they feel about the
issue but how they analyze the applicability or lack of
applicability of the law. So to that extent, their personal
views on political or social issues are a little less valid.
Senator Feingold. I would just add on that point, I wasn't
asking for his personal views. I was asking for his personal
view of the logical relationship as a matter of law between
discrimination against African-Americans and gays. It was not
literally his own personal views about those subjects.
Senator Sessions. Well, you certainly have a right to ask
that.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman, and I
share the concerns that have been expressed by Senator
Feingold. I was here when we passed those civil rights laws in
1964, and I can still hear the echoes of many of my colleagues
who said that--Norris Cotton, who was from the State of New
Hampshire, people have a right--if there is any freedom left in
this country, such employees will be congenial, promote good
feelings with business. And even former Senator Tower talked
about employers, employees, any freedom to speak or to act on
the basis of their religious convictions in terms of the issues
on discrimination on the basis of race. And there are other
Senators. I am not meaning to embarrass these other Senators,
but on March 20th, another of our colleagues had similar kinds
of statements. Another very distinguished Senator, this time
from Florida, surely no outsider should be able to tell an
owner or manager who he must hire or who he must promote. Then
even our colleague Senator Ervin, the bill undertakes to
control the thoughts of American people in respect to racial
matters.
So many of us who have been here over a long period of time
have heard similar kinds of concerns expressed, as you have, in
terms of the extension of the protections for gays and
lesbians. And as the principal author of ENDA, it brings a lot
of concern about where you are going to come out. We have come
very close to passing that law as an amendment to ensure that
there wouldn't be discrimination on the basis of sexual
orientation.
On that issue, it is about 60 percent, 65 percent of the
American people are basically for that, think ought to be
evaluated on who they are, not on the questions of their sexual
orientation. So that is why there is a lot of difficulty in
trying to understand the fear or unwillingness to say, well, if
the Congress is going to make this as a judgment and decision,
I don't have any problem or trouble in terms of enforcing that
if that is going to be the judgment that is made.
We have gone all through in the legislative considerations
about special rights, developed that debate and responded to
it. But I hear a lingering kind of unwillingness on your
position to entertain it. I heard the Chairman say that you
were one of the co-authors of the--I obviously respect your
position as a State employee, but we went on after that to talk
about your position in the Law Review article, which was one of
three people. But I don't see you disassociating yourself from
anything that was in it, even though it was written with
others. So we obviously interpret that to be your position as
well.
I wanted to ask you--and I want to just give you an
additional opportunity if there is anything you want to respond
to those kinds of concerns that we, or at least I have in terms
of considering, you know, the nominee and whether those that
would be able to come before you would feel that they are going
to get equal justice.
Mr. Tymkovich. Senator, thank you for that question. I
think it's an important question, and I believe that those who
know me the best in Colorado and with whom I've practiced who
endorse my nomination to the Tenth Circuit firmly believe on a
bipartisan basis that I can be an effective and fair judge on
the Tenth Circuit, if confirmed.
I might add a couple of things about my experience that I
think might bear on your question, really two cases I wanted to
mention. One is a case called Hill v. Colorado that was an
outgrowth of a legislative concern that we had in Colorado
regarding protests near health care facilities. And I think,
Senator Kennedy, you are aware of the Federal Access to Clinics
Act and either were the prime sponsor or major sponsor.
In Colorado, Congressman Degette, who was in the State
legislature at the time, helped pass that bill on a bipartisan
basis through a very evenly split Colorado Legislature, and
that provision was immediately challenged as unconstitutional.
At the time I was Solicitor General, like with Amendment 2, it
was an act of our legislature, act of our legislative branches,
and the office defended that provision. And we fortunately were
able to prevail in the State court and the Colorado Supreme
Court level.
That case was a very important Federal case. It was
appealed to the United States Supreme Court after I had left
the State government, so my successor as Solicitor General
ended up arguing that casein the United States Supreme Court.
And the United States Supreme Court, I think on a 7-2 vote,
ultimately upheld that case, upheld that law in a case called
Hill v. Colorado, which very importantly clarified the ability
to enact protective legislation in this area.
And so I want to point out, Senator, that, you know, part
of my obligation as Solicitor General was to not pick and
choose my cases but to defend as well as we could cases,
whether they came from the legislature or from the people, and
we thought we did an effective job on that.
The other issue I wanted to mention--
Senator Kennedy. What was your role in that case?
Mr. Tymkovich. I did not argue the case directly but was
involved in the briefing on the policy development of that
case. Again, in my role, I have substantial involvement--
limited involvement in a range of cases, but that certainly was
an important case at the time and had created some controversy
at the time because it was one of the few State laws that made
this legislative determination at the time.
The other issue I wanted to make that bear on this question
of impartiality and open justice is the work that the office
did while I was Solicitor General in taking on a very difficult
issue involving the Martin Luther King holiday in our State. At
the time I became Solicitor General, we had had racial protests
on the steps of our Capitol in Denver, where I know you have
been before, Senator, and it was creating a very divisive
situation because representatives of white supremacists and Ku
Klux Klan members were obtaining a parade permit to protest on
Martin Luther King Day and preventing the Martin Luther King
celebrants from having the opportunity to celebrate that
holiday on really the most visible forum in our State.
To help defuse racial tensions in our community, the
Attorney General helped Governor Romer and the State develop
regulations that allowed for a very careful process on when and
how you could use that open forum, and as a result of those
regulations, the racial conflict that we had dissipated, and in
the last 10 years we have not had any problems in that regard.
So when I have had the opportunity to work on issues and
cases--
Senator Kennedy. What was your role in that as well?
Mr. Tymkovich. It was also to assist the office in
developing those regulations and representing the State
agencies in that regard. It certainly was part of a larger
effort of other lawyers in the office that undertook that
representation.
Senator Kennedy. One of the things that we look at in the
confirmation process is judicial temperament, and an important
part of that assessment is whether you respect people's views
that differ from yours. It is okay to disagree with someone,
but we look at whether you respect others' legal views and
whether you label anyone who disagrees with you as having an
improper motive or being political. And it is especially
important to evaluate your respect for the Supreme Court cases
with which you disagree because we are assessing whether we can
take you at your word when you promise to follow both the
letter and the spirit of the decisions of the Court.
With that in mind, I have some questions about the
statements that you made in the Law Review article that
indicate a seeming lack of respect for the Supreme Court and
Justice Kennedy in particular.
You called the six-Justice majority opinion in Romer ``an
important case study of the Supreme Court's willingness to
block a disfavored political result, even to the point of
ignoring or disfiguring established precedent.'' You state the
opinion is ``cause for great uneasiness about the health of
self-government.''
That opinion was written by Justice Kennedy, hardly one of
the Court's more ideological members, whom you criticize by
name in your article. Can you explain what you meant in calling
Justice Kennedy's opinion political?
Mr. Tymkovich. Thank you, Senator, for the question. As
I've testified earlier, the purpose of the article was to
reflect the arguments that the State made in the appellate
courts and under applicable precedent, we believed that the
arguments that we had presented would have sustained a finding
of constitutionality. Obviously the Court disagreed and ruled
against us. And, again, we believe that the Court had to
address in a rather novel way the application of the precedent
that was argued below. And as I think I've testified in answers
to Mr. Chairman, certainly a number of academic criticisms of
the opinion and analyses of the opinion have reached a similar
conclusion. I think there's really a bipartisan and non-
ideological view about that.
And so my purpose in the article was to show the arguments
that we thought were presented under the existing case law that
the Court rejected--
Senator Kennedy. Well, I hear that and you have expressed
that opinion while I have been here, and I apologize for
missing the earlier hearing. Both the Chairman and I are on the
Armed Services Committee, and we have Mr. Tenet over there, the
head of the CIA. So I was unable to be here earlier. But I have
heard your comments just generally about obviously the holding.
But I am getting to the nature and the choice of words that are
being used, and there is one thing about differing with a
Supreme Court opinion, but it does seem to me that using the
words ``important case study of the Supreme Court's willingness
to block a disfavored political result, even to the point of
ignoring or disfiguring established precedent,'' and the
opinion is ``cause for great uneasiness about the health of
self-government.''
When you are using those kinds of words and stating it to
be political, it is more than just a general kind of difference
with the substance of the argument. I think that those
particular words are highly volatile, I would think, in terms
of the criticism both of Justice Kennedy and of the Court
itself.
Mr. Tymkovich. Senator Kennedy, I think I really pride
myself in my career of having the ability to, I think,
demonstrate the ability to work across party lines as a lawyer.
As you probably know, I represented a Democratic
administration. While I was Solicitor General, Governor Romer
was the chief executive of our State the entire time I was in
public service, and he has supported my candidacy. And I think
as a result of that experience I had an opportunity to work
with a lot of people across party lines to really do the best
possible job we could on behalf of the State of Colorado.
So I really believe that the bipartisan support of the
people that have worked with me in Colorado really speak
volumes about their view that I will have the ability to be a
good judge, to be open-minded and fair, and provide the
applicable civility and temperament to the position if I am
fortunate enough to be confirmed.
Senator Kennedy. Okay. Thank you, Mr. Chairman.
Senator Sessions. Thank you.
Mr. Tymkovich. Thank you, Senator.
Senator Sessions. On the question of the--
Senator Kennedy. I would say to the nominee, I just want to
congratulate you on the nomination. A number of people I have
known out there have also communicated with me their support
for your nomination.
Mr. Tymkovich. Thank you, Senator Kennedy.
Senator Sessions. Thank you, Senator Kennedy.
I notice that with regard to that brief, it looks like as
many as 15 States actively participated in support of the
position of Colorado, including Massachusetts was on one of the
briefs.
You wrote the ``uneasiness about self-government.'' Well, I
think that is a very nice lawyerly way to say it. I mean, that
is not a hot-head comment, that it creates ``uneasiness about
self-government.'' And I will tell you what I felt about it.
The people of Colorado passed an amendment, and the Supreme
Court struck it down. And they are unelected, and they denied
the people the right to have that statute that they passed
become law.
Now, let me ask you this--I won't go into that. We have got
another panel that is waiting.
Thank you very much, Mr. Tymkovich, for your testimony.
Mr. Tymkovich. Thank you, Mr. Chairman.
Senator Sessions. You have done an outstanding job, I
believe. You have an extraordinarily good record, and I would
ask this: As Solicitor General of Colorado--that was the
position you held?
Mr. Tymkovich. Yes, sir.
Senator Sessions. That is a position chosen by the Attorney
General to be in charge of appellate litigation for the State
of Colorado. Is that correct?
Mr. Tymkovich. That's correct, Senator.
Senator Sessions. State Supreme Court or U.S. Courts of
Appeals and the U.S. Supreme Court.
Mr. Tymkovich. Yes, sir.
Senator Sessions. And I would just say as a former Attorney
General, that reflects a sincere belief by Attorney General
Gale Norton, now Secretary of Interior, that you possess
extraordinary legal skills and an ability to articulate in the
appellate courts. And, of course, that is what you are seeking,
the position that you are seeking in the Court of Appeals. And
this background and experience as Solicitor General for the
State gave you an extraordinary ability and opportunity to be
active in a lot of appellate court cases. Most lawyers in
America would never have had that opportunity. So you come here
extremely well qualified, and I believe you should be
confirmed, and we thank you for your good testimony.
Mr. Tymkovich. Thank you, Mr. Chairman.
[The biographical information of Mr. Tymkovich follows.]
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Senator Sessions. We will take a 3-minute recess and get
ready for our next panel, and you can move on up and take your
seats.
[Recess 12:02 p.m. to 12:07 p.m.]
Senator Sessions. Ladies and gentlemen, if you would stand,
we will do the oath. Do we have everybody or are we missing--
no, we have everybody. If you would raise your right hand and
take this oath. Do you swear that the testimony you are about
to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Breen. I do.
Judge Steele. I do.
Mr. Varlan. I do.
Mr. Stanceu. I do.
Judge Horn. I do.
Senator Sessions. Please take your seats.
I congratulate you again on being nominated for one of the
most significant offices an American can have, to receive the
support of the President and your State Senators, and now you
are seeking the support of the United States Senate in the
confirmation process to be a Federal judge. That is a great,
great honor, and I know that from what we have learned from
your background that you are worthy of it. You have been
reviewed by the American Bar Association. First, of course, the
administration has reviewed and the Department of Justice has
reviewed your qualifications. The FBI has done a full-field
investigation and background check on your background, your
integrity and competence and ability and see if there are any
problems there. The American Bar Association has rated you
qualified for the position after doing the extensive work that
they do.
For those of you who may not know, the Bar Association
requires nominees to submit a large number, I think as many as
ten cases that you have litigated that are important, and the
nominee has to list all the attorneys that were involved in
that case, and the ABA goes and interviews them as well as the
judges who may have presided over the case. And so they do
intensive work. And then we at the Senate, through the staff
here, review the nominees. We receive letters of support, and
you have mostly gotten support for you for sure, and any
questions that arise, and then we have this public hearing and
you go forward.
The Senate is very busy now. We are at the last minutes of
an appropriation process. We also have Armed Services going
forward. We have the review of the Space Shuttle disaster going
on and debate on the floor continuing on the Estrada
nomination, and a number of members here are there. So that
would explain some of the absences that we might otherwise not
see today.
Let me start off with general principles. First let me ask
each of you if you would like to make an opening statement, and
I would be pleased if you would identify any family members or
friends that you have here.
Judge Breen, would you like to start?
STATEMENT OF J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TENNESSEE
Judge Breen. Thank you, Mr. Chairman. Let me first of all
thank you and the other Committee members for considering my
nomination on today's hearing. I would like to also, if I
could, publicly thank Senator Frist and Senator Alexander for
their support and kind words on my behalf.
If I might, I would like to introduce a lady that I know
quite well and who has traveled with me here. We are
celebrating our 30th anniversary this year. My wife, Linda, who
is seated here behind me, and she is certainly here in my
support.
I would also, if I might, although they weren't able to be
here, my two sons. One is Daniel in Memphis, working in
Memphis, Tennessee, and the other, Phillip, is in Orlando,
Florida. He is in school there, and certainly they are very
supportive of me as well.
With that, sir, I do not wish to make, other than that, an
opening statement at this time, sir. Thank you.
Senator Sessions. Thank you.
Judge Steele? I am glad to see your wonderful wife, Linda,
here and your family. Please introduce who you have.
STATEMENT OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF ALABAMA
Judge Steele. Thank you, Mr. Chairman. I am extremely
grateful and honored for this opportunity to participate in
this important constitutional process. I also would like to
publicly express my gratitude to you and to Senator Shelby, who
made the kind remarks on my behalf earlier, and also to
President Bush for nominating me to this position and having
confidence in my ability to serve as a district judge for the
Southern District of Alabama.
I am honored today to have many members of my family and
some friends here that I would like to introduce. First of all,
my wife, who is also my dance partner, my hiking partner, and
my golfing partner, and my best friend for the last 32 years,
Linda. Thank you.
My mother, Martha, who is a member of Tom Brokaw's greatest
generation of Americans, and I will tell you that she is a
person who loves this country almost as much as she loves her
family, which is considerable.
Senator Sessions. I enjoy seeing your mother at the Whistle
Stop Restaurant every now and then after church on Sunday.
Judge Steele. My son, Chris, who is here today. If you
would stand, Chris? He is the owner and operator of two of the
best, if not the best restaurants on the Gulf Coast and a very
hard-working restaurateur. We are very proud of him. Thank you,
Chris.
His wife, Rosemary, and his daughter, Madison, who is my
only granddaughter, are unable to attend. Rosemary is
anticipating delivering our second granddaughter in just a
matter of days, so Chris will be leaving here quite quickly
after the hearing today to attend to those responsibilities.
Thank you, Chris.
My son, Blake, former Eagle Scout, all-around good guy,
also involved in the restaurant business on the Gulf Coast. His
wife, Ranee, is here, and she is a very good student at one of
our local universities in Mobile, and we're very proud of
Ranee.
My daughter, Keri, who is a software application engineer
for a large corporation in New Orleans, and she has done quite
well with that particular profession. Thank you, Keri.
My brother, Bob, Major, United States Marine Corps,
retired. He's a former helicopter pilot for Presidents Reagan
and Bush. He's also the recipient of a Distinguished Flying
Cross for acts of bravery in Vietnam, and we're certainly proud
of my brother, Bob. Thank you.
His wife, Valerie. Valerie is engaged in the noble
profession of school teaching. She teaches first grade just
south of here in the Stafford, Virginia, area. Thank you,
Valerie.
Their son, Jimmy, who's a Lieutenant JG with the U.S. Coast
Guard. He's also a law student at American University here in
this area and doing quite well in law school.
His wife, Melissa, is also involved in the noble profession
of school teaching in the Falls Church area, around the D.C.
area.
I'm also honored today to have one of my former law clerks,
Joy Williams. I'm proud to have her today. She was a wonderful
law clerk for me and one of the nicest people you'll ever meet
anytime, anywhere. She informs me that she has just accepted a
position with the Office of General Counsel for the FBI here in
Washington, so we're really proud of Joy.
Also in attendance from Mobile is Dr. Floyd Windal, one of
our best friends, and we're certainly gratified to have him
with us here today.
And in attendance is Bill Wynne, chief of the United States
Probation Office, a good friend, and we're proud to have him
here today.
Senator Sessions. One of the great probation officers in
the history of the world.
Judge Steele. He is the best, let me tell you. And unable
to attend is my sister, Sandy Steele, who is a city clerk in
Fort Pierce, Florida, and my brother, Jerry Steele, who is a
Colonel, United States Marine Corps Reserve, also director of
the Boys and Girls Clubs in Mobile.
So we're proud of everyone, and I'm grateful today to be
able to introduce them to the committee. Thank you.
Senator Sessions. Thank you, Judge Steele. Very good.
Mr. Varlan?
STATEMENT OF THOMAS A. VARLAN, NOMINEE TO BE JUDGE FOR THE
EASTERN DISTRICT OF TENNESSEE
Mr. Varlan. Thank you, Mr. Chairman. I, too, want to thank
the Chair and the members of the Senate Judiciary Committee for
consideration of my nomination. I also want to thank Majority
Leader Senator Frist and Senator Alexander for their kind and
gracious comments concerning my nomination. As well, obviously,
I would like to thank the President for his submission of my
nomination to this body.
I have with me my wife and two of my four children I would
like to introduce. My wife, Danni, who's been so supportive of
my professional efforts, in particular this particular quest.
My oldest daughter, Georgia, who is a sophomore in high school
in Knoxvlile. My daughter, Susanna, who's in eighth grade, a
middle school student.
And also with us today is one of our very good friends, Amy
Hartman. I'd ask her to stand. We both lived--our families both
lived in Atlanta, Georgia, in Senator Chambliss' home State,
for a time in the 1980's, and they moved to the Washington area
about the same time we moved back to Tennessee, and we're glad
she's here today.
In absentia, I would also like to mention my two sons--my
12-year-old son, Alex, and my 9-year-old son, Paul--as well as
my father, Alexander Varlan, who are back in Knoxville wishing
us well.
So, again, thank you, Mr. Chairman, for the opportunity to
be here today.
Senator Sessions. Thank you.
Mr. Stanceu?
STATEMENT OF TIMOTHY C. STANCEU, NOMINEE TO BE JUDGE OF THE
UNITED STATES COURT OF INTERNATIONAL TRADE
Mr. Stanceu. Thank you very much, Mr. Chairman. The
President's nomination of me to the U.S. Court of International
Trade has been the greatest honor of my career, and I am very
grateful for the opportunity to be here today before the
committee. I am also, of course, very grateful to President
Bush for my nomination.
I'm also very proud to be joined here today by members of
my family. First of all, let me introduce my wife, Mary
Incontro. Mary is in public service. She is an official with
the Department of Justice and now working with the Federal
Bureau of Investigation.
My mother, Mitzi Mewhinney, is here, and her husband and my
stepfather, Richard Mewhinney. They have come all the way from
Florida to be with us here today, and I'm very pleased to say
that, and also very, very pleased that my sister, Patricia
Hallissy, has also traveled from Florida to be with us here
today.
And I sincerely thank you, Mr. Chairman.
Senator Sessions. Thank you.
Judge Horn?
STATEMENT OF MARIAN BLANK HORN, NOMINEE TO BE JUDGE OF THE
UNITED STATES COURT OF FEDERAL CLAIMS
Judge Horn. Thank you, Mr. Chairman, and I want to thank
you and Chairman Hatch for allowing me the opportunity to
appear here this afternoon, and I want to thank the President
for placing his trust in me and re-nominating me to another
term on the Court of Federal Claims. I've been there for 16-
plus years and enjoyed every day of that opportunity, and I
hope to do another 15 years plus with the same kind of
dedication that I think I've given to the job in the past.
I do want to take the opportunity to introduce my husband
who is here with me today, Robert Horn, a partner at Patton
Boggs firm here in Washington, who is known to many of the
members of this committee, and also my daughter, Carrie Horn,
who is an associate at the law firm of Hunton and Williams here
in D.C. Her two sisters, her twin sister, Rebecca, could not be
with us here today. She's a fourth-year medical student, and
they don't let her out of the hospital. And my other daughter
is a holder of an MBA degree and works as a consultant in New
York, in Senator Schumer's State, in which I was born and
raised. And I want to thank you all and hope that I could
answer any questions, and I appreciate the opportunity.
Senator Sessions. Very good. Well, you know, the Court of
Claims and the International Court of Trade, and these three
are for Federal district judgeships, I guess with regard to all
of them, I know with the Federal judges, that management is a
key requirement, that this is not a retirement job, that the
modern challenges of a Federal judge are enormous. The
caseloads are heavy. Lawyers have a right to expect that when
they have submitted briefs properly and that sort of thing that
the court will rule promptly. Delays cost parties extra money.
They deny justice and that sort of thing.
I remember when Judge Steele was Chief Assistant United
States Attorney, I was District Attorney there for Chris
Galanos in Mobile. He was a good administrator, and I remember
we had some actually not very well thought out procedures in
Federal court dealing with the processing of cases. Actually, I
had thought for some time it was something that should be
changed, and several years later, when Judge Steele was
appointed magistrate judge, the court asked him to study the
case processing in the court and to develop a plan to improve
that.
Judge Steele, it was a stunning improvement. Everybody that
practiced regularly in the Federal court in Mobile appreciated
the changes, and you orchestrated that.
I will ask you, based on your experience as a magistrate
judge and as an observer of Federal judges, do you feel a
burden to move cases in a fair and prompt way? And is
management something that we need to look for in our nominees?
Judge Steele. Thank you, Mr. Chairman, for the opportunity
to answer that question. Yes, sir, I do think it's something--
management is a skill that is absolutely required of any
nominee to the Federal district bench. Not only do you have to
manage your own caseload, but you have to be conscious of the
other judges' caseloads as well and offer to help when needed
to move the cases fairly and efficiently through the court. And
I think we're pretty successful at doing that in the Southern
District of Alabama. We've had occasions where the caseload was
just so excessive that it was difficult to do so. But I come
from a court that has just a history of having judges who have
great relationships with each other, who work with a sense of
purpose and a goal to do the good--do justice for the good of
the people. And they stay focused, and I think that's the
important part to a case management plan, is to have a plan
that allows the judges to focus on the purpose of the court,
and that is to do justice effectively and efficiently.
Senator Sessions. So the plan shouldn't drive the system.
The plan should help you achieve justice.
Judge Steele. Yes, sir.
Senator Sessions. I think that is a good observation.
Judge Breen, do you agree with that? Do you have any
thoughts?
Judge Breen. Yes, Mr. Chairman. Thank you again for the
opportunity to answer the question. Rule 1 of the Federal Rules
of Civil Procedure in civil cases obviously calls for us to
have a fast, certainly efficient disposition of our cases, and
I think that certainly applies equally in the criminal area.
Obviously we have the Speedy Trial Act, so those cases are
moved--certainly in your experience, I'm sure, as U.S.
Attorney, to move those cases.
In the Memphis area, which is one of the locations I sit
now presently, we have a rotation docket that allows and
assists us in moving the criminal cases because all the judges
are participatory in that process of able to move those.
In the civil area, I think it certainly is a collaborative
effort in the sense that it takes the judge's staff or the
attorneys, the litigants, to set up deadlines and set up
certain trial dates so that the lawyers will know, the
litigants will know when their day in court is going to occur.
In our area, we are trying to move those cases somewhere
between 12 and 14 months from the date of filing. One of the
aspects that certainly I've been involved in, and I'm sure
other magistrate judges have, is in the area of ADR. And one of
the things that is usually set in one of the scheduling orders
is the use of ADR. And I think--
Senator Sessions. That is alternative dispute resolution.
Judge Breen. Yes, sir, alternative dispute resolution,
mediation, settlement conferences, things of that nature. And I
think along with Judge Steele, I'm sure he's been involved in a
number of them. But many of our cases are resolved in that
area. I don't think it's--
Senator Sessions. Is that a factor, the use of that, in the
decline in the number of cases actually going to trial in
Federal court?
Judge Breen. I think it is. I think, again, I don't think
it's a forced resolution. It's a matter that, at least in my
experience, is one that the lawyers and I think the litigants
are becoming more accustomed to and are willing to involve
themselves in, because they realize that, first of all, it's
less expensive. I always tell them it's less traumatic than
having to go through a full-blown trial, and certainly it's
less time-consuming because obviously the matter can be
resolved at an earlier point in the life of a case.
And so all of those factors that I've just described, along
with what Judge Steele has said, I think is the role of our
court, the role of the magistrate judges, the district judges,
to collaborate with the litigants and with the lawyers to have
a speedy and efficient disposition of cases.
Senator Sessions. Well said.
Mr. Varlan, do you have any comments? Have you given any
thought to that?
Mr. Varlan. I have, Mr. Chairman, and thank you for the
opportunity to respond. Certainly, going back to your original
question or premise, certainly management of the caseload is a
key consideration for district court judges as well as
magistrate judges. I have not had the perspective of being a
magistrate judge as Judge Steele and Judge Breen have been. But
from the standpoint of a practicing attorney, it is a key
consideration.
In discussions with various attorneys, as my nomination was
being considered, over and over again I hear from attorneys,
you know, what do they want out of district court judges? They
want to be treated fairly, they want to be treated even-
handedly, and they want their cases to move in a fair and
efficient manner, which somewhat almost similarly echoes the
words of the Chair at the beginning of your question.
And from my perspective, it takes hard work. It takes
managing your docket. It takes adhering to deadlines, rendering
prompt decisions. Certainly alternative dispute resolution,
ADR, is a very useful tool, as Judge Breen mentioned. In the
Eastern District we have a voluntary ADR program where many
attorneys sign up to serve on a list of approved mediators. As
a practicing attorney, I've had several cases in Federal court
that we have utilized that mediation program, and although I
don't have statistics for the Chair, we tend to find that many
of those cases that are mediated are settled. They may have
been settled without mediation, but certainly mediation and ADR
has been a useful, an extremely useful tool with respect to
cases pending in Federal court, as well as State court for that
matter.
Senator Sessions. With regard to precedent--and I will ask
all of you this--do you recognize that even though you have
been given, for three of you lifetime appointments, long
appointments for the others, that you have a solemn personal
duty to restrain your personal impulses and to be a neutral
arbiter of the law and the facts as fairly have been found by
you as you make your opinions and that you will be faithful to
the binding authorities in defining the laws and statutes?
Judge Breen, just briefly, would you comment on that?
Judge Breen. Yes, thank you, Mr. Chairman. Certainly the
issue of precedent, of stare decisis, is an extremely important
concept in our jurisprudence. I think it's the backbone of our
system. Certainly lawyers and litigants both look for some
predictability, something that they know that--stability in the
sense that they can go into court and have some basis or some
idea of what precedent has been involved here. And I think we
as judges have a duty, we are duty-bound certainly by oath, to
look at that precedent, certainly from the Supreme Court
standpoint and then from our own circuit, in my case,
obviously, the Sixth Circuit. But certainly that is, again, a
bedrock, I think, of what we as judges must look to and utilize
whenever we are ruling on matters in our courts.
Senator Sessions. Judge Steele?
Judge Steele. Yes, sir. Certainly it's not the role of a
Federal district judge or a Federal judge of any level to
legislate. And a judge is obligated by the rule of law to
follow the precedent that's available to him in the circuit
that he's in, or if there is Supreme Court precedent, to follow
that.
I'm reminded of the language in the--I think it's a recent
case, the United States Supreme Court in Hatter, in which the
Court admonished the lower court that you will follow our law
whether you agree with it or not, and you will follow it until
we tell you that it's different.
Well, that admonishment, I think, is well taken and--
Senator Sessions. Well, that is important because one party
has had to appeal because the court is not ruling correctly,
they had to go to all that expense and all that delay through a
system that really wasn't necessary if they had followed the
law to begin with. There are a lot of reasons why lower courts
should follow the superior courts.
Judge Steele. I agree with that. I think I've selected
somewhere in the neighborhood of 200 juries in my capacity as a
magistrate judge, maybe 250 juries, and each time I charge them
that you must follow the law whether you agree with it or not.
And I think that same charge applies to me. I have to follow
the law whether I agree with it or not.
Senator Sessions. And that is the standard charge given to
all the juries.
Judge Steele. Right.
Senator Sessions. Mr. Varlan?
Mr. Varlan. Thank you, Mr. Chairman. I, too, agree that the
principle of stare decisis and adherence to precedent is
extremely important to our judicial system and our rule of law.
As the Chair stated, our role as judges is to act as a neutral
arbiter of the facts and the law, and that principle, that
bedrock principle, provides the predictability to the lower
court in terms of following the Sixth Circuit, in my case, as
in Judge Breen's, and the U.S. Supreme Court, as well as some
measure of predictability to the litigants and the attorneys
and parties that come before us.
Senator Sessions. Mr. Stanceu?
Mr. Stanceu. Thank you, Mr. Chairman. I would agree with
the views that have been expressed here, and I would add that I
would view a judge's most solemn duties are to uphold the rule
of law and to do impartially and fairly. Judicial activism--and
those are two words that I don't believe go together. Judicial
activism is not being impartial. Activism is for the parties
and their attorneys who must zealously represent them within
the bounds of the law. I would see the judge's duty as to
uphold the rule of law and achieve fairness.
Senator Sessions. The light is fading on us.
[Laughter.]
Mr. Stanceu. And with the specific respect to the U.S.
Court of International Trade, that would mean loyalty and
fidelity to the decisions of the Supreme Court and, of course,
to the U.S. Court of Appeals for the Federal Circuit, in which
circuit the U.S. Court of International Trade is located.
Senator Sessions. What special challenges do you think you
will face as a Court of Trade judge?
Mr. Stanceu. I would say that in fulfilling the
responsibilities of a judge of the Court of International
Trade, if I am fortunate to be confirmed, one thing we must
always guard against is to make sure that all parties have a
full and fair opportunity to be heard. I want to make a couple
of points on that.
First, you mentioned--the excellent remarks that you had
mentioned, Mr. Chairman, about managing the docket.
Wholeheartedly I agree, and I believe that that responsibility
will require continued diligence and dedication.
I can commit to this Committee and to the bar of the Court
of International Trade that I will do my utmost to move the
docket along, but never at the expense of fairness or giving
every party the opportunity to be heard. For example, I do not
believe it is proper for judges to pressure parties into
settlements as a means of managing the docket. The Congress has
created the Court of International Trade under its Article III
powers under the Constitution to give importers, domestic
parties, and other interested parties the right to be heard in
front of this court. And if it is their desire to go to trial,
then that right must be upheld.
Thank you.
Senator Sessions. Judge Horn, tell me about your experience
and what do you look forward to next.
Judge Horn. Well, I can honestly say I've had 16 marvelous
years on the court.
Senator Sessions. Is that the term?
Judge Horn. The term is 15. I'm now in senior status until
hopefully the Committee sees fit to have the re-nomination
confirmed. The term is 15 years in and of itself.
I think that the beauty of the caseload on our court is the
complexity of many of the cases, which is why I enjoy the
challenge. We, of course, have an entirely civil docket, and we
get cases in a variety of areas, many of which are multi-count,
large-dollar volume, and pretty complex, which is why it is
challenging.
I believe just in answer to the questions that have been
asked that case management is obviously an important part of
any judge's responsibility, and in a sense time is money,
particularly since we have a civil docket and our
responsibility is to make sure to get to the just, fair, and
proper answer in as expeditious manner as possible.
With respect to following case precedent, I think it's the
sworn duty of any judge to follow case precedent. I try to do
that and have tried to do that in all of the cases that I've
decided, including some in which--the few that the Court of
Appeals for the Federal Circuit has seen fit to overturn, which
has been on an average of about one a year in about 16 years.
So, so far, we've done okay.
Senator Sessions. Let me ask you, do you think judges
sometimes can become too timid in honestly evaluating the law
and facts and worry about reversals? Is that something you
should--how should you evaluate calling it and worrying about
reversals?
Judge Horn. Well, Mr. Chairman, I welcome that question
because I preached for a long time--
Senator Sessions. Well, you have taught. I know you taught
at George Washington and American University Schools of Law, so
I am sure you have thought about it.
Judge Horn. I have thought about it, and I honestly believe
that that is something a judge should never think about. You
are there to do the best you possibly can with the case
precedent, with the facts that come before you in a particular
case, and I think it would be inappropriate for a judge,
frankly, to worry about whether or not he or she will be
reversed.
It happens on occasion. Reasonable men and women disagree.
But that should never be the driving force.
Senator Sessions. Well, you three Federal district judge
nominees, I will ask you this. I hope Judge Steele hasn't
forgotten his brief tenure as an Assistant United States
Attorneys, 2 years or so. But my question is: Will you give the
prosecutors the same fidelity to fair rulings that you do to
the defendant? As Judge Horn suggested, you really need--I
think the law requires you to call the shots fairly. It is a
fact, however, that a lot of people in America do not know that
if you rule against a prosecutor, they can't appeal. If you
rule against a defendant, they might. So I have observed--and
there have been criticisms of judges tending to rule for the
defendant just so they might--there will be no chance of being
reversed on appeal. Will you be faithful and give the
prosecutor a fair chance, the three of you? Yes or no, or any
brief comment you might have.
Judge Breen. Mr. Chairman, again, I have been on the bench
now about 12 years, and I think that there have been
opportunities and occasions when I have ruled against the
government. There are many opportunities that I have ruled in
their favor. Certainly I pride myself on being impartial and
fair and willing to listen to all parties, whether they're the
government, whether they're private individuals, corporations,
or whatever persons, you know, certainly who are not even
represented, are representing themselves. So I feel that I can
unqualifiedly give the government and any other litigant who
comes into my court a fair hearing and certainly the decision I
make is not based upon who it is or what their status in life
is.
Senator Sessions. Judge Steele?
Judge Steele. Yes, sir, I have a similar experience with 13
years as United States magistrate judge. I have had many
opportunities to rule for and against the government and for
and against the defendants in cases, and each time my rulings
were based on the facts and the law as they were presented to
me in my best judgment of what the result ought to be.
Senator Sessions. Mr. Varlan?
Mr. Varlan. Thank you, Mr. Chairman, and I have--in my
legal career, approximately half has been public from a civil
standpoint in terms of being city attorney and the other half
in private practice. And I believe and I know that I can be
fair and impartial to those who appear before me, and that
would obviously include the government and prosecutors as well
as defendants and other litigants.
Senator Sessions. Well, I will just say to all of you
congratulations, you have cleared one more hurdle, I suppose
you can call it, in this weird process. I am not sure there is
any real justice in it, but it is a process that we go through
and historically has resulted in good judges going on the
bench. And I don't think it makes any difference if you are
Senator Leahy's campaign Chairman or a former Assistant United
States Attorney that you know. What we want is the best judges
that we can get who, when they put that robe on, will try to
rule right and fair, following the law and following the facts.
We will keep the record open for one week to allow follow-
up questions. The questions are due by 5:00 p.m. next
Wednesday.
[The biographical information of Judge Breen, Judge Steele,
Mr. Varlan, Mr. Stanceu, and Judge Horn follow.]
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Senator Sessions. If there are no other matters, we will
stand adjourned.
[Whereupon, at 12:38 p.m., the Committee was adjourned.]
[Additional material is being retained in the Committee
files.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF CORMAC J. CARNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE
CENTRAL DISTRICT OF CALIFORNIA; JAMES V. SELNA, NOMINEE TO BE DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; VICTOR J. WOLSKI, NOMINEE
TO BE JUDGE FOR THE UNITED STATES COURT OF FEDERAL CLAIMS; THERESA
LAZAR SPRINGMANN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF INDIANA; PHILIP P. SIMON, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF INDIANA; MARY ELLEN COSTER WILLIAMS, NOMINEE
TO BE JUDGE FOR THE UNITED STATES COURT OF FEDERAL CLAIMS; RICARDO H.
HINOJOSA, NOMINEE TO BE SENTENCING COMMISSIONER; AND MICHAEL E.
HOROWITZ, NOMINEE TO BE SENTENCING COMMISSIONER
----------
WEDNESDAY, MARCH 12, 2003
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:05 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Saxby
Chambliss, presiding.
Present: Senators Chambliss, Feinstein, Cornyn, Feingold,
and Schumer.
OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM
THE STATE OF GEORGIA
Senator Chambliss. The Committee will come to order. It is
my pleasure to welcome to the Committee this afternoon eight
outstanding nominees. This is the first time I have had the
privilege of chairing a hearing before the Senate Judiciary
Committee and I, for one, am pleased that this is a
confirmation hearing.
One of the most important responsibilities that we have as
Senators is to exercise our constitutional duty of advice and
consent. As yesterday's floor debate illustrates, there is
substantial disagreement among us about what precisely the
Constitution demands in the fulfillment of that duty, but I
have no doubt that each and every member of the United States
Senate takes that responsibility just as seriously as I do.
This is why it is a particular honor for me to be here today
chairing this hearing.
Whether by design or by default, it seems that this hearing
is structured in pairs. We have before us two nominees for the
Central District of California, two for the Northern District
of Indiana, two for the U.S. Court of Federal Claims, and two
for the U.S. Sentencing Commission.
I know that for our first panel of witnesses, we will have
many things to say about the superb qualification of the
nominees, so I will keep my remarks brief.
Let me first say a word or two about our first four
District Court nominees, three of whom are sitting judges. Our
nominees for the Central District of California are Cormac
Carney and James Selna, who are both Orange County Superior
Court judges. Judge Carney and Judge Selna have another
experience in common. They were both partners in the
prestigious law firm of O'Melveny and Myers before entering
judicial service. While their confirmation will bring a wealth
of experience to the Federal bench, it will undoubtedly inflict
a loss upon the State bench.
The nominees for the Northern District of Indiana are
Philip Simon and Theresa Springmann. Mr. Simon has already
spent the bulk of his career in public service as a Federal
prosecutor. Given the high volume of criminal cases our Federal
courts handle, this experience will no doubt serve him well.
Judge Springmann began her legal career as a law clerk for
a judge on the very court she now seeks to join. She has
extensive experience on both sides of the bench, first as a
lawyer in private practice, and then as a Federal magistrate
judge.
In addition to our four district nominees, we will consider
two more judicial nominees, these for the Court of Claims. This
court hears most of the high-dollar lawsuits against the
Federal Government. Our first Court of Claims nominee is Mary
Ellen Coster Williams, who has been an Administrative Judge on
the General Services Administration Board of Contract Appeals
since 1989. Prior to that, she worked for 8 years in private
practice and for more than 3 years as an Assistant United
States Attorney, where she gained valuable experience handling
matters involving government contracts, employment law, torts,
and commercial litigation.
Like Judge Williams, Victor Wolski comes to us with
excellent qualifications. He has worked as a law clerk for a
Federal district judge and as an attorney in both private
practice and public service. His career includes a stint as a
Capitol Hill staffer, and I am told that many of his fellow
staffers are here today in support of his nomination. I am
confident that he will make a fine addition to the Court of
Claims.
Our final panel of the day will consist of two nominees for
the Sentencing Commission, which sets sentencing practices and
policies for the Federal courts. Judge Ricardo Hinojosa has
served as Federal District Court Judge for 20 years and has
presided over hundreds of sentencing proceedings. This is an
important perspective to bring to the Commission.
Michael Horowitz served in the Criminal Division of the
Department of Justice in both the Clinton and President Bush
administrations, and prior to that as a Federal prosecutor in
Manhattan. He already has familiarity with the operation of the
Sentencing Commission since he presently serves as a member of
its advisory group.
This is obviously an incredibly talented group of nominees
before us today. I commend President Bush for nominating them
and I look forward to hearing their testimony.
Our first panel is a very distinguished group of Senators,
and you know since they are all colleagues of mine, I would
love to put them all under oath and ask them a few questions
about some issues that I would like to know about--
[Laughter.]
Senator Chambliss. --but we always exempt this panel from
being put under oath.
Senator Feinstein, I know, has another commitment and we
have agreed that she will go first, so Senator Feinstein, we
look forward to hearing from you.
PRESENTATION OF JAMES V. SELNA AND CORMAC J. CARNEY, NOMINEES
TO BE DISTRICT JUDGES FOR THE CENTRAL DISTRICT OF CALIFORNIA BY
HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF
CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. In
particular, I am here to make a few comments about two
California judges, both of them to be District Court Judges for
the Central District of California, and in no particular order,
the first one I will introduce is Judge Selna.
Judge Selna passed through the screening committee, as did
the second judge, Judge Carney, with a unanimous six-zero vote.
The Committee gave him a rating of ``exceptionally well
qualified.'' As you know, Mr. Chairman, the Committee is
composed of three Republicans and three Democrats, so they have
to agree, and all six did agree on this.
Judge Selna is joined today by his wife Harriet and
daughter Christine. He has impressive academic and legal
credentials. He graduated Phi Beta Kappa from my alma mater,
Stanford, in 1967, where he was Editor-in-Chief of the Stanford
Daily. Now, this is the only thing that makes me question his
credentials--
[Laughter.]
Senator Feinstein. --because when I went to Stanford, the
Daily was a very controversial Daily, and now I assume under
his Editor-in-Chief, it is much more mild than it was in my
days.
Three years later, he obtained his law degree at Stanford,
earning the Order of the Coif. He also received the Urban
Sontheimer Prize for graduating second in his class. After a
brief stint in the military, Judge Selna joined the Los Angeles
law firm of O'Melveny and Myers, where he has practiced law for
25 years. He specialized in litigating complex commercial
disputes, typically involving high-tech issues and companies.
He also developed an expertise in antitrust and trade
regulation, as well as trade secret law.
After a highly successful career in private practice, he
was appointed to the Superior Court in 1998 and he has served
with distinction on that bench and enjoys great respect from
the trial bar.
I would put the rest of my statement, if I may, not to take
more time on this distinguished individual, in the record, and
will go quickly to Judge Carney.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Senator Feinstein. Judge Carney is joined here today by his
wife, Mary Beth, his son, Thomas, age 13, his son, John, a
fifth grader, and his daughter, Claire, age nine. His father
and his mother and his sister are here today, as well. Perhaps
you could all stand and we will welcome you, since you are such
a nice large family. We are delighted to have you here today.
[Applause.]
Senator Feinstein. Now, this judge also comes before this
Committee with impressive credentials. He received his
undergraduate degree from UCLA Cum Laude in 1984. While at
UCLA, he played varsity football and earned all-American
recognition. After playing 1 year of professional football in
the United States Football League, Judge Carney attended
Harvard Law School and obtained his law degree in 1987. An all-
American from Harvard--that is wonderful.
Judge Carney spent his entire legal career in the private
sector until he was appointed to the Superior Court in 2001.
From 1987 to 1991, Judge Carney worked as an associate at the
firm of Latham and Watkins, where he practiced business
litigation on behalf of Fortune 500 companies. He subsequently
moved into another prestigious Los Angeles firm, O'Melveny and
Myers, and became a partner in the firm. He remained there
until his appointment to the Superior Court.
Again, I have a list of very qualified people, appellate
justices recommending him very strongly, and I will put those
in the record, Mr. Chairman.
I thank you and I thank my colleagues for the courtesy. I
serve on five committees and 12 subcommittees and I have found
that it is a full deck of cards, so thank you very much.
Senator Chambliss. Thank you, and on all five of those
committees, she is a good one, too.
Senator Feinstein. Thank you.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Senator Chambliss. Senator Lugar?
PRESENTATION OF PHILIP P. SIMON AND THERESA LAZAR SPRINGMANN,
NOMINEES TO BE DISTRICT JUDGES FOR THE NORTHERN DISTRICT OF
INDIANA BY HON. RICHARD G. LUGAR, A U.S. SENATOR FROM THE STATE
OF INDIANA
Senator Lugar. Thank you very much.
Senator Chambliss. We are pleased to have you here.
Senator Lugar. I appreciate, Mr. Chairman, your chairing
this meeting and it is a real pleasure to present to the Senate
Judiciary Committee two outstanding District Court nominees
from the Northern District of Indiana. I would like to thank
especially Chairman Orrin Hatch and Ranking Member Pat Leahy
for holding this hearing and moving so quickly on these
nominations.
Early last year, Judge William Lee and Judge James Moody
informed me of their decisions to assume senior status after
distinguished careers of public service. Both of these
individuals are remarkable leaders on the Federal bench and I
applaud their leadership for Indiana and to the legal
profession.
Immediately upon hearing of these decisions, I notified the
White House and was asked by the President to help find the
most qualified candidates to fill these two important positions
in Hammond and Fort Wayne, Indiana. I took this role very
seriously and selected the candidates who would best serve the
Northern District of Indiana, and after sharing these
selections with my friend and colleague, Senator Evan Bayh, I
submitted the names and applications of three outstanding
candidates to the White House for their consideration. The
President recently selected Assistant United States Attorney
Philip Simon and United States Magistrate Theresa Springmann.
Philip Simon is joined here today by his wife, Jane; his
children, Claire, Matthew, and Sarah; his parents, Robert and
Bonnie Simon; and his mother-in-law, Sally Mayes. I am very
pleased they were able to come to today's hearing and I would
like to recognize them if they would stand. Thank you.
[Applause.]
Senator Lugar. Philip Simon has a remarkable record as an
Assistant United States Attorney. As Chief of the Criminal
Division, he is responsible for overseeing all criminal
prosecutions in the Northern District of Indiana. He has
supervised and participated in prosecutions involving large-
scale drug distribution rings, illegal firearms trafficking,
white collar fraud cases, environmental crime, and mob-related
racketeering cases. In addition, he is in charge of a public
corruption task force in Lake County, Indiana.
Philip has been the recipient of a number of awards and
commendations. In 1995, the Mutual Insurance Companies of
Indiana presented the Sherlock Award to Philip for his work to
combat insurance fraud. In 1999, Philip was given the
Director's Award by Janet Reno, the highest award given to an
Assistant United States Attorney by the Justice Department.
Aside from his outstanding public service, he is a
dedicated community leader with an interest in assisting
children and families with autism.
Judge Theresa Springmann is joined here today by her
husband, David; her two sons, Gus and Tony; and by her mother,
Mary Lazar. I would like to recognize their appearance here
today and ask them to stand for your recognition.
[Applause.]
Senator Lugar. Theresa was the first woman to be made
partner at Spangler, Jennings, and Dougherty, the largest law
firm in Northwest Indiana. She followed up this distinction by
becoming the first woman judicial officer in the Northern
District of Indiana. Judge Springmann has served as United
States Magistrate Judge since March of 1995, where she has
presided over 30 civil jury trials, ten civil and criminal
bench trials, and conducted over 300 settlement conferences for
the District Court.
She has received a number of high performance ratings
throughout her tenure as a magistrate judge, including the
``AV'' rating from Martindale-Hubbell and the highest judicial
rating from the Lake County Bar Association. Like Philip Simon,
she is involved in a number of community activities and civic
organizations.
I want to thank again you, Mr. Chairman, for conducting the
hearing, the Chairman and Ranking Member for these
opportunities to present these two outstanding nominees to the
committee. I believe they will demonstrate remarkable
leadership in Northern Indiana and will appropriately hold and
defend our laws under the Constitution. I thank the chair.
Senator Chambliss. Thank you, Mr. Chairman.
We are also pleased to have your colleague, Senator Evan
Bayh, here with us. Senator Bayh, we look forward to hearing
from you.
PRESENTATION OF PHILIP P. SIMON AND THERESE LAZAR SPRINGMANN,
NOMINEES TO BE DISTRICT JUDGES FOR THE NORTHERN DISTRICT OF
INDIANA BY HON. EVAN BAYH, A U.S. SENATOR FROM THE STATE OF
INDIANA
Senator Bayh. Thank you very much, Mr. Chairman. I, too,
would like to thank you and your colleagues on the Committee
for moving sos expeditiously with regard to these nominees and
I hope you will share our gratitude with Chairman Hatch and
Ranking Member Leahy for your quick work in this regard. We are
very grateful.
I would also like to thank my friend and colleague, Senator
Lugar. He has been, as always, the embodiment of comity and
reason during this process. As he described, he established a
procedure early on for narrowing the number of applicants down
to a final number. He called me into his office, personally
reviewed the qualifications with me before forwarding all of
the names to the White House, and so I would just like to say,
Mr. Chairman, while the recommendations to the President were
his, I felt fully consulted throughout this process, and for
that, I am most grateful to Senator Lugar.
I am pleased, Mr. Chairman, to lend my wholehearted and
unqualified support to these nominees. Theresa Springmann and
Philip Simon will be outstanding jurists in the finest
tradition of our Federal judiciary. Both have outstanding
academic credentials, having graduated from fine Indiana legal
institutions. Both have extensive legal and public service
backgrounds, one first as a clerk in the Federal courts and now
as a U.S. Magistrate, the other as a longtime Federal
prosecutor with an exemplary record. Both have been rated
highly qualified by the American Bar Association.
So, Mr. Chairman, it is without reservation and with a full
heart that I support these nominees. I thank the Committee for
your indulgence, and again my colleague, Senator Lugar, for his
courtesy.
Senator Chambliss. We thank you very much for being here
and we look forward to hearing from these nominees.
Our dear friend and my Committee Chairman on the Armed
Services Committee, Senator Warner. We are pleased to have you
with us today and look forward to hearing from you.
PRESENTATION OF VICTOR J. WOLSKI, NOMINEE TO BE JUDGE FOR THE
UNITED STATES COURT OF FEDERAL CLAIMS BY HON. JOHN W. WARNER, A
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you very much, Mr. Chairman. It is a
pleasure to see you in the chair there, presiding. I have got
to keep an eye on you in my committee. You are so enthusiastic,
you might try and bump me out one of these days.
[Laughter.]
Senator Warner. Mr. Chairman and members of the committee,
as I listened to my colleagues here and the summary by the
distinguished Chairman of the nominees today, I thought how
fortunate we are as citizens of this great nation to have a
President who has very, very carefully gone into the selection
process and made these splendid selections.
My dear friend and co-equal partner here in the Senate,
Senator Allen, and I have the privilege today of introducing
Victor Wolski for nomination as a judge on the United States
Court of Federal Claims. I would ask, Mr. Chairman, that my
entire statement be placed in the record and Senator Allen and
I are going to share on the distinguished background of this
individual in our introduction.
Senator Chambliss. Certainly, we will do that.
Senator Warner. As you may know, the Federal Court of
Claims is an Article I court that is authorized to hear
primarily money claims founded upon the Constitution, Federal
statutes, executive regulations, or contracts with the United
States. Twenty-five percent of the cases before this court
involve complex tax issues. The judges on this court serve for
a term of 15 years. In my view, Mr. Wolski's background makes
him well qualified to be a member of this specialized court. He
has had extensive training in a broad range of areas and most
particularly the emphasis on taxation.
He graduated from the University of Virginia, where my
distinguished colleague and I were privileged to graduate, and
then went on to serve as a Federal law clerk for a U.S.
District judge sitting in California. Subsequent to his
clerkship, Mr. Wolski worked for 5 years as a litigator for the
nonprofit Pacific Legal Foundation.
He then came to Capitol Hill, where he served for 3 years
as tax counsel for Senator Connie Mack. I was privileged to
serve throughout the tenure of Senator Mack here in the Senate
and few attained the recognition and the respect on both sides
of the aisle as did our dear friend Senator Mack, who is still
very active. I saw him just the other day. But his heart is
still here in the Senate, and for this fine man to have been
selected by that outstanding member of the United States Senate
says a lot about Mr. Wolski's credentials.
After leaving Senator Mack's office, Mr. Wolski joined the
Washington, D.C. law firm of Cooper and Kirk and he currently
works at that firm, practicing law in a number of diverse areas
including consitutional law, land use regulations, and tax law.
Clearly, Mr. Chairman and members of the committee, he is
eminently qualified and I heartily give my unqualified
endorsement to this distinguished nominee.
Senator Chambliss. Thank you very much.
Senator Chambliss. We are very pleased that you brought
along your sidekick and my good friend, Senator George Allen.
Senator Warner. Oh, yes.
Senator Chambliss. Senator Allen, we are glad you are here
and look forward to hearing from you.
Senator Warner. When it got to that all-American
qualification in one of the nominees--
Senator Chambliss. He got excited, didn't he?
Senator Warner. --he jumped six inches out of his seat over
here.
[Laughter.]
Senator Chambliss. He may sign him up as a Redskin here
before he leaves.
Senator Warner. His heart is still to become a football
player. I mean, he has tried several times in college, but you
will make it one of these days.
[Laughter.]
PRESENTATION OF VICTOR J. WOLSKI, NOMINEE TO BE JUDGE FOR THE
UNITED STATES COURT OF FEDERAL CLAIMS BY HON. GEORGE F. ALLEN,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Well, I am glad I am here, Mr. Chairman, and
thank you all. It is wonderful to be with Senator Feingold,
Senator Cornyn, and it is my pleasure to be introducing and
support my colleague, Senator Warner, in support of Victor
Wolski of Virginia to be judge for the U.S. Court of Federal
Claims.
I do think Judge Carney would be great. He was in the USFL.
My father coached in the USFL. He played with Reggie White and
Pepper Rogers coached him, and you know Rogers was at Georgia
Tech, so that should give you a few added points for Judge-to-
be Carney.
Senator Chambliss. And the Falcons need some help. He looks
like he is still in pretty good shape, George.
[Laughter.]
Senator Warner. Well, let's kill the nomination and send
him back, then.
[Laughter.]
Senator Allen. I have to look out for the Rangers these
days. At any rate, back to the matter at hand, Victor Wolski.
Victor Wolski is someone who I knew when I was in the House
of Delegates in the Charlottesville area. He was a law student
at the University of Virginia School of Law and that is when I
first got to know him. That was probably before his life was
made much better by his bride, Lisa, who is here with him, as
well as his mother, Jean, of course, who brought him into this
world. And so if Lisa and Jean are here, I would ask that they
would arise and be recognized by the committee.
[Applause.]
Senator Allen. Mr. Chairman, I am happy to report in the
years since he left the University of Virginia, Mr. Wolski has
distinguished himself as a leader in the legal profession and
also as an accomplished legislative aide and, obviously, a very
well qualified nominee. He served as general counsel to the
Joint Economic Committee in the 106th Congress and later as tax
counsel, as Senator Warner said, to Senator Mack.
During his time on Capitol Hill, Mr. Wolski worked closely
with staff on both sides of the aisle to advance Senator Mack's
bipartisan tax agenda, which was a wide variety of bills
covering many areas of the tax code, including low-income
housing tax credit, the District of Columbia's first-time home
buyer tax credit, defense industry taxation, capital gains
taxes, and the research and development tax credit.
He established himself not just as a man of good ideas, but
also one who could work on the tax code in a variety of issues
with people on both sides of the aisle. As Senator Warner
talked about his experience in the private sector with a law
firm, what you have here before you, Mr. Chairman and members
of the committee, is an outstanding individual with legislative
experience, litigation experience, with a proper balanced
perspective for the issues that come before this court and I am
confident he will make an outstanding judge and he has my
highest recommendation and I request that you move as quickly
as possible for his confirmation.
Thank you all for your indulgence and your care.
Senator Chambliss. I thank both of you very much, and we
look forward to hearing from your nominee.
Senator Hutchison, we are glad to have you with us and we
look forward to hearing from you.
PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED
STATES SENTENCING COMMISSIONER BY HON. KAY BAILEY HUTCHISON, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Mr. Chairman, I am here to introduce
Judge Ricardo Hinojosa. He has been my friend for a long time.
He has served as a U.S. District Judge for the Southern
District of Texas in McAllen for nearly 20 years and he is
nominated today for the U.S. Sentencing Commission.
Judge Hinojosa sentences an astounding 400 people per year.
The average is only 70 people per year. He earned his law
degree from Harvard in 1975 and served a year as a briefing
attorney for the Texas Supreme Court, and then returned to the
Rio Grande Valley to practice law for 7 years.
Over the years, Judge Hinojosa has received numerous honors
and awards for his leadership and community service, including
being named one of the 100 Most Influential Hispanics in the
country by Hispanic Business Magazine in 1984 and 1985. He
received the 2001 Distinguished Alum Award from the University
of Texas Students' Association, and he is a former President of
that association. He also teaches at the University of Texas
Law School as an adjunct professor, teaching sentencing.
His outstanding term of service on the Federal Court system
certainly qualify him to serve on this Sentencing Commission
and I do hope that you will be able to put his nomination
through in an expedited way. He is a wonderful person, a friend
that I have known personally for a long time working with him
in the UTX Students' Association, excusing me, Senator Cornyn,
who is a Baylor graduate--no, Trinity graduate, excuse me. But
anyway, he is a longtime friend and would be great in this
position.
Senator Chambliss. And he couldn't have a better
recommendation than coming from you. Thank you very much,
Senator Hutchison.
Senator Hutchison. Thank you.
Senator Chambliss. Senator Cornyn, we are pleased to have
you as a member of the panel to give your recommendation on
Judge Hinojosa.
PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED
STATES SENTENCING COMMISSIONER BY HON. JOHN CORNYN, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman, and I would like
to add my voice to that of my colleague, the Senior Senator
from Texas.
I have learned in the short time that I have been in the
United States Senate the truism that while everything has been
said, not everybody has said it yet, so really, I don't want to
repeat what Senator Hutchison has said because she has done a
good job of talking about Judge Hinojosa's qualifications for
this important job. But, of course, if I wasn't here, then I
would have to explain to my friend, Judge Hinojosa, why I
wasn't here adding my voice in support of his nomination and
people might get the wrong idea, so I am delighted to be here
with Senator Hutchison to recommend to the Judiciary Committee
and hope that we will act promptly to vote this nomination out
to the full floor and have Judge Hinojosa confirmed as one of
the newest members of the United States Sentencing Commission.
Judge Hinojosa, as Senator Hutchison has observed, knows
about sentencing because he does it daily. While guilt is
rarely in doubt in many of the cases that come before a Federal
District Judge, sentencing is one of those things that weighs
most heavily on the minds and the hearts of judges because they
know the consequences of their judgment.
And so the Sentencing Commission was created, of course, to
give some uniformity, some standard guidelines that would allow
judges to assess proper punishment in those cases where guilt
is already established. It is, I think, important to have
judges like Judge Hinojosa, who are experienced, who know how
it works in real-life application, because, of course, they are
writing the rules that have to be applied by judges all across
this country and it is important to have those who are there
where the rubber meets the road and who understand the
practical implications of these important guidelines.
So in closing, let me just say how delighted I am the
President has chosen such an outstanding individual for this
great honor and how much I look forward to Judge Hinojosa's
excellent service on the United States Sentencing Commission.
Thank you.
Senator Chambliss. Thank you, Senator Cornyn, and again, we
look forward to the presentation of these nominees.
At this time, we are going to ask the first panel of
nominees, Mr. Carney, Mr. Selna, Mr. Simon, Ms. Springmann, Ms.
Williams, and Mr. Wolski, to please come forward. Before you
sit down, we are going to ask all of you to be sworn, and would
you remain standing to be sworn, please. Would each of you
raise your right hand, please.
Do you swear the testimony you are about to give before
this Committee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Judge Carney. I do.
Judge Selna. I do.
Mr. Simon. I do.
Judge Springmann. I do.
Judge Williams. I do.
Mr. Wolski. I do.
Senator Chambliss. Thank you. You may be seated and we will
put a name tag in front of you.
We will start with you, Judge Carney, and I will ask each
of you if you have any opening statement you wish to make, we
will be glad to hear your opening statement. Or if you have
your family here, even though they may have been recognized, we
would love for you to recognize them again. So, Judge Carney,
we will start with you.
STATEMENT OF CORMAC J. CARNEY, NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA
Judge Carney. Thank you, Mr. Chairman. I do not have an
opening statement, but I would like to take you up on your
offer to introduce my family again.
First, if I could introduce my wife, Mary Beth. Do you want
to stand up? And my daughter, Claire, my son, John, my son,
Thomas, my mother-in-law, Mary Fagerson, my father, Padraig
Carney, and my sister, Sheila Thalimer.
Senator Chambliss. We are glad to have all of you here.
Judge Carney. Thank you.
Senator Chambliss. Judge Selna?
STATEMENT OF JAMES V. SELNA, NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA
Judge Selna. Thank you, Mr. Chairman. My wife, Harriet, is
here and I would like to acknowledge her, if she would stand,
please. And our daughter, Christine, is here with us, as well.
She is pursuing a degree in psychology while working at
Disneyland, as well.
With the chairman's permission, I would also like to
acknowledge several folks who couldn't be here today, my
brother, Terry Selna, and my sister-in-law, who live in
Danville, California, and my courtroom staff who sent me here
with their best wishes and wishes for good luck.
The courtroom is a difficult place, and to run smoothly it
requires a diligent and loyal staff and I certainly have that.
I would like to acknowledge my court clerk, Sarah Ochoa, who is
on pregnancy leave with her third child, my relief clerk, Larry
Brown, my court reporter, Heidi Stewart, my courtroom
assistant, Becky Chumpitazi, and my bailiff, Derrick Webb, and
my research attorney, Cathy Fair. Thank you, Mr. Chairman.
Senator Chambliss. You are a smart man, Judge. None of us
could do without great staff.
Mr. Wolski?
STATEMENT OF VICTOR J. WOLSKI, NOMINEE TO BE JUDGE FOR THE
UNITED STATES COURT OF FEDERAL CLAIMS
Mr. Wolski. Thank you, Mr. Chairman. Having served as a
staffer for a member of the Senate for three-and-a-half years,
it is always a great privilege and great pleasure to be back
here at the United States Senate and it is a tremendous
privilege to be sitting here rather than sitting back there,
which is where I am used to.
I would like to again recognize my family who is here, my
mother, Jean, who came down from Philadelphia, and my wife,
Lisa, who lives with me in Virginia.
[Laughter.]
Mr. Wolski. My brother, Charles, unfortunately wasn't able
to make it here. He made it about a quarter of the way. He went
from Brooklyn to Philadelphia, but then he was not feeling
well, so I would like to acknowledge that he would have liked
to have been here.
Also having worked on the Hill for so many years, I have
got a number of friends here. I don't know if I could possibly
go through and mention them all, a lot of people who worked on
the Joint Economic Committee staff with me for Senator Mack,
people who worked in Senator Mack's personal office, people who
worked for members of the Senate Finance Committee, because I
did Senator Mack's tax work for the Finance Committee and knew
quite a number of those.
I would also like to acknowledge my friend, Richard Beneke
[ph.] from college, from the University of Pennsylvania. Dick,
do you want to stand up? Here is your chance.
[Laughter.]
Mr. Wolski. Also, several of my colleagues from Cooper and
Kirk are here, and I also would like to acknowledge my friend
and co-counsel, John Cuneo, who is also back there somewhere. I
do appreciate the support.
Senator Chambliss. Thank you.
Judge Springmann?
STATEMENT OF THERESA LAZAR SPRINGMANN, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF INDIANA
Judge Springmann. I have no opening statement, Mr.
Chairman. However, I would like to introduce the family that is
with me today.
Senator Chambliss. Certainly.
Judge Springmann. First, I would like to introduce my
husband, David. We have been married for 23 years this year and
I met him when I was a sophomore in college, so that goes back
to age 19. He has been my number one supporter all during that
time and in the different positions that I have held as an
attorney and a wife and a mother.
I would also like to introduce my mother, Betty Lazar, who
is here. Mom? She didn't want me to say anything, but she is
going to be celebrating her 80th birthday next month.
Senator Chambliss. All right.
[Applause.]
Judge Springmann. And she was bound and determined, with a
sore back and other things, to make it here today to be a part
of this experience.
I also want to introduce my two sons, my son, Tony, who is
10 years old, and my son, Gus, who is 12 years old.
Senator Chambliss. Guys, it is not that rough in here. You
are all going to be okay.
[Laughter.]
Senator Chambliss. That was an effort for Tony to get up
there, I could tell. We are glad to have you all.
Judge Springmann. This has been the quietest they have been
for this period of time in years.
Senator Chambliss. Mr. Simon?
STATEMENT OF PHILIP P. SIMON, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF INDIANA
Mr. Simon. Thanks, Mr. Chairman. I also have no opening
statement. I have quite a few people in the room I would like
to acknowledge, as well.
First and foremost is my wife, Jane Simon. She is a law
clerk to a Federal judge in Chicago. My daughter, Claire, is
sitting next to her, and my other daughter, Sarah, is also
here. My son, Matthew, couldn't be here today. I am also
fortunate to have my Mom and Dad here, Bob and Bonnie Simon,
and my sister, Jeanine Swick, and her two daughters, Mary and
Margaret, my Aunt Mary Beth Hyland, and her daughter, my
cousin, Christina, and last but not least, the world's greatest
mother-in-law, Sally Mays. Thank you.
Senator Chambliss. Great.
Judge Williams?
STATEMENT OF MARY ELLEN COSTER WILLIAMS, NOMINEE TO BE JUDGE
FOR THE UNITED STATES COURT OF FEDERAL CLAIMS
Judge Williams. Thank you, Mr. Chairman. I have no opening
statement, but I would like to thank the Committee for
convening this hearing.
With me today, I am very proud to introduce my family, my
husband of 20-plus years, Mark Calhoun Williams, who has
encouraged me in all that I have been able to do; my son,
Justin Williams, who is 15 years old and luckily happens to be
on spring break from the Woodbury Forest School, so he is able
to be with us; my daughter, Jackie Ann Williams, who is a sixth
grader at Pyle Middle School in Montgomery County, and she is
here with us despite the fact that it is an unexcused absence.
[Laughter.]
Judge Williams. Also, I am very proud to introduce my
mother, Rosemary Coster, who has traveled here from New York to
be with us today, as well as my brother, Joseph Gerard Coster,
who is here from New York. Missing from our huge family are
several other brothers and a sister. My brother John and James
and my sister Pat are all up in New York working hard. My
brother, Gerard, lives in Jacksonville, Florida. And my 13
nieces and nephews are busy in school.
But I do have several friends who are here, as well, my
dear friends Scott and Peggy Ann Technay, and Kent Morrison and
did Stefan Lapaskiewicz make it? Well, he may join us later.
Thank you, Mr. Chairman.
Senator Chambliss. Great. We are glad to have all of your
family and friends here supporting you today.
Senator Chambliss. I want to start with you, Judge Carney,
and we will just go down the row, if each of you will take
these questions. We may give you a break, Judge, and let
somebody else go first on this end.
First of all, each of you are nominated to be a trial
judge, even though it may be different courts and different
levels of court in the Federal Court system. But each of you
are nominated as trial judges. Under what circumstances do you
believe it appropriate for a Federal Court to declare a statute
enacted by Congress unconstitutional? Judge Carney?
Judge Carney. Thank you, Mr. Chairman. Obviously, with any
statute drafted and enacted by Congress, there is a presumption
of constitutionality. It would seem to me that I would be very
reluctant to declare anything unconstitutional. Obviously, the
court who should be making law or evaluating that is a court
that is superior to me, the Ninth Circuit or the Supreme Court.
Senator Chambliss. Judge Selna?
Judge Selna. Clearly, the legislation which Congress passes
begins with a presumption that it is constitutional. I think it
is the extraordinary circumstance where a District Court would
hold that a law passed by Congress is unconstitutional. I think
it would require a clear deviation of the precedents--from the
precedents of the United States Supreme Court and I think that
is a rare circumstance.
Senator Chambliss. Mr. Wolski?
Mr. Wolski. Well, for the Court of Federal Claims,
actually, the jurisdiction, I don't believe, would allow a
judge to declare an act of Congress unconstitutional. The
Claims Court would be able to give money damages to people. I
guess the constitutionality of a provision could come up in
some of the tax areas. But I agree that the acts of Congress
that we review do have a presumption of constitutionality.
There is a very heavy burden that somebody must--who is
challenging that constitutionality must reach in order to carry
the day and I would, of course, follow very carefully the
binding precedents of both the United States Supreme Court and
the Federal Circuit in making these determinations.
Senator Chambliss. Judge Springmann?
Judge Springmann. Mr. Chairman, I would concur in the
comments of my colleagues, that when posed with that issue, you
would first look to the statute, and particularly an act of
Congress, and begin with the presumption that it is
constitutional. It is very rare, indeed, that a judge, a trial
judge would be faced with a circumstance of determining that a
statute is unconstitutional and rule on it in a vacuum.
A trial court must look to the precedents that have been
set out by the United States Supreme Court as well as the
circuit in which that trial judge sits, and in our situation,
that would be the Seventh Circuit situated in Chicago. We would
look to those courts for guidance in how to interpret similar
statutes and take that guidance and apply it to that situation.
It would, indeed, be a very rare occurrence to ever declare
such an act of Congress unconstitutional.
Senator Chambliss. Mr. Simon?
Mr. Simon. Mr. Chairman, I totally agree with that. I think
that any District Court judge has to start from the premise
that Congress is acting in a constitutional way when it is
passing or enacting statutes. So I would certainly start from
that bent.
I really believe that it would be my obligation to look to
my circuit and the Supreme Court and follow those precedents,
but I really feel as if that acts of Congress deserve
considerable deference in the laws that they pass and it would
be a very, very rare circumstance indeed where I could envision
finding something unconstitutional.
Senator Chambliss. Judge Williams?
Judge Williams. Thank you, Mr. Chairman. I would echo the
sentiments of all my colleagues up here today, especially those
of Mr. Wolski, noting that the United States Court of Claims is
a court of very limited jurisdiction. It would be highly
unusual for us to be asked to judge a statute unconstitutional,
but were we to be, I would certainly apply that strong
presumption in favor of the constitutionality.
Senator Chambliss. In general, Supreme Court precedents are
binding on all lower Federal courts and Circuit Court
precedents are binding on the District courts within the
particular circuit. Are each of you committed to following the
precedents of higher courts faithfully and giving them full
force and effect, even if you personally disagree with such
precedents?
Judge Carney. Yes, Mr. Chairman.
Senator Chambliss. If I can get a positive response from
each of you.
Judge Selna. I can give you that assurance without
qualification, Mr. Chairman.
Mr. Wolski. Absolutely, Mr. Chairman.
Judge Springmann. Absolutely, Mr. Chairman.
Mr. Simon. I concur.
Judge Williams. Absolutely.
Senator Chambliss. Ms. Williams, we will start with your
end this time. There may be times when you will be faced with
cases of first impression. What principles will guide you, or
what methods will you employ in deciding cases of first
impression?
Judge Williams. Well, Mr. Chairman, in fact, I have had
that happen to me already in my life as a judge for the last 14
years on the Board of Contract Appeals. Back when this board
was deciding bid protests, we had a very unusual statute and no
one else had ever interpreted it before. Largely, the questions
entailed questions of jurisdiction that the board had, and the
way I approached it then and the way I think I would continue
to approach it was to look at the clear language of the statute
first and to attempt to understand the law that way and apply
it and decide the case as best I could that way.
Senator Chambliss. Mr. Simon?
Mr. Simon. I agree. I think what a District Court judge has
to do is to read a statute and determine, based on the plain
meaning of the statute, using ordinary usage, or applying
ordinary usage to the words that are in the statute, and apply
it to the facts and circumstances of the case before you. I
think it is fair for judges in cases of first impression to
look to analogous situations to try to determine how or to see
how the Supreme Court or the Seventh Circuit has addressed
perhaps a similar situation and to try to follow that lead. But
the guiding principle should be, what does the statute say and
what does it mean and to apply it to your facts and
circumstances.
Senator Chambliss. Judge Springmann?
Judge Springmann. With regard to a case of first
impression, and during my tenure as a Magistrate Judge, I have
had that situation happen in one or two cases, the standard
principles apply in viewing such a case, and that is that you
apply standard legal principles. You look first to see whether
or not it is, in fact, a case of first impression by looking
to, again, United States Supreme Court decisions, decisions
within the circuit in which you are situated, as well as any
other case decisions within that circuit or within our
district.
Likewise, if there are any analogous cases to which you
can--which you can review and analogize the facts and legal
principles to apply to a case of first impression, that is what
would be appropriate for a trial court judge to do and that is
what I would promise to do.
Senator Chambliss. Mr. Wolski?
Mr. Wolski. Thank you, Mr. Chairman. Certainly, I concur
with the comments of my colleagues on this panel. When you are
presented by a case of first impression as a judge, if the
question deals with a statutory interpretation, you start first
with the text of the statute, look at the language that was
employed by Congress, use the ordinary meaning of that
language. If it is ambiguous at all, then repair to aids such
as legislative history, conference reports. If instead this is
a matter that involves a contract, that would be the document
that you would first be construing, that you would do the same,
starting with the text.
And then, of course, you would look carefully to see if
there are analogous situations, try to determine what the legal
principle that was followed by the Supreme Court and the
Federal Circuit Court in the most analogous situations was and
try to adapt that to the facts that are presented to you in the
case.
I believe that also you should read very carefully the
briefs that are filed by both parties and look very carefully
at the cases that they cited. That might be a very good place
to start to try to determine analogous cases, and also, it is
the respectful thing to do in treating very courteously the
submissions of the parties.
Senator Chambliss. Judge Selna?
Judge Selna. Mr. Chairman, I agree with the hierarchy of
analysis suggested by my colleagues. I think that it is the
rare day when you have a truly question of first impression and
that the farther one digs, the more likely one is to find an
answer, going back in the case of legislation to the floor
debates, to the reports, to try and divine, to the extent it is
unclear from the face of the statute, what Congress had in
mind. I think diligence will limit the number of first
impression cases as true questions of first impression.
Senator Chambliss. Judge Carney?
Judge Carney. Mr. Chairman, to avoid sounding like a
parrot, can I adopt all the answers of my colleagues here?
[Laughter.]
Senator Chambliss. Whatever.
[Laughter.]
Senator Chambliss. It certainly speeds up the process,
Judge.
Judge Carney. I think I will, because what they said makes
sense to me and I agree with it.
Senator Chambliss. Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. I would like to welcome all the witnesses
and all your lovely families. One of the oddest parts about
this job is that you come to a setting like this with the nice
families and you still have a job to do, so I have to rain just
a bit on the parade here and make a few comments about this
hearing and the situation we are in in the Committee on
nominations.
I am concerned that we are proceeding with another
nominations hearing when we have not resolved the serious
breach of the Committee rules that took place a few weeks ago
when we voted on Justice Deborah Cook and John Roberts. The
entire episode came about because this Committee refused to
schedule another hearing for those two nominees who many on the
Committee felt were not adequately examined at the
unprecedented hearing held on January 29 with three Circuit
Court nominees. And yet, despite our concerns with that, there
is a hearing scheduled just a day after this hearing on eight
lower court nominees with Justice Priscilla Owen, who had an
extensive hearing last year.
I think we need to restructure our priorities on this
committee, Mr. Chairman. We are shortchanging the Senate's
constitutional responsibility to advise and consent on judicial
nominees with this extraordinary case.
Two of the nominees on the agenda today are for the
bipartisan U.S. Sentencing Commission. It is my understanding
that there has been no consultation at all with the Democratic
Congressional leadership on the choice for a Democratic seat
for this Commission. Now, this continues a disturbing pattern
that can only lead to more delay and controversy on the floor
for these two nominees.
And we have two nominees to an Article I court, the Court
of Federal Claims. This court has also traditionally been
treated in a bipartisan manner, but again, the administration
has chosen to break with tradition and is moving forward to
fill all the vacancies without consulting with the Democratic
leadership or with this committee. That, too, could cause
delays on the floor, as well, if not in this committee.
I note also that one of the nominees on the agenda today is
the most recent of the nominations to that court. The other
nominees might wonder why he has been moved to the front of the
line, and frankly, Mr. Chairman, so do I.
I would like to ask Mr. Wolski a few questions.
Congratulations on your nomination.
Mr. Wolski. Thank you, Senator.
Senator Feingold. I am told that in 1999, you told the
National Journal that, quote, ``Every single job I have taken
since college has been ideologically oriented, trying to
further my principles. I am essentially a Libertarian. I
believe in limited government, individual liberty, and property
rights,'' end of quote.
I would be shocked if you told us you view this next job
that you have been nominated to as ideologically oriented based
on the answers that you just gave. In fact, I am sure you are
going to assure us, and I think you really have already, that
you would put your personal views aside and simply apply the
law, and that is what, of course, all nominees say when they
come before this committee, so let me ask you a few specific
questions in light of your earlier writing.
Do you understand why it would concern at least some
members of this Committee that a self-professed idealogue has
been appointed to be a judge?
Mr. Wolski. Well, Senator, I do appreciate the question and
I appreciate the opportunity to, if I may, qualify the remarks
from the National Journal article.
Senator Feingold. Go right ahead.
Mr. Wolski. As I remember the question, and those
particular remarks actually came from a profile of the Joint
Economic Committee in the, I guess it's called the ``Hill
people'' issue that comes out every 2 years, or I assume it
comes out every 2 years, and I can say I am not certain what
exactly language I used in discussing with the reporter, but I
do recall the question that I was asked, which was why I was
willing to relocate from California to come to Washington,
D.C., to work for a Senator from Florida, which is a reasonable
thing to inquire.
And the sentiment I tried to express, and perhaps I didn't
use the best words, was that unlike my colleagues at the
University of Pennsylvania, where I was an undergraduate in the
Wharton School, or a lot of my colleagues at the University of
Virginia School of Law, particularly people who had District
Court clerkships, to me, trying to get the highest-paid job
possible was never a concern of mine. Money was never the be
all and end all for me.
I was very--I had a tremendous opportunity to be able to go
to college, and the first in my family. My mother and my father
didn't have that opportunity, and I have always felt very
strongly that somebody should give something back to the
community and that somebody should, when they are given such an
opportunity and such a privilege of higher education, to do
something good for the community. And that is why the jobs I
have taken were jobs in the public sector, which I believe very
strongly in, jobs in the nonprofit world, jobs that related to
matters like tax policy, which interested me.
And the point that I was trying to make was just that
this--my decision to come here and work for Senator Connie
Mack, a tremendous opportunity, very respected member of the
Senate, to do the tax work for his Finance Committee
responsibilities, was a tremendous opportunity that was
consistent with my commitment to the public sector and was
consistent with my commitment to nonprofit interests, and that
is really the only point I wanted to make in that--
Senator Feingold. Well, let me first say that I respect
those comments in terms of your observations and your
commitment to public service. I remember having a similar
reaction at law school to what choices others were making. But
if I could get a direct answer to the question, given that
explanation--
Mr. Wolski. I am sorry, Senator.
Senator Feingold. I think that is fair, the explanation you
gave. Let me just ask you, do you understand why it would
concern at least some members of this Committee that a self-
professed idealogue has been appointed to be a judge?
Mr. Wolski. Yes, I certainly can understand that and I
guess the reason I went into the extended explanation was just
that I don't consider myself an idealogue. I'm not somebody who
rigidly sticks to one position. I'm not somebody who's
inflexible. I think the people that know me and have worked
with me on Capitol Hill could attest to that. I have worked
closely with people in staff of Senate offices on both sides of
the aisle on a number of bipartisan initiatives, things like
the low-income housing tax credit or the D.C. Economic Recovery
Act--
Senator Feingold. Let me ask you another question. Do you
understand the concern that some have about someone who
proclaimed with some pride that he is a Libertarian who
believes in limited government and property rights being
appointed to be a judge on this particular court? Do you
understand why it would lead to some concern?
Mr. Wolski. Oh, certainly, Senator. I could understand why
the first part of that might concern somebody. Again, by
Libertarian, all that I meant was in the context of the
economic policies that we were pursuing at the Joint Economic
Committee to try to maintain prosperity, I had a free market
orientation. I didn't--certainly did not mean that I was a
Libertarian in the sense that I believe that government is bad
and we should get rid of government. In fact, I wouldn't have
spent so many years working in government if I believed that.
But on the second part of that, I actually must say that it
shouldn't concern--I think it shouldn't concern anybody that a
nominee to the Court of Federal Claims supports the notion of
property rights and supports the notion that there are limits
to government, because if you think about it, there couldn't be
a Court of Federal Claims, there couldn't be a place for
citizens to go to get money damages against the government
unless there was a recognition that there are property rights,
unless there was a recognition that there were some limits to
government--
Senator Feingold. Well, I think there is some truth to
that, so let me--
Mr. Wolski. --whether that is through the Constitution or
by the government entering into a contract.
Senator Feingold. I think there is some truth to that. Let
me ask it another way, then, in fairness to you. Do you agree
that if you testified here today that you view this appointment
to the bench as yet another opportunity to further your
principles of limited government and property rights, that in
that context, Senators would be justified in voting against
your confirmation on that basis?
Mr. Wolski. Thank you for that question, Senator. I
certainly can assure you that I don't view the Court of Federal
Claims as a place for somebody to be furthering any political
or policy views that they have. It is very important in our
society under the rule of law that judges not ever consider
their personal views, not ever consider their personal beliefs
or the positions that they have argued earlier as a counsel
when they become a judge. It is a very--that is exactly the
wrong thing to do and--
Senator Feingold. Fair enough. Let me ask you about a
specific case. In a brief for the Pacific Legal Foundation,
Cargill, Inc. v. United States, you argued that it was far
beyond Congress's power under the Commerce Clause to protect
ponds that served as a habitat for migratory birds. In the
brief, you described wetlands as, quote, ``puddles,'' unquote,
and you raised concerns regarding the longstanding national
interest in protecting migratory birds.
In fact, this brief states, quote, ``Jurisdictions over
puddles was justified by the Ninth Circuit on the basis that
birds might frolic in these puddles,'' unquote. You also
stated, quote, ``Will one fewer puddle for the birds to bathe
in have some impact on the market for these birds,'' unquote.
You also praised the Supreme Court for its five-to-four
decision in United States v. Lopez for beginning to reign in
the abuses of the Commerce power justification for acts of
Congress.
As you know, the Supreme Court decision in Penn Central
requires courts to assess the importance of the governmental
interest involved in determining if regulations affect a
taking. If you were asked to decide a takings case that
involved the protection of wetlands or the protection of
migratory birds, do you believe that you could rule impartially
and not enjoin legislation giving the government the ability to
protect the environment? Do you continue to believe, as you
asserted in your brief, that Federal environmental laws passed
under authority of the Commerce Clause, such as the Clean Water
Act, are unconstitutional?
Mr. Wolski. Thank you for that question, Senator. At the
outset, I would like to point out that the brief you are
mentioning was an advocacy brief on behalf of a client. I was
taking the position on their behalf and I obviously was living
up to my duties to make a zealous representation of their
interests. It is certainly no reflection of what I would do as
a judge and it is no reflection of my personal views.
I would point out also that in that particular case, when
the United States Supreme Court ultimately did consider the
issue of the Clean Water Act and what Congress intended the
Clean Water Act to do, the Supreme Court said that whether
migratory birds could be protected did raise significant
constitutional issues. So it certainly wasn't a frivolous
argument. It certainly wasn't an unreasonable argument to make
and raise on behalf of a party.
I can assure you, though, if I am fortunate enough to be
confirmed to be a judge of the Court of Federal Claims that I
will consider very seriously the important purposes of
government behind every single regulation that anyone has based
a takings claim upon. As you may know, the Court of Federal
Claims actually couldn't invalidate any laws. You take as given
that the law is legitimate. You take as given that it has got a
good purpose. And instead, what you are doing is looking to see
the impact on the property owner.
As you mentioned, you are correct. Under Penn Central, I
would certainly look at the economic impact on the property
owner. I would certainly look at whether the government action
interfered with reasonable investment-based expectations. And
also, I would consider the nature and character of the
government action. In one of the more recent Supreme Court
cases, I believe it was the Taos Sierra case, the decision by
Justice Stevens explains quite clearly that under the character
and nature prong of the Penn Central test, you have got to
consider the important interests of the government.
Senator Feingold. But you do not go into this job believing
that the Clean Water Act passed under the authority of the
Commerce Clause is unconstitutional, do you?
Mr. Wolski. No, I do not. That is--that is not the case.
The Clean Water Act has been upheld and I certainly believe
that that is a constitutional act.
Senator Feingold. Thank you, Mr. Chairman, and I thank the
witness. I know my time is up. I would just like to ask
unanimous consent that two letters expressing concern about the
nomination of Mr. Wolski be included in the record.
Senator Chambliss. Without objection.
Senator Feingold. Thank you, Mr. Chairman.
Senator Chambliss. My friend from New York has joined us
and we are glad to have you here, Chuck. Senator Schumer?
Senator Schumer. Glad to be here. I have been watching it
on TV from my office and I have enjoyed your comments.
I also want to welcome all of the nominees here today, and
particularly--as I understand it, Judge Williams is no longer
from New York but hails from New York, although they didn't
tell me where. Whereabouts, Judge?
Judge Williams. Flushing, New York.
Senator Schumer. Flushing? That is known as part of Queens
to most of you--
[Laughter.]
Senator Schumer. --and it is where the New York Mets play
baseball. Isn't that nice.
Judge Williams. I must tell you that I worked at Shea as a
young person.
Senator Schumer. Did you?
Judge Williams. Yes, indeed.
Senator Schumer. I have been a Yankee fan--
Judge Williams. Oh well.
[Laughter.]
Senator Schumer. --but that won't interfere with my--
Judge Williams. Please, you can strike that comment.
Senator Schumer. --impartiality as we look at your
nomination.
[Laughter.]
Senator Schumer. I have questions of Victor Wolski. The
other folks, you can relax.
[Laughter.]
Senator Schumer. Maybe you can relax, too, Mr. Wolski.
I think my position on judges is well known. I have three
standards in the selection of judges, excellence, in other
words, legal excellence. You have to be really good. These are
important jobs. Moderation, I don't like judges too far right
or too far left because I think judges who are at the extreme
feel so passionately about what they do that they tend to make
law rather than interpret law, which is what the Founding
Fathers wanted us to do. And third, diversity. I don't think
the bench should all be white males.
The excellence qualification, I don't have any problems
with any of the nominees in that regard. It is the moderation
that I am worried about with you, Mr. Wolski, because you are
known not as somebody who is moderate, particularly on taking
issues, but someone who has a decided point of view.
And to me, for a nominee to just simply say, I will follow
the law, is not sufficient, because if everyone followed the
law in the same way, we could have a computer do our judging.
If everyone followed the law in the same way, it wouldn't
matter which President nominated you or what your political
views were. You would rule cases the same. But study after
study has shown nominees from Democratic Presidents rule
different than nominees from Republican Presidents, and while
there are exceptions to every rule, people's personal views
always enter into the way they follow the law.
So I have some concerns about your nomination, Mr. Wolski,
given that you have been quite far over, at least in my
judgment, on many of the issues that the Court of Claims would
have to judge, and here is a quote from you. You have said,
``Every single job I have taken since college has been
ideologically oriented, trying to further my principles. I am
essentially a Libertarian. I believe in limited government,
individual liberty, and property rights.''
Now, I think I believe in--I know we all believe in those
things, too, but read in the context of what you have said and
put up against the kind of cases you have reached out to take
in order to advance this ideological agenda, I am pretty
confident that your beliefs are not sort of in the shades of
gray which most of the world really exists in.
So first, I would like to ask you, you have said, well, I
was representing clients and that is why I took this and this
position when my friend from Wisconsin questioned, but on the
other hand, you have said, ``every job I have taken has been
ideologically oriented.'' Just tell me how you can reconcile
those two views.
Mr. Wolski. Thank you for the question.
Senator Schumer. First, you did say that, right?
Mr. Wolski. I can't be sure that those are my exact words,
but I do remember the question and I do remember the sentiments
I was trying to express, and as I explained earlier to Senator
Feingold, the--maybe I didn't use the best words. First, let me
state flat out, I don't consider myself an ideologue. I am not
somebody who takes a rigid position on things and can't be
flexible. People who have worked with me on Capitol Hill, I
think know that. I have worked with people on both sides of the
aisle, staff members for the Democrat as well as Republican
members of the Finance Committee, on Senator Mack's bipartisan
agenda and things like low-income housing and tax credit, the
D.C. Economic Recovery Act, and a number of bipartisan bills.
That particular comment, what I was trying to get--trying
to convey was just that I have never chased the highest-paying
job. I have never been somebody who wanted to go work on Wall
Street, work for the big firms. I have been interested in
public sector work. I have been interested in nonprofit work. I
think it is very important that people do give something back
to the community and that is how I did that. I was merely
explaining that coming to work for Senator Mack is consistent
with my background of having done public sector work and having
done nonprofit work--
Senator Schumer. And that is--
Mr. Wolski. --and that I do believe that those things are
important. The use of that word, it was probably a poor choice
of words. Certainly, I recognize that now. But that is not--
that is not what I meant to convey.
Senator Schumer. Are you saying you didn't say that?
Mr. Wolski. I am not certain. I could have. It is possible
I could have misspoken. That is not what I meant, though. By
``ideological,'' I did not mean I am somebody who is an
ideologue. I mean I am somebody who has taken public sector
jobs and nonprofit jobs, jobs that involve public issues, idea-
oriented public issues jobs.
And anyone who is familiar, I think, with my record over
the last few years and who knows the sort of cases I have
taken, I think would agree that I am not a rigid, closed-minded
person. I am an attorney representing a class of Medicare
beneficiaries who are suing the tobacco industry to try to
recover reimbursement to the Medicare system.
Senator Schumer. Let me ask you, have you taken any cases
in the environmental law area where you have been on the other
side, where you have been on the so-called non-taking side or
the environmental side?
Mr. Wolski. Well, yes, Senator. As a matter of fact, I have
been involved in two over the last few years. In fact, the only
land use matter that I have been involved with in the last 6
years has been on the side of local governments who were trying
to prevent commercial development from taking place near them.
The county had approved the development and they thought that
there were going to be traffic and safety problems and they
wanted to stop it. We looked at that for them. That was
something I worked on--
Senator Schumer. What case was that? Was that a case that
was litigated?
Mr. Wolski. We ended up not filing any Federal action on
it, but we looked at it and did the legal work for the--
actually, for some towns in New York.
Senator Schumer. Which towns were those? Not Flushing, I
presume.
[Laughter.]
Senator Schumer. No, they don't have a legal--
Mr. Wolski. No, towns in Westchester County.
Senator Schumer. Okay. If you can get us some information
on that, I would like to know some details about that so I can
figure that out.
Mr. Wolski. Certainly. Certainly. But in any event, that
was a case in which, obviously, the side we were on was seeking
to prevent commercial development.
Senator Schumer. Right.
Mr. Wolski. Another instance is my representation for the
State of Nevada in its efforts to resist the placement of a
nuclear repository in Yucca Mountain, and in this particular
matter, I think that probably every single environmental group
in the country, at least that I am aware of, is on our side, is
on the side I am taking. And those are two examples.
Senator Schumer. Okay, thanks. I still, I think you are
going to have a hard time saying, ``I meant I enjoyed public
service when I said every single job I have taken since college
has been ideologically oriented, trying to further my
principles. I am essentially a Libertarian. I believe in
limited government, individual liberty, and property rights.''
It strikes me as if you wanted to say, ``I want to serve the
public and I enjoy being in public service,'' it wouldn't have
quite come out that way, but let me ask you another one.
Mr. Wolski. Sure.
Senator Schumer. This is a letter that you wrote in 1992.
It is a letter to the editor to the San Francisco Examiner, and
this is signed by Victor Wolski, Victor J. Wolski. It says,
``Admitted, it is''--you are talking about the electoral
college. ``Don't trash States' roles in the electoral college
system,'' and then you go on to talk about the electoral
college, and the final paragraph reads as follows.
``Admittedly, it is ironic in all of these years when
people are thoroughly disgusted with a rogue Congress''--this
was 1992--``that raises taxes, raises spending, raises its
pay''--by the way, are you against pay raises for Congress
members?
Mr. Wolski. Not any more, Senator.
[Laughter.]
Senator Schumer. Not any more. They are tied to judges'
salaries, you might know.
[Laughter.]
Senator Schumer. ``--and is so used to the unconstrained
use of other people's money that its members don't bother to
balance their own checkbooks. We might see the Presidential
election decided in the House. However, there are two silver
linings. Many of the current bums will be gone, and the
importance of the individual States in our system of government
will be underscored.'' Did you write that?
Mr. Wolski. I certainly--I do remember writing a letter to
the editor. I think that was in response to, was it Chris
Matthews' column, I believe?
Senator Schumer. Yes, it was, because you mentioned Chris
Matthews being upset to have discovered any vestige of State
sovereignty. So it was. What do you think of those words 11
years later?
Mr. Wolski. I certainly think the use of hyperbole was a
bit much. I meant--certainly didn't mean to--didn't mean any
disrespect to you as a member of the House at that time,
Senator.
[Laughter.]
Senator Schumer. You mean I wasn't one of the current bums?
[Laughter.]
Mr. Wolski. No, no. Even though I am a Mets fan and you are
a Yankees fan, no.
Senator Schumer. Well, the Dodgers were known as the bums,
frankly.
Mr. Wolski. That was my father's team.
[Laughter.]
Senator Schumer. Well, go ahead. Why don't you elaborate a
little and tell me what you think of this. Again, it strikes me
as somebody who has a passion on one side of the fence. That is
not a bad thing. I just am not sure it is the right place for a
judge. So do you want to say anything else about that?
Mr. Wolski. Senator, just that I--among the principles that
I do believe in is the notion of judicial restraint, and I
believe very strongly that a judge should not try to make law,
that a judge should not try to make policy. I particularly
appreciate that having served here in Congress. If I had served
in Congress before I had written that letter, I am sure that
the tone would have been different. In fact, I probably
wouldn't have written it. I have come to appreciate even more
than I ever did the important role that Congress plays in our
society and the important role of the legislature. I very much
enjoyed my time working here in the Senate and I would
certainly never try to usurp the law-making or the policy-
making role of the Congress or the policy-making role of the
executive branch, for that matter.
Senator Schumer. Okay. That does seem at odds with the
statement that ``every job I have taken since college has been
ideologically oriented.'' It does again. You know, I will
follow the law. Given that you are taking this job now, people
change. I am the first to admit that. I am worried about that.
Let me ask you this one. In light of the positions you took
in briefs for the case in Cargill v. United States, would you
please describe your understanding of Congressional powers
under the Commerce Clause to regulate under the Clean Water Act
and the understanding of the term ``navigable waters.'' Your
brief is--it is contentious, I guess. People might describe it
as sarcastic. You pose such questions as, is the color of the
houses the next subject, since certain colors might deter birds
from an otherwise cozy resting spot.
And another example of the statement is Congress nowhere
found that the viability of migratory fowl or endangered
species populations is dependent upon the preservation of such
isolated wetlands. However, as I understand it, in the
Migratory Bird Treaty Act and the North American Wetlands
Conservation Act, Congress made just those two findings.
So would you comment on your views on the Commerce Clause
and the term ``navigable waters.''
Mr. Wolski. Certainly, Senator.
Senator Schumer. Navigable, however. I don't know how to
pronounce that word, to be honest with you.
Mr. Wolski. I guess it is navigable.
Senator Schumer. Navigable.
Mr. Wolski. I am from the same general section of the
country, so I--
Senator Schumer. Flushing.
Mr. Wolski. Well, actually, I am from New Jersey
originally, Sayreville, near Perth Amboy.
Senator Schumer. Right.
Mr. Wolski. Now, I must confess at the outset that this is
not--that Commerce Clause area is not really something that I
have litigated in much over the years and looked at much. It is
not actually something that could come before the Claims Court,
either, since we take--we accept as valid the laws that are
before us and don't look to see whether or not there is a--it
was a permissible exercise of Congressional power.
Having not looked at the Supreme Court cases in this area
very recently, as I understand it, the test that the Supreme
Court employs is whether something is--for something to be
regulated under the Commerce Clause power of Congress, it
either has to be--has to involve an article that has been in or
traveled through commerce or something that might substantially
affect commerce, and in light of that, obviously, the United
States Supreme Court in the Wickerd v. Filburn case had held
that one way to determine whether there is some substantial
effect on commerce is to consider the aggregation of all the
impacts or all of the--I guess impacts is probably the best
word--on commerce from any particular--in that case, it was a
farmer growing wheat.
In the Cargill case you have mentioned, the Clean Water Act
and the scope of the Clean Water Act was what was at issue. I
understand that the--I believe the United States Supreme Court
in the Solid Waste Agency of Northern Cook County case had said
that there were significant constitutional issues involved in
trying to determine whether Congress's power would extend under
the Commerce Clause to protect migratory birds in a particular
circumstance. Certainly, under the treaty power, Congress can
protect migratory birds, as they have--I think Missouri v.
Holland was the case that recognized that.
Senator Schumer. So how does that square with, in your
brief, that Congress nowhere has found that the viability of
migratory fowl or endangered species populations is dependent
on the preservation of such isolated wetlands?
Mr. Wolski. Well, Senator, I don't believe that in the
Clean Water Act there were any such findings. In fact, I might
be mistaken on this, but I believe that, as I remember it, the
Clean Water Act was dealing with pollution and was concerned
with pollution to the navigable waters to the United States and
there was nothing in the legislative history and certainly
nothing in the language of the Clean Water Act that would make
reference to the migratory birds, and this was a case
concerning jurisdiction that was asserted under the Clean Water
Act. The jurisdiction wasn't asserted under the Migratory Bird
Treaty Act or some other act of Congress.
Senator Schumer. But you said Congress nowhere found. You
meant nowhere in the Clean Water Act, I presume?
Mr. Wolski. That must be what I meant, Senator, nowhere
that was relevant to that particular case, because again, the
jurisdiction that was invoked was the jurisdiction under the
Clean Water Act. It wasn't under some other act.
And on navigable waters of the United States, I understand
those to mean, getting back--I think that was part of your
original question--I understand those to be waters, not only
waters that are navigable, but also waters that are adjacent to
or have some connection to navigable waters. So it is a very
broad jurisdiction.
Senator Schumer. Okay. Thank you, Mr. Chairman.
Senator Chambliss. You know, having practiced law for 26
years and having been involved in any number of trials and
appeals of cases, I have been a little bit frustrated being on
this Committee and having folks look at briefs that nominees
have written over the years. In one case, I remember we went
back as long as 12 years and a phrase was taken out of a brief
that one of our nominees wrote, and I am sure this happened
during the years when we weren't in control or we didn't have a
Republican President, so I am not picking on anybody, but it is
a frustration to me, having practiced law and having taken
positions as an advocate for my client that, number one, went
against any number of precedents that were in case law, and I
don't think it is right to hold somebody accountable to that.
It is all right to hold them accountable or let them
explain what they meant by it, and my question to each of you
is, you have all practiced law or you are practicing law. You
have been in that position before, but the role of an advocate
is distinctly different from the role of a judge. I want to
make sure that we don't have nominees who necessarily have
their minds made up on an issue that they advocated as a lawyer
that they are going to take as a judge, and Judge Carney, I
would like to start with you.
If you will, each of you just comment on that aspect of
your being nominated and confirmed to the bench, with respect
to how you are going to deal with a case on an issue that maybe
you have advocated the other side of. Where are you going to be
with respect to how you decide that case from the bench?
Judge Carney. Well, Mr. Chairman, I don't see my role as a
legislator or as a prosecutor or as an attorney. I am a judge
to make sure that there is fairness in the process and to apply
the law as I understand it from a statute or from what the
Ninth Circuit or the United States Supreme Court has said. I do
not let my personal views get into the picture, and I agree
with your earlier comments as a lawyer, for just to make a
point or make it entertaining, you sometimes say things that
you don't really mean, and I would hate to be held to some of
the things that I have said in the past.
Senator Chambliss. Judge Selna?
Judge Selna. Mr. Chairman, I think there is clearly a
different mindset from an advocate to moving to a judge. I
experienced that transition over the last 4 years and I think
the most significant part of that transition is to listen to
lawyers and let lawyers try their cases. Listen to both sides.
Whether you have dealt with that issue in the past, generally
speaking, having been an advocate, you know that there are two
sides to an issue. You know what arguments the other side will
put forth. I think the role of the judge is to listen and to
make his or her best judgment as to what the correct view of
the law is.
Senator Chambliss. Mr. Wolski?
Mr. Wolski. Thank you for the question, Mr. Chairman.
Certainly, I believe that a judge has an obligation and a duty
to keep an open mind, to not let any positions they have taken
in the past, any arguments, any position they have taken in
argument on behalf of a client in the past, not to allow that
to affect in any way their understanding and their analysis in
a particular case, and that I certainly agree with the
sentiments of my colleagues that that does not play a role in
the judicial function whatsoever. A judge's duty is to follow
the law. A judge's duty is to follow the binding precedents of
higher courts and to put aside any past work they have done,
put aside any past advocacy they have done in fulfilling that
obligation.
Senator Chambliss. Judge Springmann?
Judge Springmann. Mr. Chairman, you are correct that as an
advocate representing your client, that that client expects you
to be passionate in representing their side in a case. But when
you become a judge, you have to set aside passions and, in
fact, become dispassionate when you are interpreting the law.
You have to remain impartial, open minded, and fair for all the
people that come before you in a court so that they can have
confidence in the integrity of the system in which you are as a
trial judge representing. That is not to say, though, that a
judge should not lose all compassion for human frailty when
that becomes an issue in a case.
Mr. Simon. Mr. Chairman, I have spent the last 13 years of
my life as a Federal prosecutor and the last 4 years as the
Chief of the Criminal Division in the United States Attorney's
Office. I have never been a judge and should I be fortunate
enough to be confirmed, I can only promise you, Mr. Chairman,
and this Committee that I will do my level best to be fair and
impartial.
I, candidly, have some concerns of--not that I can't be
fair, I know that I can, but that there may be some perception
that I have spent so much time as a prosecutor, but I am very
confident that over a period of time, that I will be able to
demonstrate that I am a fair and reasonable person and that I
will impartially decide the cases that come before me if I am
fortunate enough to be confirmed.
Senator Chambliss. Judge Williams?
Judge Williams. Thank you, Mr. Chairman. You are absolutely
right that the role of an advocate is very different from the
role of a trial judge. In particular, an advocate has a
responsibility, an ethical obligation to most zealously present
the position of his or her client as possible, and in the
context of zealously representing your client, you should use
every tool at your disposal to make arguments. You should use
rhetoric. You should use the law to the extent that you can.
You are required to under the canons of ethics.
But a judge's role is very, very different. You--I think I
view it as a two-fold role. It is ensuring that the process of
the decision making is fair as well as the decision itself. In
the process side, we are affording every litigant complete due
process, complete fairness, giving them a full opportunity to
be heard, and as one of my colleagues eloquently put it,
listening. That is the biggest thing, is just listening and
making sure you understand.
And I have often in my situation as a trial judge gone into
a case or a trial or an argument thinking one way about a case
and coming out thinking just the opposite way and ready to go
and do my own homework, go back over the briefs, go back to the
library, so that I can come up with my own independent
decision. Thank you.
Senator Chambliss. Thank you. Senator Durbin, we are glad
to have you join us, my friend from Illinois, Senator Durbin.
Senator Durbin. Thank you very much, and I apologize for
coming in a little late with all the things we are trying to
juggle here.
I thank you all for being here, and I would like to ask a
general question. How many of you are members of the Federalist
Society?
[Mr. Wolski raised his hand.]
Mr. Wolski. I am.
Senator Durbin. Mr. Wolski. Is anybody else here a member?
Could you explain it to me for the record, what the--the reason
I ask this is when we map the DNA of Bush nominees for court
positions, we always come across the Federalist Society
chromosome in so many of them and I am just trying to get to
the bottom of this, about what it is that makes Federalist
Society membership an important consideration with some
nominees, and perhaps, for the record, if you could explain to
me how you view the Federalist Society and its philosophy.
Mr. Wolski. Certainly, Senator. On the penultimate question
that you asked, I am the pickee, not the picker, so I really
couldn't say why the administration chooses to nominate certain
people and not others.
But on the first question, as to what the Federalist
Society is, it is an organization, primarily a student
organization, although there are also lawyer chapters, which
has open forums and debates and sponsors speakers on a wide
range of issues that relate to the Constitution, issues that
relate to the legal process.
When I was at the University of Virginia School of Law, I
was the President of the Student Chapter of the Federalist
Society there and we had a number of very good events. They
were well attended by people from all political walks of life
and all thought, very well attended, debates on topics such as
the constitutionality of certain activity--I actually can't
remember what--well, let me see, it must have had something to
do with--well, let us put that one aside. And then we had a
debate on drug legalization, for instance. We had a debate on
the Ninth Amendment and whether it means anything. The Society
tends to look at--and sponsor debates and look at issues often
in the perspective of the historical role of the Constitution
and what the Framers were doing when they put it together, and
that is I think as best as I can explain it.
Senator Durbin. I know where I would put the ACLU in the
political spectrum. Where would you put the Federalist Society?
Mr. Wolski. I would be reluctant to try to characterize it
as one sort of group or another. It is not--it doesn't take
positions on political issues. It doesn't take positions on
legal or constitutional issues, for that matter. So since it is
a group that doesn't take positions and doesn't litigate,
doesn't get involved in advocating one position or another, I
don't really think you could do that.
Senator Durbin. You have been rather outspoken. I think
some of my colleagues have already questioned you about your
pride and your ideology, your political ideology. In fact, I
think you were quoted in the National Journal as saying you
have--you would like to take that quote back, wouldn't you?
[Laughter.]
Senator Durbin. You are quoted in the National Journal as
saying you are always looking for jobs that let you further
your ideological--I don't want to misquote you, but could you
tell me what you said to the National Journal and then if you
would like to explain it.
Mr. Wolski. I wish I could remember with certainty what I
said.
Senator Durbin. I could probably find it in these notes.
Mr. Wolski. Well--
Senator Durbin. Go ahead. Give it your best.
Mr. Wolski. As I explained earlier to the previous Senators
who were here, the question was--
Senator Durbin. Go ahead.
Mr. Wolski. The question, I believe, that was posed to me--
I guess to actually put things in context, the National Journal
piece in question, I think, is from the ``Hill people'' special
issue that comes out every 2 years that does a profile of the
new Congress, what committees each member is assigned to, and
talks about Committee staff and does a little profile on each
committee.
And in the profile on the Joint Economic Committee, they
had a--I think it was one paragraph about me that primarily
talked about my tax work and how the work I do for Senator Mack
is tax oriented. And the person who was interviewing me asked
me, why was I willing to relocate from California to come to
D.C. to work for a Senator from Florida, and the answer I tried
to express, again, was--I may not have used the best words. I
am not sure that that was a precise and accurate quote, but it
certainly has been reported, so I will stick with that quote.
All that I meant to convey was that the sort of jobs that I
had taken since college have not been ones designed to try to
earn the most money. Unlike my friends out of the Wharton
School, I didn't try to get a job on Wall Street and make a lot
of money. I was the first person in my family to go to college,
and my mother is the granddaughter of Lithuanian immigrants. My
dad is the son of Lithuanian immigrants and--
Senator Durbin. Are you trying to get on my good side here?
[Laughter.]
Mr. Wolski. and I understand that you might have
something--
Senator Durbin. Someone has done some homework for you.
Mr. Wolski. It is one of the--the DNA of the Senators that
we do before we come.
[Laughter.]
Mr. Wolski. But no, in all seriousness, Senator, I had an
opportunity that my parents didn't have. I was able to go to
college. I was able to go to law school. And I believe very
strongly that people should give something back to their
community. People should try to make society better and take
advantage of the opportunity that they have had to do that. And
all that I meant to express was the type of jobs I had had were
public sector job and nonprofit jobs, jobs that related to tax
policy.
The use of the word ``ideological,'' if that is what I had
said, I wasn't trying to characterize myself as an ideologue
because I think people who know me and know my record know that
I am open minded, that I am not rigid. When I worked for
Senator Mack, it was on a bipartisan basis on a number of tax
issues that had support widely across the aisle, things like
the low-income housing tax credit, the D.C. Economic Recovery
Act.
Senator Durbin. What about this whole takings question? If
you are going to argue for ideology under law, that seems to be
a ripe issue for the conservative right, this whole question of
takings. And you have had quite a few cases, have you not,
involving this issue?
Mr. Wolski. I guess six, seven, 8 years ago when I worked
at the Pacific Legal Foundation, I did--I was a member of the
Property Rights Section and I had a number of cases involved in
that section that involved takings. Typical clients included
Bernadine Suitum. I don't know if you are familiar with her
Supreme Court case, but she was an elderly lady who had a plot
of land in a fully developed subdivision in Incline Village,
Nevada. Hers was the last plot that hadn't been built on. She
wanted to build a house on it and she was told that, because of
the regulations, she couldn't build anything on it.
So she tried to get into court and sue for just
compensation since she couldn't make any use at all of her
property. And the argument was raised that her claim wasn't
ripe yet, because while she couldn't make any use of her
property, under the regulations, she could transfer to somebody
else the right to make more extensive use of their own
property, and that, therefore, her case wasn't ripe because she
could still help somebody else out. That was used to kick her
out of court.
I did a petition for writ of certiorari to the United
States Supreme Court and the Supreme Court granted the case,
reviewed the case. I didn't do the argument before the Supreme
Court, but we--Mrs. Suitum won nine-to-nothing, again, a
unanimous opinion written by Justice Souter said that she could
have her day in court.
One other case I did in the land use area was for
Montereyans for Affordable Housing, which is a nonprofit
organization that was challenging a procedural hurdle that was
put in their place that would prevent rezoning--actually, it
wouldn't prevent rezoning. It made it very difficult in
Monterey to rezone land to allow apartments to be built. If
somebody wanted to do that, they had to first get the city
council approval, then they had to go put it on the ballot
themselves, pay for the election, and win an election just in
order to have apartments. As I said, I represented an
affordable housing group and we got that law struck down. That
is the sort of work that I did.
Senator Durbin. Were you primarily representing property
owners who were resisting either government regulation or
government taking?
Mr. Wolski. No. Actually, in the takings context, a lot of
the cases would be seeking just compensation. It is--resistance
is futile, I guess, after a certain point and you have got to
choose whether you are going to seek compensation or not. In
the Court of Federal Claims, for instance, the cases that are
brought under the Takings Clause are people who accept as given
the law or the regulation or the government decision that
restricted the use of their land and accept that as proper and
don't challenge the purpose, don't challenge the legitimacy of
that action, but instead say the impact on this has been so
great as to require just compensation under the Constitution.
Those are the sort of cases--
Senator Durbin. You mentioned the Pacific Legal Foundation.
Is that connected at all with the Federalist Society?
Mr. Wolski. I am sure that there are probably members of
the staff of the Pacific Legal Foundation who might also be
members of the Federalist Society. When I was a staff attorney
at Pacific Legal Foundation, I had also joined the Sacramento
Chapter of the Federalist Society and I know that there were at
least a few others who were.
Senator Durbin. So let me ask you this question. The Court
of Claims deals with takings and environmental issues and you
will come now to a position where you will be sitting in
judgment. You have prided yourself on your political beliefs,
political philosophy, political ideology. Should I not have
some concern as to whether or not you are going to be
dispassionate and objective when it comes to this Court of
Claims position or whether you are bringing a political agenda
to this position?
Mr. Wolski. I appreciate that question, Senator, and I
think the answer is no, actually, and the reason why I think
you shouldn't be concerned is taking the broader perspective of
my career, looking at everything that I have done, not just
what--not just a job that I took as a young lawyer right out of
my clerkship seven, eight, 9 years ago, but look what I have
done over the whole breadth of my career, the bipartisan work I
did for Senator Mack on things like the low-income housing tax
credit, the sort of cases that I have litigated over the last
few years.
I represent a class of Medicare beneficiaries who are suing
the tobacco industry, trying to get reimbursement to the
Medicare Trust Fund for smoking-related illnesses. I represent
the State of Nevada in its efforts to resist the placement of
the nuclear repository in Yucca Mountain. So I have represented
governments, I have represented the Governor of Puerto Rico, I
have represented the interests of government in a number of
cases, as well, and I think I have demonstrated that I am a
person who can see things fairly and does understand and
appreciate the importance of government.
Senator Durbin. Thank you, Mr. Wolski. I may have a few
written follow-up questions, and to the other nominees who are
before us, let me thank you for your patience. You come with
great recommendations.
I would just say, if I might, Mr. Chairman, by way of
closing, that this last weekend, I was privileged to join a
group of my colleagues from the House and Senate to travel to
Alabama with Congressman John Lewis. Some of you know John
Lewis, from Atlanta, Georgia, is one of the real heroes of the
civil rights movement. He was, as a young man, marching across
Edmund Pettis Bridge in Selma when that terrible bloody Sunday
occurred.
John took a group of us, a bipartisan group, down to
Alabama. For me, it was the first time to visit the State, and
we went to Montgomery and Selma and Birmingham. We went to the
corner where Rosa Parks got on the bus and refused to give up
her seat and we marched across the Edmund Pettis Bridge and we
went to the 16th Street Baptist Church in Birmingham where the
four little girls were killed by the bomb.
It was a moving experience for me. At my age, this was a
formative part of my life and my values, the civil rights
movement, and to see it firsthand and to meet the people
involved in it made a difference.
At one point while we were traveling, I talked to John
Lewis about how it all worked out, ultimately it worked out.
There is still a lot to be done, but ultimately, it worked out.
The civil rights movement was successful in passing historic
legislation. And he said to me at one point, there never would
have been a march from Selma to Montgomery if there wasn't a
Federal District Court judge named Frank Johnson. Frank Johnson
from Northern Alabama, a Republican appointee under President
Eisenhower had the courage to stand up to the establishment, to
the State courts, and to many of his Federal judges and to say,
we are going to put an end to this discrimination once and for
all.
As a result, he was threatened, his life was threatened,
his mother's home was under protective surveillance for years
and he was shunned by the society he lived in. When he passed
away a few years ago, the tributes and praise were universal
from everyone who looked back and said, this one Federal
District Court judge changed history in America.
And it was a reminder to me as I sit in this Judiciary
Committee and see literally scores of candidates come through
here that you never know which one of you, if you are fortunate
enough to come to the bench, will have that moment, that
opportunity in history. And I hope, as I hope that the Senator
and myself will have the courage to see that moment and to
seize it, even if it is unpopular, that each of you will have
that wisdom, too.
Thank you very much. Thanks, Mr. Chairman.
Senator Chambliss. Thank you, Dick. I hope you held your
hand over your heart as you flew over Georgia on the way to
Selma.
[Laughter.]
Senator Chambliss. I am not a member of the Federalist
Society, but just like Senator Durbin, I have heard that an
awful lot during the hearings that we have had and I have heard
Senator Hatch, who is a member of the Federalist Society,
delineate exactly what the Federalist Society is. And while
some want to paint a different picture, the fact of the matter
is that the Federalist Society is a mainstream organization
with no articles of faith or litmus test. Members range from
pro-choice to pro-life, from those who believe in the original
meaning to those who focus more on precedent and evolving
tradition.
The Federalist Society has hosted speeches by the likes of
Justice Stephen Breyer, Alan Derschowitz, Kathleen Sullivan,
and Nadine Strossen, among others. The Federalist Society has
also received the input and praise of such noted liberal legal
scholars such as Harvard Professor Lawrence Tribe, Chicago law
professor Martha Nusbaum, and Yale law professor Ian Ayers,
among others.
So I do not believe the Federalist Society membership
should disqualify anyone from the Federal bench anymore than an
ABA membership should. I always appreciate all of our
questions, but that one does seem to come up an awful lot.
I am sorry my friend Senator Schumer is not here, but he
made the comment about Republican judges seeming to decide
cases differently from Democratic judges. But as I look at this
group, we have got some Republicans here. Mr. Wolski, your
statement that you have been asked about a number of different
times, you state in there that you are a Libertarian. I had a
Libertarian opponent in my last election, and Judge Williams, I
understand you are a Democrat and that you actually were
considered for this position by the Clinton administration. Am
I correct in that?
Judge Williams. Yes, Mr. Chairman, I was. I didn't get
quite this far there, but I am told I did get pretty far along
in the process.
Senator Chambliss. Well, we have got a good bipartisan
group of nominees is my point, and I will tell you that as a
former lawyer, I would certainly look forward to practicing
before each and every one of you.
We are going to conclude this panel. The process will
continue. We are going to move to the next panel and we
appreciate each of you being here today to provide us with your
testimony. Thank you very much.
Judge Carney. Thank you, Mr. Chairman.
Judge Selna. Thank you, Mr. Chairman.
Mr. Simon. Thank you, Mr. Chairman.
Judge Springmann. Thank you, Mr. Chairman.
Judge Williams. Thank you, Mr. Chairman.
Mr. Wolski. Thank you, Mr. Chairman.
[The biographical information of Judge Carney, Judge Selna,
Mr. Wolski, Judge Springmann, Mr. Simon and Judge Williams
follow:]
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Senator Chambliss. I thank my former colleague over on the
House side. Ruben Hinojosa is here, and Ruben, we look forward
before this next panel is seated to you coming forward and
making some comments about a nominee that I know you have an
interest in. We are glad to have you here, Ruben, if you will
just have a seat right there in the center. I will tell you
that Senator Hutchison and Senator Cornyn have already spoken
and gave accolades with respect to Mr. Hinojosa. By the way, is
he kin to you?
PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED
STATES SENTENCING COMMISSIONER BY HON. RUBEN E. HINOJOSA, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Representative Hinojosa. Not yet.
[Laughter.]
Representative Hinojosa. Mr. Chairman, I am pleased to have
the opportunity to introduce a gentleman from the great State
of Texas, U.S. District Judge Ricardo Hinojosa, who has been
nominated to serve on the U.S. Sentencing Commission. I want to
thank Chairman Hatch and Ranking Member Leahy for having given
me this opportunity to address the Senate Judiciary Committee,
and furthermore, I wish to acknowledge and thank you for
allowing me this opportunity. I wish that Senator Durbin could
have stayed just a few more moments so that he could have
learned about this great gentleman that I am introducing.
Judge Hinojosa is one of the most highly respected Federal
judges in the State of Texas. He is a judge who is fair and
impartial. Since 1983, he has served as the United States
District Judge for the Southern District of Texas. A graduate
of Harvard School of Law, Judge Hinojosa has been active in the
legal community, serving on the Committee on Defender Services
of the Judicial Conference of the United States, the Magistrate
Judges' Committee of the Judicial Council of the Fifth Circuit,
and the Judicial Liaison member of the Texas State Bar Board of
Directors.
He has combined his service to the law with his outstanding
service to his local community. He has served as Chairman of
the Board of Regents of the University of Texas-Pan American
and as Chairman of the Texas Commission on the Bicentennial of
the United States Constitution.
As you know, the U.S. Sentencing Commission is a unique
body charged with establishing sentencing guidelines for those
individuals convicted of Federal crimes. Judge Hinojosa's
recent position as a member of the American Law Institute
Advisors Group to the Model Penal Code Sentencing Project has
given him experience and insight into the challenges that the
Sentencing Commission faces in recommending policy.
Born and raised in South Texas, I have known Judge Hinojosa
for over 20 years. Although we are not related, he grew up in
my wife's hometown, Rio Grande City. I have always found him to
be tough, but fair, in his judicial decisions.
In closing, I wish to say that, as I am sure you are aware,
Judge Hinojosa's nomination has the strong support of Senator
John Cornyn and Senator Kay Bailey Hutchison. Without any
reservations, I strongly recommend Judge Ricardo Hinojosa. This
country will be well served if Judge Hinojosa's nomination is
approved by your committee.
Thank you again for allowing me the privilege of testifying
on behalf of this outstanding American, and I welcome any
questions that you might have.
Senator Chambliss. Well, thank you very much, Congressman
Hinojosa. Coming from you, that is a strong recommendation in
my book and we look forward to the nominee coming forward and
speaking and having an opportunity to ask questions.
Representative Hinojosa. Thank you, sir.
Senator Chambliss. Thank you very much.
Representative Hinojosa. Thank you very much for the
opportunity and I look forward to visiting with you again.
Senator Chambliss. We will now ask that Judge Hinojosa and
Mr. Horowitz come forward, please. Before you take your seats,
if each of you will raise your right hand, please.
Do you solemnly swear that the testimony you are about to
give before this Committee shall be the truth, the whole truth,
and nothing but the truth, so help you, God?
Judge Hinojosa. I do.
Mr. Horowitz. I do.
Senator Chambliss. Thank you. Let me ask each of you if you
have any opening statement you want to make or if you have any
family or friends here that you want to recognize. We certainly
want to give you the opportunity to do that. Judge Hinojosa?
STATEMENT OF RICARDO H. HINOJOSA, NOMINEE TO BE UNITED STATES
SENTENCING COMMISSIONER
Judge Hinojosa. Senator, thank you very much. First of all,
I don't really have an opening statement, but I do want to
thank the President for this nomination and this Committee for
this hearing. I do want to thank Senators Hutchison and Cornyn
and Congressman Hinojosa for their nice remarks this afternoon.
I do have in the audience today a Godchild of mine, Emily
Williford [ph.] from Austin, Texas, who is presently working
here in Washington, D.C., and I appreciate her showing up here
this afternoon.
And there is another person in the audience I would also
like to thank and that is Ms. Sheila Joy, who works with the
Justice Department, and 20 years ago, she held my hand through
the nomination and confirmation process. She has done it again
this year and she has done it throughout this period of time
for all these administrations and for all these people that go
through this process and she makes it a lot easier and I
appreciate her help.
Senator Chambliss. It sounds like she is your good luck
charm.
Judge Hinojosa. I hope so. And I also want to thank the
people I work with who I believe are listening and possibly
watching as we are having this hearing. Thank you very much,
Senator.
Senator Chambliss. Thank you.
Mr. Horowitz?
STATEMENT OF MICHAEL E. HOROWITZ, NOMINEE TO BE UNITED STATES
SENTENCING COMMISSIONER
Mr. Horowitz. Mr. Chairman, I do not have an opening
statement. I want to echo what Judge Hinojosa said. I am
certainly honored that the President has nominated me. I am
honored that the Committee is having this hearing.
I do have some family members with me that I would like to
introduce to the committee. With me is my wife, Alexandra, my
mother, Ann, who came from Florida, and my mother-in-law,
Sandra Kaufman [ph.], and my father-in-law, directly behind me,
Charles Kaufman [ph.], so hopefully, he won't throw anything at
me during the hearing.
[Laughter.]
Senator Chambliss. All right. Great. We are happy to have
all of you here.
Mr. Horowitz, let me start with you. You have served for
many years as a prosecutor, first in the U.S. Attorney's Office
for the Southern District of New York, then in the Criminal
Division of the Department of Justice. I understand that you
now work for a major law firm and engage in criminal defense
work. What is your view as to the general appropriateness of
the sentencing guidelines and what perspective will you bring
to the Sentencing Commission as a former prosecutor who now
does defense work?
Mr. Horowitz. Well, Mr. Chairman, I believe that the
experiences I have had, first as a law clerk and then as a
prosecutor for 11 years, representing clients who have been
under investigation, both before I became a prosecutor and
since, will hopefully give me a breadth of experience in
viewing the guidelines, in looking at them. The Commission has
right now an interesting array of experiences among their
Commissioners. There are a number of judges. and hopefully, I
can add to that through the perspective of my experience.
I know, as you know, the current head of the Criminal
Division, Mike Chertoff, who I work for, as well as his
predecessor, Jim Robinson, who I worked for, both served as
defense lawyers and as prosecutors and U.S. Attorneys and I
think it does allow you to look at problems from a big picture
and understand from all sides of the issue what these
guidelines mean and how they should be considered and applied.
Senator Chambliss. Judge Hinojosa, as a sitting Federal
District Court judge, you have been called upon to apply the
sentencing guidelines countless times. I am sure you have also
gotten earfuls from many of your colleagues about the
guidelines. I know you have gotten an earful from those of us
who did defense work from time to time. What is your view as to
the general appropriateness of the sentencing guidelines, and
specifically, do you think it works well or does it work most
of the time?
Judge Hinojosa. Senator, I guess I am one of the group that
gets smaller as each year goes by that actually has done
sentencing both under the old system as well as under the
guidelines system. From 1983 to 1987, I actually sentenced
individuals under the old system, and I have to say that I find
the Sentencing Commission guidelines very helpful for the
system.
Under the old system, we would spend a lot of time, or at
least I did, trying to figure out what I had done with a
particular kind of case and a particular kind of defendant with
certain characteristics that were similar to the present
defendant and the amount of drugs involved in a drug case, for
example, and trying to make things work on in an equal fashion
and in a fair fashion. So you would spend a lot of time trying
to go back, trying to find other cases that you had worked on
and sometimes talking to other judges about the same kind of
cases.
Under the guidelines, we have a totally different system
because, as you know, the Commission guidelines set the
procedure and the parameters that the judges are to follow. And
I have to say that I find them helpful because, in many ways,
they basically have the same factors I used to consider myself
when I had to make a decision with regards to a particular
sentence as far as the role in the offense of an individual,
the involvement in the crime itself, in a drug case, for
example, the amount of drugs, whether there was a firearm
involved and the relevant conduct involved and acceptance of
responsibility, all these factors that are put into the
Commission guidelines which makes us think about these in every
single case and I find them to be helpful.
Senator Chambliss. Do you think the guidelines give you
enough flexibility? That was a question that I raised a lot of
time with judges, and I didn't do an extensive amount of
Federal criminal work, but I occasionally did and the
guidelines--I practiced under the old system as well as under
the guidelines themselves, just like you having been on the
bench, and I sometimes had a problem with the judge not having
flexibility, particularly with a defendant or an accused who,
in trying to negotiate some sort of settlement of the case,
there just--the judge's hands were somewhat tied. Have you ever
been in those kind of positions, where you didn't feel like you
had enough flexibility?
Judge Hinojosa. To some extent, I guess in some cases, you
might feel that way, Senator, but I have to say that within the
guidelines themselves, there are a lot of fact findings that a
judge has to make that give you the discretion within the
guidelines themselves, and, of course, in the very unusual
situations where someone is cooperating with the government, as
you well know, the government can file a motion to depart based
on cooperation and assistance. I say unusual, which really it
is not, because that does happen and it is a tool that is used
to help make bigger cases.
In the situations where one finds that it is totally out of
the heartland of the cases, a judge has the opportunity to
depart. In the Koon case, the U.S. Supreme Court certainly
gives a judge an opportunity to do that.
Senator Chambliss. Let me ask to both of you, do you
believe that a member of the Sentencing Commission should
implement the sentencing guidelines in a way that he or she
believes that Congress would have intended even if the member
disagrees with that Congressional intent? Is there any question
in your mind about that?
Mr. Horowitz. No question about that at all.
Judge Hinojosa. I do feel that part of the responsibility
of the Sentencing Commission is to look at the directives from
the Congress, sir.
Senator Chambliss. Okay. Would you agree with me that the
central premise of the Sentencing Reform Act was to create
uniformity of sentences and try to eliminate disparities in the
sentences handed out by different judges for similar offenses,
and do you think that is a fair and desirable goal?
Mr. Horowitz. Mr. Chairman, I do believe that eliminating
the unwarranted disparities that existed before the system was
put in place is the correct goal of the guidelines and would
certainly be part of my responsibility in serving in this
position.
Judge Hinojosa. I agree with that also, Senator, and I
think that is the reason that the Congress saw fit to create
the United States Sentencing Commission, because there was a
viewpoint from all segments and members of Congress that that
was important, and I think that is the viewpoint of the public
in the United States.
Senator Chambliss. Gentlemen, let me assure you, the fact
that none of my colleagues are here in no way diminishes what
we know to be the importance of the job to which you have been
nominated. You both have the kind of experience and you
obviously, from just looking and talking to both of you, you
have the right kind of temperament to be confirmed for this
position. So let me assure you that we take this seriously. We
know you are going to take your job seriously and we appreciate
very much you being here today and sitting through the previous
panel and having a little patience with us to do that. So thank
you very much for being here and thank your family members for
being here, also.
[The biographical information of Judge Hinojosa and Mr.
Horowitz follow.]
Senator Chambliss. I would like unanimous consent to insert
Senator Hatch's statement for the record, and without
objection, that is done.
I would also like to insert into the record statements from
Senator Leahy and Senator Boxer.
I announce to all of my colleagues on the Committee that
the record will remain open until 5:00 p.m. one week from
today, Wednesday, March 13, for anyone to submit additional
questions or additional matters for the record. Excuse me, I
said the 13th. The 19th. The record will remain open until the
19th.
This hearing is concluded. Thank you.
[Whereupon, at 4:00 p.m., the Committee was adjourned.]
[Additional material is being retained in the Committee
files.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE FOR THE
FIFTH CIRCUIT; RICHARD D. BENNETT, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF MARYLAND; DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF LOUISIANA; J. LEON HOLMES, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS; SUSAN G. BRADEN,
NOMINEE TO BE JUDGE FOR THE COURT OF FEDERAL CLAIMS; AND CHARLES F.
LETTOW, NOMINEE TO BE JUDGE FOR THE COURT OF FEDERAL CLAIMS
----------
THURSDAY, MARCH 27, 2003
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 3:07 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senators Cornyn, Sessions, and Leahy.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. The Senate Committee on the Judiciary on
judicial nominations will come to order. It is my pleasure to
be chairing this and I am certainly pleased to be with the
ranking member, Senator Leahy, on this important occasion. We
have a number of distinguished members who are here before us
who I know are on tight schedules. We are here, of course, to
consider the nominations of Edward Prado, to be a United States
Circuit Judge for the Fifth Circuit; Richard D. Bennett, to be
United States District Judge for the District of Maryland; Dee
D. Drell to be United States District Judge for the Western
District of Louisiana; J. Leon Holmes, to be United States
District Court Judge for the Eastern District of Arkansas;
Susan Braden, to be Judge of the Court of Federal Claims; and
Charles F. Lettow, to be Judge of the Court of Federal Claims.
Senator Leahy and I have both agreed that we will reserve
our statements, in the interest of time, and because we know
our colleagues who are here to introduce these judges are on a
tight schedule, themselves.
We will, in the order of seniority, recognize Senator
Sarbanes for his introduction.
PRESENTATION OF RICHARD D. BENNETT, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND, BY HON. PAUL SARBANES, A
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Sarbanes. Mr. Chairman, Senator Mikulski and I are
pleased to be here to present Richard Bennett to the Committee.
Understanding the press on your time, I will try to be brief.
But let me say it is a pleasure to appear today on behalf of
this distinguished member of Maryland's legal community.
Dick Bennett was educated in Maryland at the Severn School
in Severna Park. Actually, he is now on the Board of Trustees
of the school. He went to the University of Pennsylvania, where
he had high academic honors and was also honorable mention All-
Ivy League Lacrosse. That may not mean much to you, but it
means a lot in Maryland, I want you to know.
[Laughter.]
Senator Sarbanes. And then he went from the University of
Pennsylvania to the University of Maryland School of Law, where
he was on the Maryland Law Review.
I am not going to go through all of his legal background.
He has been associated with three Baltimore law firms, two very
large ones. He is now a partner at Miles and Stockbridge, which
is one of our leading law firms. But early on in his legal
career, he went into the U.S. Attorney's Office as an Assistant
U.S. Attorney and worked there for a little more than 4 years.
This was not too long after he graduated from law school.
At the same time, he was in the Army, the U.S. Army, and
then in the Army Reserve and subsequently in the Maryland
National Guard, serving in the Adjutant General's Division. He
rose to be a major in the National Guard.
I just want to mention a couple of things about him because
he came back to become the U.S. Attorney for the District of
Maryland and to serve with distinction in that office. We have
had a string of very good U.S. Attorneys in our State and Dick
was certainly among the top of the group. In fact, he is now on
the Board of Directors of the National Association of Former
U.S. Attorneys, which is obviously some recognition with
respect to his abilities on the part of his peers.
I want to mention for just a moment his political
involvement. That may sound a little strange here, but I think
it is important. It helps to make a point I want to make.
He went on the Baltimore City Republican Central Committee,
which is kind of a lonely place, I have to say, to succeed Fred
Motts, who became a U.S. District Judge and just stepped down
as the Chief Judge not too long ago of our District Court. In
1982, he ran for the Maryland State Senate, was defeated. In
1994, he was the Republican candidate for Attorney General.
That didn't prove out. And in 1998, he was a candidate for
Lieutenant Governor. In a way, I think we may have done him a
favor in those elections. Otherwise, I am not sure he would now
be here to be a Federal District Judge.
The important point I want to emphasize, though, is I
respect this political involvement on his part. It was always
done in an honorable way. As is important in our system, he was
contributing to the functioning and the workings of our
political democracy. I have known him a long time. We have been
on opposite sides of the political fence, but I certainly
respect him personally and professionally and I believe he will
make a good Federal District Judge.
We have a very good bench in our State and we are very
proud of it. We work very hard at trying to protect its
quality. Dick Bennett, I think, reflects the respect for
others, an open mind. I think he will be fair. I think he will
hear people out. He has had extended trial experience. He is
really a very experienced litigator, much of it in the Federal
Court. So he knows the workings of the Federal Court and he
knows how the system operates and I think he will be a very
effective judge.
He has taken a strong interest in our community. He has
been on the Board of Directors of the Kennedy Krieger Institute
in Baltimore, one of the leading institutions in the world
dealing with the problems of disabled children.
So I am pleased to come today to speak on behalf of someone
with whom I contended politically over the years, but for whom
I have a high regard and whom I am convinced will make a very
fair and honorable Federal District Judge. I very much hope
that the Committee, after hearing him out, will see fit to
report him favorably to the United States Senate. Thank you
very much.
Senator Cornyn. Thank you very much, Senator, for those
comments.
Senator Mikulski, we would be delighted to hear from you.
PRESENTATION OF RICHARD D. BENNETT, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MARYLAND, BY HON. BARBARA MIKULSKI, A
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Mikulski. Thank you very much, Mr. Chairman and
members of the Committee. I am here today to really
enthusiastically support the nomination of Dick Bennett to be a
Federal District Court judge in Maryland.
I sat at this table in 1990 to support his nomination to be
the U.S. Attorney under President Bush's dad, and I will tell
you, as U.S. Attorney, he did not disappoint us. He was an
outstanding U.S. Attorney and the way he conducted himself,
conducted the office, and brought honor and integrity to the
U.S. Attorney's office.
When I look to how am I going to support a Federal judge, I
have three criteria: Judicial competence, highest integrity,
and demonstrated dedication to protecting core constitutional
values and guarantees. Dick Bennett is more than well qualified
in all three of those areas. He has been recognized as one of
the best trial lawyers in America. He has received numerous
awards from professional legal organizations. And at the same
time, he has been honored for his work in the field of victims'
rights, so he brings balance.
In terms of integrity, he has decades of community service
that Senator Sarbanes has talked about. He served for 20 years
in the Army National Guard.
When you look at his family background, you will see that
he is a product of the greatest generation. He dad was an
electrician. His dad fought at Okinawa and then came home to
raise a family, and his mom was a school teacher. Mr. Bennett
put himself through law school by coaching sports at a local
Catholic high school. So it has been just hard work,
dedication, values around patriotism, and then really
developing outstanding skills as a lawyer.
I am just going to submit my statement for the record.
Senator Sarbanes covered it, and I note others.
When you have got someone who was honored by the Maryland
State Attorneys' Association, by getting an award from a
Democratic Governor for his work on victims' rights, for also
being a volunteer at a soup kitchen, and found time to be a
U.S. Attorney, to be a dad. I think this is the kind of person
we want, and his peers say this man is tough, fair, balanced,
and one smart lawyer, and I think he will be a terrific judge.
Senator Cornyn. Thank you very much, Senator Mikulski and
Senator Sarbanes, for your introductions. We appreciate that
very much.
I know that a number of members both on the Senate side and
the House side have other conflicts. I am trying to accommodate
your schedule the best I can. I know, Senator Bingaman, I know
you have a pressing engagement elsewhere, but we would be
delighted to hear from you and any comments you might have.
The Chairman. Mr. Chairman, before he starts, I just
couldn't help but notice all the Senators here endorsing
President Bush's nominees. They are all Democrats. It is just
somewhat unusual because we so rarely were able to get a lineup
like that when President Clinton was here for Republicans to
endorse his nominees. I am glad to see bipartisanship is back.
Senator Cornyn. It is refreshing. I am happy, as you are,
to see such consensus selections and such bipartisan support.
Senator Bingaman?
PRESENTATION OF SUSAN G. BRADEN, NOMINEE TO BE JUDGE FOR THE
COURT OF FEDERAL CLAIMS, AND CHARLES F. LETTOW, NOMINEE TO BE
JUDGE FOR THE COURT OF FEDERAL CLAIMS, BY HON. JEFF BINGAMAN, A
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Bingaman. Thank you, Mr. Chairman. I will be very
brief, but enthusiastic, in speaking on behalf of two of the
nominees, the two nominees before you today for the U.S. Court
of Federal Claims, Charles Lettow and Susan Braden.
Chuck Lettow and I became acquainted--he and my wife and I
became acquainted when we were all in law school at Stanford
over 35 years ago. He is a superb lawyer. He has been with the
Cleary Gottlieb firm for over 25 years. He has had raw
litigation experience. He clerked for the Supreme Court and for
the Court of Appeals before that. His reputation as a lawyer,
as a litigator, as a fair, balanced, even-handed individual, I
think, is unparalleled. So we are very fortunate to have him as
a nominee for this position.
Susan Braden, I have also known for a long time, not as
long as I have known Chuck, but she is also extremely
accomplished and respected in her field. She has over 30 years
of litigation experience, both in the Federal Government and
the private sector. She is now with Baker and McKenzie,
practices in antitrust, intellectual property, tax and property
rights areas, and specializes in complex civil litigation. She,
again, is an extremely qualified nominee for this important
position.
I commend both nominees to the Committee and I urge you to
act favorably upon them and do so quickly. Thank you very much
for allowing me to speak today.
Senator Cornyn. Thank you very much, Senator Bingaman. We
appreciate your testimony here today.
Since we have such a distinguished panel and I know
everybody has got various other pressing engagements, I
understand Congressman Tauzin has an appointment at 3:30.
Senator Landrieu, would you mind if we turn to our colleague
from the House first?
Senator Landrieu. Go right ahead.
Representative Tauzin. It is not necessary. I always yield
to my colleague.
Senator Landrieu. Ooh, he is being so nice today.
[Laughter.]
Senator Landrieu. Thank you, Mr. Chairman.
Senator Cornyn. We would be delighted to hear from you,
Senator.
PRESENTATION OF DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF LOUISIANA, BY HON. MARY LANDRIEU, A
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Landrieu. I will just be very brief, and I thank
the Congressman. I will submit this statement on behalf of
actually Senator Breaux and myself and the Congressman will add
his own personal words. But we are all pleased to be here today
to really enthusiastically support this nominee, Dee Drell, for
the Western District.
Dee has practiced law for over 30 years. He started out as
an Advocate General for the Corps with the Army and then spent
30 years with the Gold law firm. But his career has not only
spanned 30 years, Mr. Chairman, but he has done almost every
aspect or practiced every aspect of law from criminal
prosecution to criminal defense, insurance defense, plaintiffs'
work, and has a wide array of other litigation cases.
In addition to this broad and very deep understanding of
the law, he has also served his community in many special ways.
I particularly was impressed with his commitment as a lay
preacher with the Episcopal Church in his home district, as
well as volunteering a great many hours to the Louisiana Task
Force on Racial and Ethnic Fairness in the Courts. He is a
board member for the Family Mediation Council, which I think is
also very impressive as we try to keep our families together
and strengthen them and minimize the conflict in divorce and
separation. I think that goes a long way.
He stepped out, Mr. Chairman, many years ago, before we
really had come together as a community to understand how to
advocate for those stricken with AIDS and spoke out in this
community and advocated for their legal defense and their fair
shake under the law.
With that, I will submit the rest of my statement. His
wife, Susannah, is here, and I know Congressman Tauzin joins me
in saying how pleased and proud we are to support someone with
such excellent legal credentials, but also has shown such a
compassion and a heart for the people that he represents and
seeks to serve. Thank you.
Senator Cornyn. Thank you, Senator Landrieu. We will
certainly make your statement, as well as Senator Breaux's in
support of this nominee, part of the record, without objection.
Congressman Tauzin, we would be delighted to hear from you.
PRESENTATION OF DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF LOUISIANA, BY HON. BILLY TAUZIN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA
Representative Tauzin. Senator, thank you and greetings
from the Governor. I have to tell you, I recently had the
pleasure of cooking him a gumbo at his mansion in Austin, and I
am becoming an honorary Texan, I think.
[Laughter.]
Representative Tauzin. Let me thank Mary and John for their
excellent statements in support of our candidate, Dee Drell. He
is truly, as Mary said, a remarkable individual.
How many nominees do you find who have practiced both as
trial attorneys and as defense council for insurance firms, and
criminal defense, as well? His background is truly extensive in
that regard. It includes, by the way, service in the United
States Army in the JAG Corps, stationed in Fort Benning.
He and Susannah are the proud parents and even grandparents
now of three children and two grandchildren. They are sort of
the rock-bed people you want to live next door to, just great
individuals, dedicated to his work and service to the bar and
to legal counsel.
Mary has articulated some of the most, I think, sterling
qualities about Dee personally, and that is his commitment to
community, his work with his church and his work for those less
fortunate, his defense of indigents in his community on the
Indigent Defender Board, his work with the AIDS victims in his
community and their legal rights, and his work for families in
trouble and trying to help them out through difficult times.
He has got what we would all want in a judge if we were
ever called before the bench, and as someone who knows the law,
loves the law, respects it, and at the same time has a sterling
heart and understands human nature. He is the kind of person, I
think, that the Senate will feel extraordinarily proud the day
you bring him up and vote him into the membership of the United
States District Courts.
He is going to make our State proud, too. We produce some
pretty interesting and very dramatic personalities in our
politics, but we also produce some incredible jurists. He would
be one of those. I predict that once you take our
recommendation to heart and act on it and the Senate acts on
it, that there will be a day when you look back on this and
say, boy, that was a good move we made because we put a great
person on the Federal bench who is going to serve this country
well and be a model for other jurists around the country.
I really feel good about this nominee. Our whole delegation
worked hard in selecting him. We work as a team, Democrats and
Republicans, when we make our nominations, and as you can see
with John and Mary's support, that is evident here today. We
hope that you will act speedily on his nomination and present
him to a life of service on the Federal bench. Thank you.
Senator Cornyn. Thank you.
Senator Leahy. Merci. Merci.
Representative Tauzin. I don't talk French any more,
Senator.
[Laughter.]
Representative Tauzin. In fact, I apologize for the fleur
de lis on my tie today.
Senator Leahy. You never spoke it very well to begin with.
[Laughter.]
Representative Tauzin. Well, I didn't speak that real
French. We speak a Cajun variety.
Thanks again.
Senator Cornyn. Congressman Tauzin, thank you very much. We
appreciate your appearance here today and your contribution on
the House side and certainly here today, as well. Thank you.
Representative Tauzin. Thank you very much.
Senator Cornyn. I would be delighted to hear from our
colleagues from Arkansas. Senator Lincoln, we would be
delighted to hear your testimony.
PRESENTATION OF J. LEON HOLMES, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON. BLANCHE LINCOLN,
A U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Lincoln. Thank you, Mr. Chairman, and I will try to
be brief, as well. To the Chairman and members of the Judiciary
Committee, I certainly appreciate the opportunity to appear
before you this afternoon to introduce Leon Holmes, who has
been nominated to be United States District Judge for the
Eastern District of Arkansas.
As the senior Senator from Arkansas--
Senator Pryor. She likes to rub that in.
[Laughter.]
Senator Lincoln. Well, I am the last of four children. I
never got to be senior anything.
[Laughter.]
Senator Lincoln. I am very pleased to support Mr. Holmes
for this very important post.
We are joined today by his wife, Susan, and two of his five
children, J. Frank and Hannah, and I know they are very, very
proud of their father and I certainly know why, having visited
with him, and I am sure the Committee will be, as well, as they
finish these proceedings.
After reviewing his record and speaking with many of his
friends and colleagues in Arkansas, I can assure the Committee
that Leon Holmes is not only a superb lawyer and a
distinguished scholar, he is also a very trusted friend by
many. They hold him in high regard, and that goes for many
people across our great State.
Mr. Holmes is a native of Hazen, Arkansas, which isn't too
far from my hometown of Helena over in East Arkansas. After
high school, Leon graduated with special distinction from
Arkansas State University in 1973. Not satisfied with only a
baccalaureate degree, he continued his education by earning a
law degree from the University of Arkansas, a master's degree
in political philosophy from Northern Illinois University, and
a doctorate in political science from Duke University.
Leon's professional career is equally as impressive. In
addition to being named as a partner at the law firm of
Quattlebaum, Grooms, Tull and Burrow in Little Rock, Mr. Holmes
has held a variety of positions, including law clerk for
Justice Frank Holt on the Arkansas Supreme Court, also as
assistant professor at Augustana College in Rock Island,
Illinois, and adjunct facility member of the University of
Arkansas at Little Rock School of Law.
Additionally, which I found to be very interesting, you all
may also find as interesting, that while pursuing his
education, Mr. Holmes worked as a door-to-door salesman, a
newspaper carrier, a carpenter's helper, and my favorite, a pea
picker.
[Laughter.]
Senator Lincoln. Well, as a farmer's daughter, let me tell
you, I hold that in great esteem, having worked the land
myself. And I also believe the fact that Mr. Holmes knows the
value of an honest day's work, both as a lawyer and as a
laborer, I think it is a good indication that he has the life
experience required to administer the law in a fair and
impartial manner regardless of who the litigants before him may
be.
Even though Mr. Holmes and I may not agree on every issue,
that is not the only test I apply to determine an individual's
fitness for the Federal Judiciary. I evaluate judicial nominees
based on their willingness to cooperate with the Senate during
the confirmation process. Then in addition, I carefully
consider a nominee's skills, their experience, intellect, and
ability to understand and apply established precedent.
Fundamentally, I am very interested in knowing that a
nominee can fulfill his responsibility under the Constitution
to apply the law fairly, without political favor or bias.
Having visited with Mr. Holmes in my office extensively, I am
satisfied that Mr. Holmes has met that standard.
In closing, I want to thank Chairman Hatch and Senator
Leahy for working with Mr. Holmes and with me and my staff in
preparing for this hearing today. I appreciate the
consideration of this nominee and I encourage members of the
Committee to support his confirmation and do it in an
expeditious way, and I would like to take this opportunity to
congratulate Mr. Holmes and his family for such much in terms
of the achievements they have already made and the many ways I
know that they will make all Arkansans very proud. Thank you,
Mr. Chairman.
Senator Cornyn. Thank you very much, Senator Lincoln.
We would now be delighted to hear from the junior Senator
from Arkansas, Senator Pryor.
[Laughter.]
PRESENTATION OF J. LEON HOLMES, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF ARKANSAS, BY HON. MARK PRYOR, A
U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Pryor. Thank you, Mr. Chairman. It is an honor for
me to be here today and introduce to the Committee Leon Holmes.
One thing I have to disclose on the front end is that I
have known Mr. Holmes since 1986, when I was a summer law clerk
at his law firm of Wright, Lindsey and Jennings in Little Rock.
After I graduated from law school, I joined that firm as an
associate and he and I worked together there until he left a
year or two later. I consider him a friend. He has gained the
reputation in the last several years as being one of the finest
lawyers in Arkansas and I am very, very proud of his career and
very proud to have watched him develop and grow as a person and
as a lawyer over the years.
There is no question in my mind that Leon is very qualified
for this position. Also, I have no question and no doubt about
the fact that he will be fair and impartial. I have talked to a
number of lawyers in Arkansas. They are very pleased with
President Bush's selection here. There are a lot of lawyers and
a lot of people in the State that may not agree with him
completely on some issues, but they certainly feel like he is
qualified to be on the bench, he will set his personal feelings
aside, and he will administer justice fairly and impartially.
Whenever you talk to lawyers in Arkansas about Leon Holmes,
there is one word that keeps coming up. First, they always say
how smart he is and how hard he works and just what a decent
human being he is. But the one word that keeps coming up is
``integrity,'' and he has it, and I am very proud that
President Bush has nominated him and I am proud to support his
nomination today. Thank you.
Senator Cornyn. Thank you, Senator Pryor, and thank you,
Senator Lincoln. We are glad to have you here today.
Chairman Hatch, who was not able to be here, does have a
written statement for the record which will be entered in the
record, without objection, as does Senator Grassley supporting
Charles Lettow. Senator DeWine has a statement supporting Susan
Braden. Senator Hutchison has a written statement concerning
Judge Edward Prado and Susan Braden, as well. It is without
objection, each of those will be entered in the record.
PRESENTATION OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FIFTH CIRCUIT, BY HON. JOHN CORNYN, A U.S. SENATOR FROM
THE STATE OF TEXAS
Senator Cornyn. I am happy that Chairman Hatch has asked me
if I could help fill in today to chair this proceeding for many
reasons, but especially because of my admiration for and
support for President Bush's nomination of Edward Prado to the
U.S. Court of Appeals.
I have known Ed and Maria and their son, Edward, for many
years, since we are natives of San Antonio, Texas, and I can
say that in the years that Ed Prado has served on the bench,
first as a State District Court judge and in recent years as a
United States District Court judge, he is an exceptional jurist
and I am confident he will continue to serve with great
distinction on the Fifth Circuit Court of Appeals.
There are actually three vacancies on the Fifth Circuit,
and two vacancies from Texas, alone. President Bush has
nominated Priscilla Owen to fill one of the others and her
nomination was acted on favorably by the entire Judiciary
Committee this morning and will now be reported to the floor.
The Judicial Conference has designated both of these
vacancies on the Fifth Circuit as judicial emergencies. The
American Bar Association, which has sometimes been referred to
as the gold standard, has unanimously rated Judge Prado ``well
qualified,'' a rating that he is certainly deserving of.
So I look forward to today's hearing and my hope is that
Judge Prado's nomination will be acted on favorably not only by
the entire Judiciary Committee, but then he will be swiftly
confirmed and will be serving soon on the Fifth Circuit Court
of Appeals.
Prior to his service, or, I should say, after he served on
the State District Court bench, Ed Prado served as a public
defender in the Western District of Texas and then as U.S.
Attorney from 1981 to 1984. He is a graduate of the University
of Texas, receiving both his undergraduate and law degrees
there, and started his career as an Assistant District Attorney
in Bexar County, of which San Antonio is the county seat, and
also served in the U.S. Army Reserves from 1972 to 1987.
Throughout his two decades of service, both to the State of
Texas and to the nation while in the Federal system, Judge
Prado has served with compassion, respect for the law and for
the lawyers and litigants who come before him, and, I might
add, with good humor, something he is especially noted for. His
courtroom demeanor not only has served to help put litigants,
witnesses, and jurors at ease, which is an important
characteristic of a trial judge, but it has not detracted from
the appropriate seriousness of the proceedings in which he has
presided.
Those same characteristics, each of those characteristics,
I am confident, would serve him well in his new role in the
Federal Judiciary on the Fifth Circuit. Obviously, he would be
interacting not only with counsel, but with his colleagues on
the court and with others who come in contact with the court,
should he be confirmed.
I urge all the members of this Committee to give Judge
Prado favorable consideration.
At this point, I am going to withhold any further sort of
general statement and ask the ranking member, Senator Leahy, to
make any remarks that he may wish to make. Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. We kind of have to
be here, but our colleagues wanted to leave, so I wanted to
give them a chance to speak first.
This is our sixth Judiciary Committee hearing for the 29th
judicial nominee held in the last 2 months. We have moved
expeditiously. We have confirmed 11 judicial nominees, a couple
more next week, which will bring us to about 15. I commend my
colleagues on the other side of the aisle, because I remember
the last time the Republicans were in the majority in the first
session of a Congress, they didn't confirm 15 judges until
September. In fact, they didn't have the sixth hearing until
the end of October. It is probably coincidence that there was a
Democratic President at that time and that is why it took until
September to get 15 judges, a Republican President now, and I
just mention that for whatever it is worth.
I am pleased to see a new nominee from Texas to the Fifth
Circuit, Judge Prado, and I have read with a great deal of
interest his background, especially a couple of the trials he
held. It has been a long time since we have had a Latino
nominee to the Fifth Circuit. I think it was Chairman Biden who
had the last nomination, and that was for Judge Benavides 9
years ago.
Of course, President Clinton did nominate two talented
Hispanic nominees to vacancies in the Fifth Circuit, Enrique
Moreno and Judge Jorge Rangel, and you were referring to the
ABA. They had the highest possible ratings, but it wasn't that
they got voted down, they just never had a hearing. They never
had a vote, never had a hearing. Actually, there was a third
nominee of President Clinton's to the Fifth Circuit, Alston
Johnson of Louisiana, with strong support of both his home
State Senators, but he was never allowed to have a hearing,
either.
I mention this because sometimes there is a question of how
hearings go. None of these Fifth Circuit nominees were ever
allowed to have hearings. There are a lot of others. Ricardo
Morado was never given a hearing, Christine Arguello another.
Judge Richard Paez, Sonia Sotomayor, and Hilda Tagle were held
up.
We have tried to do different here. In fact, in 17 months
when I was Chairman, we whipped through about 100 judges,
setting an all-time record, an all-time record at least during
the last two Presidencies.
So I congratulate you, Judge Prado and the others. Judge
Ruben Castillo, who is a U.S. District Court judge in Illinois
and a member of the Sentencing Commission, speaks very highly
of you, and he came in and told me that. I have a high regard
for him, so I was pleased with that. The Congressional Hispanic
Caucus is impressed with you, sent the Committee a letter
supporting your confirmation.
Then we have the three District Court nominees, Richard
Bennett, Dee Drell, and Leon Holmes. Mr. Holmes' record does
leave me with some concern, and I will submit a number of
questions for the record. I know it was, Mr. Chairman, when
your party controlled this Committee during the Clinton
Presidency, we were told that if you had somebody with a record
of activism like Mr. Holmes, that they would not be allowed to
have a hearing, and your side was always very consistent on
that. They didn't.
I take that back. There was one of Senator Specter's former
aides who said she was an activist, Mary McLaughlin, and made
her really fight to get out of Committee. But then, of course,
an anonymous hold was put on by your side, so she was never
allowed a vote. Apparently, it appeared that in private
practice in a firm in Philadelphia where they handled pro bono
cases, she dared to handle one involving choice issues. I don't
think anybody is going to do that on Mr. Holmes, but I am sure
we will be told if we do that we are resorting to inflammatory
rhetoric.
I mention this because there seems to be very, very much of
a double standard. We have two more of this President's
nominees to the Court of Federal Claims. As I explained at our
last hearing, appointments to this court have--I have been here
with six Presidents--have always had a tradition of bipartisan
cooperation. Federal Claims have had a certain number of
Democrats, a certain number of Republicans. The first time--I
have been here with President Ford, President Carter, President
Reagan, former President Bush, President Clinton, now this
President Bush.
All the other Presidents always followed what had been the
practice for Presidents long before I came here of having that
accommodation and compromise, both parties. This has not been
here. For more than 2 years, Republicans blocked President
Clinton's appointment, Larry Baskir, until a compromise could
be reached. They refused to give him a hearing, refused to
allow any other vacancies to be filled until the administration
promised to keep conservative Judge Loren Smith as the Chief
Judge.
Finally, Senator Hatch agreed to allow President Clinton's
nominees to have hearings and votes if the administration named
a staff member of his to the court. Shortly after President
George Bush was inaugurated, he removed the court's chief judge
and installed Senator Hatch's staff member as the new and
current chief judge. It may be fine and all that, but it is
different than the way it was done.
Last fall, the Democrats were in the majority. We took the
exceptional action of moving the nomination of Larry Block,
another staff member for Senator Hatch, to the Court of Federal
Claims at the request of the ranking Republican, even though it
was a turn for a Democrat. We thought we would have some kind
of bipartisan fairness. We didn't get it. In fact, Judge Sarah
Wilson, who was serving with distinction on the Court of
Federal Claims, well respected, talented lawyer, graduate from
Columbia and so on, was bounced out by the President and Senate
Republicans refused to accommodate a request to consider her
nomination for a continued position there.
I say this because we see the same thing with respect to
the Sentencing Commission, Parole Commission, and others, and I
worry that we are allowing that kind of accommodation, the kind
of bipartisanship that usually moves things along very well,
something I tried to do by setting a record, I don't think
during the 6 years that the Republicans controlled this
Committee and President Clinton was there, I don't think there
was ever a time in 17 months when they moved as many judges as
I did for President Bush. They certainly didn't for the 17
months prior to me taking over. We thought there would be some
recompense, but there has not been.
I will point out what Senator Sessions, who is here, and
Senator Grassley have argued, that vacancies on courts such as
the D.C. Circuit remain open due to the enormous costs that are
involved in filling that position.
Senator Sessions. That still may not need to be fully
filled.
Senator Leahy. I believe their report was that it costs
about $1 million per judge. The Washington Post wrote today the
Court of Federal Claims should be eliminated altogether. They
do have a case load that is about an eighth that of the
District Court.
So I just mention that. It is funny how some of these
things that are raised, depending upon who is in the White
House, suddenly change. I would urge the White House and
Chairman Hatch to work with us to assemble the type of
bipartisan panel that Senator Hatch helped assemble in 1997 and
1998 when President Clinton was there to fill the remaining
vacancies that showed balance.
I am hopeful by nature. In my faith, we always believe in
redemption. In this Lenten season, I just pray for such
redemption, Mr. Chairman. Now that the white-haired group have
taken over the thing, I will leave you to your own devices, but
I will submit a number of questions for the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Cornyn. Thank you, Senator Leahy.
I want to recognize Senator Sessions in just a moment, but
your comments do provoke a few thoughts of mine that are not
new--
Senator Leahy. I thought they might.
Senator Cornyn. --not new to you, since we have discussed
them previously. I must tell you that for somebody who is new
to this institution, but somebody who has been in public
service before at the State and local level, I really think
that the judicial confirmation process needs some serious work.
I think we need a fresh start.
I do not see that we are doing the job that we should be
doing for the American people in a bipartisan way by pointing
to past grievances on both sides, and I realize that for every
one that Republicans might point to, Democrats would point to
some that they perceive as being wrong. I really would not--and
I am sure it goes both ways--I would not really want to make
any judgment about that because, frankly, I think there is
nothing that I could say or that anybody else could say that
would probably convince either side that they are wrong.
All I would say is that as somebody who is new to the
Senate and somebody who is an eternal optimist, as you are--I
think you have to be an optimist to be in public life today
because you have to look for opportunities toward the future
and hope rather than get bogged down into the sins of the
past--that we could, on a bipartisan way, come up with some
process that would be a tremendous improvement over the current
judicial confirmation process.
I think the depths to which the process has sunk at this
point is really one that does not reflect well on this
institution. I don't think it serves the interests of the
American people well. I think it also does not serve the people
who are nominated by the President, whether they be a
Republican or a Democrat office holder, well. I think it
probably discourages people who are nominated or who might be
nominated to serve in these important positions when their
nominations are left pending for so long or when, as you point
out, they don't get a vote, an up-or-down vote either in the
Committee or, as we see now, on the Senate floor in the case of
Miguel Estrada.
I wish, and this is maybe just an expression of my
hopefulness and my optimism, that we can look beyond what has
happened in the past and look forward and try to find a way
that we can do the job that we have been elected to do here in
the Senate better than we have done in the past.
I understand, since you have been here longer than I have,
much longer, you have a knowledge and an experience that I do
not have in terms of how the process has worked in the past,
but I would, rather than look to the past, I would look to the
future as an opportunity to perhaps break with that past to the
extent that this process has not served the American people or
the United States Senate very well.
Senator Leahy. Mr. Chairman, if I could just respond to
that very briefly, the Senator from Texas comes from a great
State. He has one of the finest backgrounds of any Senator
here, having served in all three branches of government and
having done that with distinction. I mean that very seriously
and I think he is a welcome addition to the Senate and improves
the gene pool to the extent that we have that. And again, I
mean that very seriously.
I take to heart what he has said. I find myself in
agreement with almost all of it, or probably all of it. The
only thing I would look to for the past is it has been my
experience, and my experience with five of the last six
Presidents of both parties, that there was always an effort, a
real effort on the part of the White House to work with both
parties in the Senate when it came to judicial nominations.
In talking when I was first here with Senators, again from
both parties, who had been here at that time a long time, they
told me that had always been their experience. At that time,
when I was first here at the age of 34, some of the much older
ones at that time had served in the time of President Truman
and said that through all those Presidents, Truman, Eisenhower,
Kennedy, Johnson, Nixon, there had always been this effort on
judicial nominations.
I could say honestly that this White House, there has not
been that effort, and I think that if there was, I think that
there would be, certainly among the Senators in both parties
who care, as the Senator from Texas obviously does, there would
be a response to it in such a way that most of these problems
would not exist, and I have discussed this with a number of
senior members of the Senator's party as well as senior members
of my party who are no longer here, who have just observed it
from the outside. They all feel the same way.
I pass that on because I share his hope that that may
change, but it is a change that has to come from both ends of
Pennsylvania Avenue. It can't be simply a case of dictating.
The Constitution does say ``advise and consent,'' not ``advise
and rubber stamp.'' I think it could be better, especially as I
find with our personal friendships. The Senator Alabama, who is
here, and I are not ideological soul mates, but time and time
again, we have accommodated each other on things of interest to
each other because we realize that life has to go on.
I pass that on. We are waiting to talk to these nominees,
and I would be glad to work with the Senator from Texas in the
future on this.
Senator Cornyn. Thank you, Senator Leahy. I appreciate
that. I will take you up on that.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Senator Leahy, I would nominate Judge
Cornyn. Maybe we can nominate Judge Cornyn and find him a
partner and lead us out of this thicket, smooth over some of
the difficulties we have had.
Senator Leahy. If you didn't have white hair before, you
would after that.
[Laughter.]
Senator Sessions. I would just like to say in brief
response that in President Clinton's administration, there were
377 judges confirmed, only one voted down. None were ever
filibustered on the floor. None were ever voted down in
Committee on a party-line vote. And when he left office, there
were only 41 nominees left pending unconfirmed. When former
President Bush left office and the Democrats controlled the
Senate, there were 54 nominees unconfirmed.
I think the record is--there has been far too much
criticism of the Republican record on confirmation of President
Clinton's judges. The numbers do not justify that. But we can
discuss that, and maybe it is time for us to see if we can
reach some more harmony. Judge Cornyn, I nominate you to maybe
lead us into a more happy day.
Senator Cornyn. Thank you for your vote of confidence,
Senator Sessions. I appreciate that. It is my hope that we can
do better than we have in the past.
The Committee will now hear from Judge Edward Prado of San
Antonio, who has been nominated to the U.S. Circuit Court for
the Fifth Circuit. Judge Prado, if you come forward, and if you
would please raise your right hand before you sit down so that
I can administer the oath.
Do you swear that in the testimony you are about to give
before the Committee, you will tell the truth, the whole truth,
and nothing but the truth, so help you, God?
Judge Prado. I do.
Senator Cornyn. Thank you. Please have a seat.
Judge Prado, if you would like to give an opening statement
or introduce perhaps your better half or any other friends or
supporters you have here with you, please feel free to do so.
STATEMENT OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT
Judge Prado. Thank you, Senator, and thank you for the
opportunity--thank the Committee for the opportunity of
accommodating us today and hearing us. I know that the Senate
has a very busy schedule this week, a hectic schedule, and I
know I speak for the other nominees and we appreciate you
taking the time to accommodate us and giving us the opportunity
to appear before the Committee today.
With me today is my wife of 29-and-a-half years, my best
friend, the judge at home. She is the one that wears the robe,
Maria Prado. Some dear friends from the Administrative Office
of the Courts, the Chief of the Defender Services Division of
the Administrative Office of the Court, Ted Lidz, two of my
dear friends that are in that office with him, Merrill Friedman
and Dick Wolfe, and also from the Administrative Office,
Richard Jaffee is here and I appreciate them coming over.
I would like to also recognize our son, who is not here
today. He is in college and could not be here, Edward. He is
here in spirit. Hopefully, he is hitting the books and
studying, as well.
Also, my parents who could not be here. My father, who is
87 years old, my Little League coach, my soccer coach, disabled
veteran from World War II and past President of his DFW Post,
and up until last year, he was still driving to the bingos and
helping run the bingos at his DFW Post every night. My mother,
who is 84. She was my Den Mother when I was a Cub Scout, was
PTA President when I was in elementary school, was PTA
President when I was in high school. So I would like to
recognize my parents who have done a lot for me and I
appreciate it.
Senator Cornyn. Thank you, Judge Prado.
[The biographical information of Judge Prado follows:]
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Senator Cornyn. Since you and I know each other very well
and have for, as best I can figure, about the last 23 years--
Judge Prado. I won't tell on you if you won't tell on me.
[Laughter.]
Senator Cornyn. I want to recognize Senator Sessions, I
guess, for any questions he may have at this point and I will
reserve.
Judge Prado. Senator Sessions and I also go back a long
way. We were part of the Department of Justice and we were U.S.
Attorneys in our respective divisions some time back.
Senator Cornyn. That is what I hear, so he may have some
questions for you.
Senator Sessions. Judge Prado, it is a delight to see you
in this position. It was all of us in the U.S. Attorney team
who were so happy when you were appointed to the District
bench. I can say without hesitation, Senator Cornyn, that there
were none of the 94 United States Attorneys better liked and
more respected than Judge Prado and it was a real day of
celebration when he ascended to the bench and left the pit of
the United States Attorney's Office. He did a great job as
United States Attorney and I really--he was well known for
that. So I salute you and congratulate you, Judge.
I notice you have written about the courtroom and
technology. I go back to my old courtroom in Alabama now and
they have got it wired and Assistant United States Attorneys
are using all kinds of things. Do you think that is helpful,
and what can we do to improve technology in the courtroom?
Judge Prado. I am fortunate enough that the Administrative
Office of the U.S. Courts has its national training center for
judges in San Antonio and Federal judges from around the
country come to San Antonio for computer training. As part of
that program, they were able to put all sorts of technology in
my courtroom. We have real-time instant transcript for the
lawyers, videotaping ability, videoconferencing ability,
Internet access and computers for the lawyers. It has really
made trials easier, quicker. The juries understand. The lawyers
are able to make their presentations through use of the
technology and get their points across a lot easier and I think
it has really helped the justice system having all this
technology that makes it easier for everyone.
Senator Sessions. Judge, one thing that I think is
important to the democratic process, since you will be, I am
confident, receiving a lifetime appointment, will not be
subject to the voters or the public in any way, do you have a
philosophy that properly respects the democratic branches of
government that pass the laws and make the laws? I know Judge
Paez was brought up. I was concerned about that. I voted for
cloture and voted against his confirmation, but he had written,
well, judges have a right to act when the legislature fails to
act. It is incumbent on judges to act, he wrote, and that
troubled me.
Do you think, Judge, that the judicial branch is bound to
the orthodox interpretation of language in statutes and that
they should not reach beyond that to impose personal views
through the court?
Judge Prado. Senator, the law means what it says. It should
be clear on its face what it means. We as judges are called
upon to interpret the law. We are not there to set our judgment
as to what is right or wrong. The laws are there to decide what
is right and wrong and we are not there to clean up everything
that we perceive as being wrong. That is not our
responsibility. Our responsibility is to interpret the law as
best we can that has been passed by the Senate, signed off by
the President. Two branches of government had decided this is
the law and we are, as judges, are bound to follow that law
unless it is clear to us that for some reason that law is
unconstitutional and violates the Constitution.
I have always given due deference to laws passed by
Congress and assumed that when the House of Representatives,
the Senate, and the President have said that this is the law of
the country, that myself as a District judge should give due
deference to that law, and unless it is clear on its face to me
that I am convinced that it is unconstitutional, I will follow
the law as it was intended to be followed by Congress and the
President.
Senator Sessions. Thank you, and I think that is correct.
In fact, I believe we are in some ways maybe having more of a
confirmation and a deeper understanding of that, maybe not in
this Senate, but I believe among the Bar as a whole, people are
realizing that a lifetime-appointed judge must be neutral on
political issues and it must be an arbiter of the law as
written, and that does mean sometimes you may have to declare a
statute unconstitutional. If it violates the Constitution, that
is following the law. We do need to show restraint, I think.
One more question. You have been a District judge now for a
number of years. Do you have any thoughts about being a Circuit
judge and some things you might be different than you have been
subjected to over the years?
Judge Prado. I think I will be more sympathetic and
understanding of what took place at the District Court level,
and I think that is what I bring to the Circuit Court. Nineteen
years ago--19 years and one week ago, I had my confirmation
hearing before this Committee for my District Court bench, and
so it has been 19 years that I have sat there and I think I
bring the practical experience of a trial judge to the Circuit
Court and that will be invaluable experience that enables me to
better understand what took place on the District Court level
to determine if it was appropriate or not, and I think that
experience that I have is going to be invaluable to me on the
Circuit Court.
Senator Sessions. I think it will, too. Judge,
congratulations. I think your integrity, your work ethic, your
commitment to America are going to stand you in good stead. I
know you are going to be a great judge on the Court of Appeals
and we are proud of you.
Judge Prado. Thank you.
Senator Cornyn. Thank you, Senator Sessions.
Judge Prado, I, of course, know you appreciate the
important distinction between your role as a trial judge and
the role that you will now serve when confirmed as an appellate
judge. I have heard appellate judge defined as a person who
hides in the hills while the battle rages below, and when it is
over, swoops down to shoot the wounded.
[Laughter.]
Senator Cornyn. Seriously, how do you regard the difference
in the way that you will approach your job as a District judge
with the collegial decision making process on an appellate
court, where you will be a member of a panel, perhaps, in an en
banc court?
Judge Prado. It will be different, but I think my
experience in different avenues is going to be invaluable. I
talked with Senator Sessions about my experience on the
District Court level, but having been an assistant Federal
public defender and attempting to defend people in Federal
Court was a humbling experience. Then running the U.S.
Attorney's Office and seeing it from the avenue was very
valuable. The short time I was on the District Court bench, the
short time I was an Assistant District Attorney on the county
level, bringing all those avenues of experience to the Circuit
Court, I think is going to be invaluable.
It will be a different job, dealing with--trying to work
with other judges in reaching a decision. You won't be seeing
as many people. It certainly will be a more isolated position.
But I am looking forward to the challenge of doing something
different and using all this experience I have to try to make
as good a decision as I can on the cases that will be coming
before me as a Circuit judge.
Senator Cornyn. Thank you, Judge. I don't have any more
questions myself personally, but as you can imagine at this
time in our Nation's history, there is a lot going on here in
Washington and particular here at the U.S. Senate. I know there
are other members of the Committee who would like to be here
today that are unavoidably absent who may want to submit
questions to you in writing, and so the record will be left
open for that process.
But unless we have any further questions today from Senator
Sessions, then we thank you for being here and would be glad to
excuse you at this time.
Judge Prado. Thank you.
Senator Sessions. Congratulations.
Senator Cornyn. Now, the Committee will hear from Richard
D. Bennett, nominated to be the United States District Judge
for the District of Maryland; Dee D. Drell, nominated to be
United States District Judge for the Western District of
Louisiana, which is within the Fifth Circuit; J. Leon Holmes,
nominated to be U.S. District Court Judge for the Eastern
District of Arkansas; and Susan G. Braden and Charles F.
Lettow, who have both been nominated to serve as judge on the
U.S. Court of Federal Claims.
Before we get started, ladies and gentlemen, if you would
please raise your right hand so you can be sworn.
Do each of you swear that the testimony you are about to
give before this Committee is the truth, the whole truth, and
nothing but the truth, so help you, God?
Mr. Bennett. I do.
Mr. Drell. I do.
Mr. Holmes. I do.
Ms. Braden. I do.
Mr. Lettow. I do.
Senator Cornyn. Thank you very much. Please, have a seat.
If any of you would like to give an opening statement or
introduce any family member or friends who have come here to
support you here at this hearing, I know that joining the
bench, ascending to the bench, as sometimes people refer to it,
is a momentous event in the career of any lawyer and certainly
I am glad that those of you who have been able to do so have
brought friends and family with you to observe this hearing and
to celebrate this important milestone in your career.
I would like to go ahead and first recognize Mr. Bennett
for that purpose, for any statement you might have or any
introductions you might like to make.
STATEMENT OF RICHARD D. BENNETT, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MARYLAND
Mr. Bennett. Thank you, Mr. Chairman. I would first like to
thank President Bush for nominating me for this position and I
certainly want to thank the strong support I have received here
today from my two home State U.S. Senators, Senator Paul
Sarbanes and Senator Barbara Mikulski. I am, indeed, humbled by
their comments.
My family, due to the confusion between yesterday and
today, is not able to be here. My wife, Jane, daughter Ridgely,
daughter Lizzy, and son Craig cannot be here. Particularly
Craig is disappointed because he was able to cut classes
yesterday for college, but I said 1 day is enough, so he is
back up at college. My sister, Jackie, and particularly my
mother, Mary Lou Bennett, to whom Senator Mikulski made
reference earlier today. Today is her 85th birthday, so I will
be with her later and would like to pay tribute to my mother on
her 85th birthday.
I thank you, Mr. Chairman.
Senator Cornyn. Very good. Thank you, Mr. Bennett.
Mr. Drell?
STATEMENT OF DEE D. DRELL, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF LOUISIANA
Mr. Drell. Thank you, Senator. I want to, first of all,
acknowledge the presence of my wonderful wife, Susie, who is
right behind me here, literally standing or sitting behind me
on purpose. She and I have been married for 33 years and we
have three great children who could not be here. We had some
friends here, as well, but they had to unfortunately fly home
today.
I have three wonderful children, as I said. Brad, my won,
is an attorney, as well. He is back home holding down the fort
at the firm, fielding my phone calls. I have another child who
is in the--at the University of Texas in Austin, I might add,
and my daughter graduated from there and is actually doing
graduate work at LSU. So we have lots of connections there.
I want to also express my gratitude to the President for
the nomination, for the Congressional--to the Louisiana
Congressional Delegation for its support.
And I want to just say one other thing, and that is that I
really--I had occasion to visit some folks ta a newspaper not
too many moons ago and they asked me my impressions about the
process for being nominated as a District judge, and the first
words I could think of were that I was very pleased that the
process really had a lot of integrity, and I mean that
sincerely. I have been very pleased to see the manner in which
I have been dealt with through certainly kindness,
understanding, and I am most appreciative of being here today.
Thank you.
Senator Cornyn. Thank you, Mr. Drell.
You and Mr. Bennett have both alluded to the fact, I
believe, that we were supposed to proceed at a different time
for this hearing and had to reschedule because of what is
affectionately called the vote-a-rama during the budget
resolution at which the Senators were required to vote every
ten minutes on numerous amendments offered to the budget
resolution, and so we appreciate your understanding of that and
your flexibility.
One of the things I have had to learn, being new to the
Senate, is that once you become a member of the Senate, you no
longer have any control whatsoever over your schedule, and so
you are experiencing perhaps what Senators experience on a
daily basis and it can be a little disorienting at times, but
we appreciate your patience and your understanding on behalf of
all your families and those who would have loved to have been
here but cannot be here now.
Mr. Drell. Thank you.
Senator Cornyn. Mr. Holmes?
STATEMENT OF J. LEON HOLMES, NOMINEE TO BE DISTRICT COURT JUDGE
FOR THE EASTERN DISTRICT OF ARKANSAS
Mr. Holmes. Thank you, Senator. I want to introduce my wife
of 31 years, Susan, who is with me here. Two of our children
are here, Hannah and J. Frank. Also with me is my secretary
from my law firm, Lisa Cox, and Lisa tells me that she has met
you, Senator Cornyn, when she worked for John Casey, and she
refers to you as Justice Cornyn, so--
Senator Cornyn. I am known by many names and titles.
Mr. Holmes. It is always with great respect and affection
in the way that you--in the kind and respectful way that you
introduced yourself to her when you met her in John Casey's
office when she was employed there.
I do have a son who is married and has three children and
lives in Michigan. They could not come. I have a son who is
married and has two children and lives in the great State of
Wisconsin. I have a daughter who is in college and as we speak
is in Austria studying, I hope.
I want to thank Senator Tim Hutchinson for submitting my
name on a list to the President of the United States for
consideration for this position. I want to thank the President
for nominating me. And I do know that before the nomination,
the President consulted with Senator Lincoln and with then
Senator-elect Pryor and spoke with both of them before I was
nominated, and it was before Senator Pryor was sworn in, and
they both told him that they would support me and I very much
appreciate their gracious and enthusiastic support through this
process and the words that they said for me today.
Senator Cornyn. Thank you.
Ms. Braden?
STATEMENT OF SUSAN G. BRADEN, NOMINEE TO BE JUDGE FOR THE COURT
OF FEDERAL CLAIMS
Ms. Braden. I would like to thank the President for this
great honor--
Senator Cornyn. There is a little button there you need to
press. There you go.
Ms. Braden. I would like to thank the President for the
honor of nomination to this interesting and very special court,
and I think one that will be even more important to the country
in the aftermath of the war and in the war on terrorism.
I would like to mention, I was nominated for the seat of
Roger Anderwalt, who was a colleague of mine in the Justice
Department who passed away 2 years ago. We grew up together. We
were friends. We had--our children were in school together.
They were in bar or bat mitzvah classes together. It was very
special to me to be nominated for Roger's seat. I will have a
lot of work to do and big shoes to fill if I am fortunate
enough to be confirmed through this process.
I am very grateful to Senator Sessions and Senator
Hutchinson, Senator Thurmond, who is not here, Senator
Bingaman, all of which wrote letters to help me advance to
become nominated by the President. Senator Cornyn, obviously,
you have been a supporter, and all of their staffs. You know,
the truth of the matter is, without them, all of this would
have never been possible for me. I have had so many people who
have been very helpful and I am very grateful for that.
I would like to introduce my husband who is with me, Tom
Susman, who is the Bruce Willis look-alike over here.
[Laughter.]
Ms. Braden. Tommy is going to have to leave because his
daughter, Shana, is being--getting married, and he is going to
run out of the hearing as soon as this is finished, I think, to
get an airplane to see her. Our daughter, Daley Susman, is a
freshman--a sophomore--excuse me, a junior at Yale, and she is
currently in Madrid studying at NYU abroad for this semester
and I am grateful that she is there and safe. And I am very
grateful for all of you to make this hearing possible today and
the great folks at the Justice Department who helped us
prepare.
Senator Cornyn. Thank you very much.
Mr. Lettow, because of my last name, I am sensitive to
mispronouncing others' last names and I hope I haven't
butchered yours. Would you pronounce it for me?
STATEMENT OF CHARLES F. LETTOW, NOMINEE TO BE JUDGE FOR THE
COURT OF FEDERAL CLAIMS
Mr. Lettow. Mr. Chairman, you have done just fine, in fact,
perfectly. It is Lettow.
Senator Cornyn. Lettow, okay. Very good. Thank you very
much. please proceed with any statement or introductions you
would like to make.
Mr. Lettow. Mr. Chairman, I am especially grateful for the
hearing. I know it has been a difficult hearing for the members
of the Committee and so on, but I am actually very, very
grateful that we are able to appear before you today. I am
especially appreciative of the support of Senator Bingaman. We
have known each other a long time and have been friends
throughout that time. I am also especially grateful for the
support of Senator Grassley, because our families have known
each other also for even longer. And I am very grateful, as
well, for the support of the Virginia Senators, John Warner and
Senator George Allen.
It happens that I am lucky, living in the immediate area,
to have most of my family here. I actually am fortunate enough
to have a bride. We have been married not quite 40 years. It
shows a little bit about my age, but in any--probably hers,
too--
Senator Cornyn. Your good judgment, no doubt.
Mr. Lettow. Well, it has all worked out very well. And my
wife, Sue, is here, and most of our children are here, as well.
Our daughter, who is a law professor in this city, had to
teach class. She teaches criminal procedure, a favorite topic
of hers, and has to teach this afternoon, so she is not here.
Our eldest son, Carl, is here. He happens to be a
litigator. I don't know how he got that particular profession
in mind, but he is a litigator with a firm in the Virginia
area.
Our next son, John, is here. He is a scientist and
engineer. John is accompanied by his wife, Phoebe, who is a
graphic artist. They did not bring along their little son, Eli.
That might have caused a little more disruption to the
Committee than the Committee might want.
And then, finally, our youngest son, Paul, who is in law
school, but this happens to be his spring break, so he is in
quite good shape.
I also have been very fortunate in having had the same
secretary for--I am going to say it, I am not sure she will
appreciate it--29-and-a-half years. Cheyenne Cashin is here,
and she doesn't look like we have been working together for
that long, but she has been of great help to me and my
colleagues.
And I am also very lucky in having one of my colleagues
here with whom I have worked for many years, Matthew Slater,
and he is a fellow who has experience in all three branches of
government and, in fact, served the last administration as the
principal Deputy General Counsel of the Air Force, but has been
a fellow with whom I have litigated cases for a long time.
Senator Cornyn. Thank you very much.
I just have really one question for each of you, and as I
said, you have already been through a very extensive process,
FBI background investigation, thorough vetting by the Justice
Department obviously before the President chose to nominate
you. There has been a thorough investigation of your
qualifications and experience and I commend each one of you for
meriting the confidence of the President for these important
positions that you have been nominated to fill.
I can tell you from personal experience that changing roles
from that of a practicing lawyer to that of a judge is, indeed,
a transformation, certainly a transformation in attitude and
approach because, of course, the role that you will play once
confirmed is different from the role that you have performed in
the past as a practitioner.
But I would just like to ask each one of you to comment in
turn on this question, really. As you know well, the role of
judge in our Federal constitutional system is unique. The
people choose their Representatives in Congress and the
President and Vice President in large part because of their
position on a variety of political issues, both large and
small, and, of course, they are frequently controversial, the
positions that candidates for Congress or the executive branch
may take.
Judges are different. Judges are selected for their legal
skills and for their ability to set aside your personal views
in order to interpret and apply the law as written by others.
What can each of you do to assure this Committee that, if
confirmed, you will be able to put aside any personal views you
may have, whether they be political or just deeply held
personal convictions, on any particular matter and interpret
and apply the law as written by others, whether it be the acts
of Congress or precedents of a higher court?
Mr. Bennett, if you would start with that.
Mr. Bennett. Yes, Mr. Chairman. I just had the privilege of
finishing reading David McCullough's book John Adams and was
greatly moved by the passages there with respect to Chief
Justice Marshall and the ultimate impact of Marbury v. Madison
and what is the judiciary stays out of the political fray and
merely interprets the law.
And having been a U.S. Attorney on one side of the aisle in
the courtroom and then having been an active lawyer on the
other side, having been a counsel to a Congressional Committee
before, I have a strong respect for the judiciary and its role
and that is not to be a super-legislature, and I don't believe
it is the role of a judge to aggressively try to impose his or
her views, but merely to interpret the law, and indeed, to the
extent that judges don't do that, it throws the whole system
out of kilter.
So I think it is very important to observe the fact that
people arrive to this Congress, a strong presumption of
constitutionality should be given to all the laws passed by
Congress and all the emotions that are brought to the floor of
the Congress and it is merely the role of a judge to interpret
the law and apply the law as best he or she can.
Senator Cornyn. Thank you, Mr. Bennett.
Mr. Drell?
Mr. Drell. Thank you, Mr. Chairman. What Mr. Bennett has
said, of course, is correct, and interestingly, I come from the
only what we call civil law State in the Union, Louisiana.
Louisiana has always had the concept that the judge's role was
to interpret the law as written by the legislature. The
legislature has been deemed from the earliest days as the
ground bulwark from which the other part springs, and
interpretation comes second.
The role of a judge is indeed to put one's personal
business aside. The role of a judge is indeed to follow the law
as is proclaimed by the legislature. It is not much different
moving up to a Federal District Court in terms of the way I
understand the role of a judge to be. It comes from that
Louisiana background.
So it is always--it is always possible, of course, for a
judge to think about his or her personal feelings. The key is
the ability to look at both sides of an issue, to be absolutely
fair, to give the deference that is due to the statute, to the
will of the legislature, if you will. And it is not that hard
to do if you take your role and your duty and your oath
seriously. So that is where I come down on it.
Senator Cornyn. Thank you.
Mr. Holmes, I would like to know whether you agree with the
comments of Mr. Bennett and Mr. Drell, but I would also like to
know, if you do agree, why in the world would you want to serve
in a position where you would have to exercise restraint and
you could not, if you were true to your convictions about what
that role as a judge should be, how you could feel like you
have done everything you could in order to perhaps achieve
justice in any given case.
Mr. Holmes. Senator, thank you very much for the question
and for giving me the opportunity to say something about that
topic.
Let me say that, first of all, I know it is going to be
difficult for this Committee to assess that question, and I
know it is a very important question. The judiciary, above all,
needs to be impartial, and it needs to not only to be
impartial, but also to appear impartial.
And the question that you asked really relates to
integrity. It really relates to how seriously do you take your
oath to be a judge and the recognition of the difference
between the role as a judge and the role as a lawyer, an
advocate, the role as a citizen participating in the democratic
process and advocating sometimes views that are controversial
for the sake of what that particular individual believes to be
creating a better and more just society.
I have always taken my obligations very seriously. I
believe that I have the reputation in Arkansas, as reflected by
the support of my Senators and the support that they
reflected--they said that I have from the Bar, of taking my
obligation seriously. One of the obligations that we have as
citizens is to participate in the democratic process and try to
advance beliefs that we think will create a more just society,
and I have taken that obligation as a citizen seriously. I have
taken my obligations as a member of my church, as my faith,
seriously, and all the other obligations that I have done as a
lawyer, I have done that.
I have represented the parents of staff members of both of
my Senators, and so they know how seriously I take my
obligation to represent my clients, and I will bring that same
commitment to fulfill my obligations to the judiciary. I will
honor my oath. I will set aside my personal views. And I will
enforce the law as decided by the Congress, as interpreted by
the Eighth Circuit Court of Appeals and the United States
Supreme Court.
And let me say on that, you asked us, what could we tell
you that would--tell the Committee that would help show that we
can set aside our personal views, and I want to tell you one
thing and then I will pass on. But my uncle, my oldest--my
mother's oldest brother, Morris Greenwald, was a part-time
policeman. When he was the age that I am now, he was murdered
by prison escapees. My wife's oldest uncle on our mother's side
was murdered by prison escapees. For the last 4 years, I have
represented a man who has been twice convicted of killing a
State policeman while he was an escapee for prison. I can and I
will and I have set aside my personal views.
Senator Cornyn. Thank you, Mr. Holmes.
Ms. Braden?
Ms. Braden. I think your question also relates to the
earlier one that Senator Sessions asked in the prior panel,
which is I understand your respect for separation of powers.
The court in which I have been nominated has even more
restricted jurisdiction than my colleagues on the District
Court. We have very limited jurisdiction. And it is also trial
court. So it would be quite unusual for our court, at least, to
have an opportunity to consider a constitutional question.
Perhaps, we were thinking hypothetically, that perhaps in a tax
case. But otherwise, simply, we don't have jurisdiction. That
is the answer to that question.
Certainly, we have no question as trial judges to be other
than totally obedient to the Supreme Court and our Circuit
Court, which is the Federal Circuit. However, I must say that
if I disagreed with a decision of the Federal Circuit in some
respects, having total obedience for the case, I would probably
take the time to put in a paragraph why I would differ, or
perhaps because the court may reconsider the issue in a
different case down the road and may find that perspective to
be helpful. But in terms of the decision before you, I mean, it
is not--it is a non-starter. I mean, it is a total obedience
question.
The last thing I was going to say was, you know, among the
institutions in our government that share high public opinion
is the bench, the judiciary and our Supreme Court. People in
our country believe that our judicial system is fair and the
responsibility for ensuring that that continues rests on our
shoulders for the remainder of our generation to preserve that
for our children.
I would say that one final thing my--I have a relative who
signed the Declaration of Independence, and so I guess it is
something I do think about. He gave his fortune to the army, to
General Washington, essentially, to support his troops, and
died bankrupt because of it. And so I have to think about the
fact that I was given this legacy, the freedom that I share
today to be able to walk up and down the street in this city
and to enjoy the privileges of freedom that we hope to bring to
other nations. So I have got a job to ensure that the judicial
branch continues that reputation in our country.
Senator Cornyn. Mr. Lettow?
Mr. Lettow. I think, Mr. Chairman, there are at least three
things that anyone who is offered or contemplated the task of
being a Federal judge ought to keep in mind. The first, I
think, is certainly to be not only fair and even-handed in
addressing facts and the law, but to be perceived as such. That
just goes without saying. Certainly, one's own attitude and
approach toward that has a lot to do with how the courtroom
actually works, and Judge Prado, who was here earlier, is a
very good example of that. I think he is sensitive to the
people who are in his courtroom.
The second thing is there has to be a sense of equal
justice, that there is justice for each person individually
that is equal.
And third, there has to be a respect for separation of
powers, as Ms. Braden said. I happened to be lucky enough to
clerk for two people who believed quite strongly in separation
of powers, Chief Justice Burger and Judge Dunaway on the Ninth
Circuit, and, in fact, sorted through Chief Justice Burger's
jurisprudence in the context of administrative law in an
article that I had written because he felt so strongly about it
and adopted canons of construction that would enhance or ensure
that that separation was maintained, and certainly the respect
for Congressional enactments through plain meaning and the
Chevron case, for example, in administrative construction, and
I happened to be counsel, not lead counsel, but a counsel in
the Chevron case, so I was particularly happy that that has
been a lodestar for administrative law jurisprudence. Thank
you.
Senator Cornyn. Thank you very much.
Senator Sessions?
Senator Sessions. Thank you, Mr. Chairman. It is a delight
to be with you. To all of you, I say congratulations. You have
gone through, as Senator Cornyn said, reviewed by Senators and
the Department of Justice and the President of the United
States and the ABA, the FBI, and then the people on this
Committee, and don't think they don't scour through everything.
Sometimes, they don't have to find anything, really, to cause a
ruckus. But this time, you have cleared all of those hurdles.
It is a thing to celebrate and I congratulate you for it.
Richard Bennett, good to see you again.
Mr. Bennett. Good to see you again, Senator.
Senator Sessions. You came in as United States Attorney at
the end of my tenure, and Judge Prado came in at the beginning,
and both of you are extraordinary members of that fine group of
United States Attorneys. You had a terrific reputation. I know
the ABA has given you the highest rating and I have the strong
feeling, the support from your Senators, it speaks so well of
you.
Mr. Bennett. Thank you, Senator.
Senator Sessions. Susan Braden, it is good to see you.
Ms. Braden. It is good to see you.
Senator Sessions. I remember when you were battling for
truth and justice for an Alabama corporation and I enjoyed
talking with you about it and seeing your passion for the
employees and everybody involved in that and tried to do
something good, and it almost worked. I really admired you
greatly for that.
Mr. Chairman, I think these are fine nominees. You have
asked an important question and they have answered it
truthfully. Their backgrounds speak for themselves. I have no
doubt that each of them will be tremendous members of the
judiciary.
Senator Cornyn. Thank you, Senator Sessions.
I share your view about each of these nominees and am
hopeful that they will be voted on favorably by the entire
Judiciary Committee when we have that opportunity, hopefully
very soon, and then will be referred to the floor for a vote of
the entire Senate and hopefully confirmed to the important
positions that you have been nominated to serve in.
[The biographical information of Messrs. Bennett, Drell,
Holmes, Ms. Braden, and Mr. Lettow follow.]
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Senator Cornyn. We will leave the record open until 5:00
p.m. on Wednesday, April 2, for any Senators who wish to submit
written questions to any of the nominees appearing before the
Committee this afternoon.
With that, ladies and gentlemen, this hearing on judicial
nominations is now adjourned.
[Whereupon, at 4:37 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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NOMINATIONS OF CAROLYN B. KUHL, OF CALIFORNIA, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT; CECILIA M. ALTONAGA, OF FLORIDA, NOMINEE
TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; AND PATRICIA
A. MINALDI, OF LOUISIANA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF LOUISIANA
----------
TUESDAY, APRIL 1, 2003
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, Hon. Orrin G. Hatch,
Chairman of the Committee, presiding.
Present: Senators Hatch, Sessions, Chambliss, Leahy,
Kennedy, Feinstein, Schumer, and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. All right, we will begin.
It is a pleasure to welcome before the Committee this
morning three exceptional nominees for the Federal bench.
Our circuit nominee is Carolyn Kuhl, who has been nominated
to fill a judicial emergency on the Ninth Circuit, which is the
most notoriously liberal Federal court in the United States.
This is the court that gave us the infamous Pledge of
Allegiance case, which held that the Pledge of Allegiance is
unconstitutional because it contains the word ``God'' in it. As
a result, public school children in nine Western States and two
territories that constitute the Ninth Circuit will be forbidden
from pledging allegiance to the flag of the United States, even
as their mothers and fathers, uncles and aunts, other relatives
and friends are fighting in Iraq to preserve our National
security and the ideals that we most treasure in this Nation.
As my esteemed colleague Senator Schumer put it, this case is
``way out of the mainstream on the left side.''
Unfortunately, the Pledge of Allegiance case is not an
anomaly. Just last month, the Ninth Circuit decided to ignore
and distort controlling Supreme Court precedent in order to
skew the playing field in favor of criminal defendants. The
Court concluded that a key law prohibiting child pornography
was unconstitutional as applied to certain criminal defendants.
Amazingly, the panel handed down this ruling to a defendant who
had knowingly and voluntarily pled guilty to violating the
child pornography law with materials that traveled across State
lines. As a result, child pornographers can flock to the Ninth
Circuit to practice their trade unfettered by Federal criminal
law. As the author of the PROTECT Act and the Comprehensive
Child Protection Act of 2003--bills that will toughen laws
against child pornography, child abuse, and child
victimization--I shudder for the welfare of the millions of
children who live in the Ninth Circuit. Decisions like these
are the perfect examples for why our country needs good,
constitutionalist judges on the Federal bench.
The Ninth Circuit has also held in recent years that
California's so-called three-strikes law, which imposes life
sentences on career criminals, was unconstitutional. It held
that a prisoner who was convicted of making terroristic threats
had a right to procreate through artificial insemination. This
case, which became known as the procreation by FedEx case, was
later reversed by an en banc panel of the Ninth Circuit, but
just barely. Yet another gem from the Ninth Circuit held that
prisoners have a constitutional right to pornography, which had
been banned because inmates had used it to harass women guards.
Fortunately, saner heads prevailed, and this case was reversed
en banc.
Plenty of Ninth Circuit Court opinions and decisions,
however, are not corrected en banc, which has led to the Ninth
Circuit holding the dubious distinction of having the highest
and widest Supreme Court reversal rate in the country among
Federal courts of appeals. Over the past 7 years, the Supreme
Court has reversed an average of 80 to 90 percent of the Ninth
Circuit cases it hears. Just last term, the Supreme Court
reversed the Ninth Circuit in 15 of 19 cases, 8 times
unanimously. And so far in the current term, the Ninth Circuit
has been reversed in 8 out of 11 cases. Three of these were
unanimous summary reversals, which means that the Court simply
reversed on the basis of the petition for certiorari, without
asking for briefs or even oral arguments.
This pattern of decisions, some of which can be described
as downright wacky, and its high reversal rate has led to the
perennial introduction of legislation seeking to split the
Ninth Circuit, given that so many of its States seek to
disassociate themselves from such inherently illogical rulings.
I have taken the time to recite the state of affairs on the
Ninth Circuit in brief because I think that it will benefit
from the confirmation of such an esteemed and experienced
jurist as Carolyn Kuhl, whose record demonstrates her
commitment to following precedent and steering clear of
judicial activism. At the same time, I want to make clear that
I, for one, do not believe that the ideological composition of
a court should have any determination on whether an otherwise
qualified nominee should be confirmed. As I have said before on
numerous occasions, I do not believe that ideology has any
role, constitutional or otherwise, in the advice and consent
process.
I recognize, however, that some of my Democratic colleagues
disagree with me. They place great importance on achieving what
they have referred to as appropriate balance on a court in
determining whether to vote to confirm a judicial nominee. So I
know that they will find it interesting that of the 25 active
judges on the Ninth Circuit, 17 of them were appointed by
Democratic Presidents and 14 of them were appointed by
President Clinton alone. In fact, four Clinton nominees to the
Ninth Circuit were confirmed in 2000, a Presidential election
year. Despite this record, only one of President Bush's three
nominees to the Ninth Circuit was confirmed in the last
Congress. So much for achieving the so-called balance. And
while we just confirmed Jay Bybee to the Ninth Circuit last
month, it is high time that Carolyn Kuhl is afforded a hearing
before this Committee.
Judge Kuhl has an exemplary record that includes service as
both a committed advocate and an impartial jurist. The American
Bar Association has rated her well qualified for this position.
Although the ABA used to be the gold standard as far as my
Democratic colleagues were concerned, I am only half joking
when I say that the ABA rating of well qualified seems to have
become the kiss of death for President Bush's judicial
nominees. The two nominees blocked in Committee last year,
Charles Pickering and Priscilla Owen, both received well
qualified ratings, as did Miguel Estrada, whose nomination has
been filibustered on the Senate floor now for nearly 2 months.
Carolyn Kuhl deserves to fare better, and I certainly hope she
does.
I expect that we will hear a great deal about Judge Kuhl's
qualifications during our next panel of witnesses, so I want to
focus on the widespread support for her nomination, because the
ABA is not alone in its judgment that she is well qualified for
the Ninth Circuit.
Since 1995, Judge Kuhl has served as a judge on the Los
Angeles County Superior Court. Nearly 100 of her fellow judges
on that court have written to the Committee to voice their
ardent support for her nomination. Here is what they have to
say: ``We are Republicans, Democrats, and Independents and have
all had the opportunity to observe the leadership and demeanor
of Judge Kuhl...We know she is a professional who administers
justice without favor, without bias, and with an even hand. We
believe her elevation to the Ninth Circuit Court of Appeals
will bring credit to all of us and to the Senate that confirms
her. As an appellate judge, she will serve the people of our
country with distinction, as she has done as a trial judge.''
Another letter came from the officers of the Litigation
Section of the Los Angeles County Bar Association. With more
than 3,000 members, this is the largest voluntary bar
association in the United States. They write, ``By reputation
and our personal experience, Judge Kuhl is extremely
intelligent, hard-working and thoughtful. She gained the
prestigious appointment as Supervising Judge of the Complex
Courts after only a few years on the bench because of those
traits. In addition, she has a well-deserved reputation as
being a fair-minded judge who follows legal precedent...On a
personal level, we have come to know her as a warm, witty and
deeply caring person. We could not recommend her more highly
for nomination to the Ninth Circuit Court of Appeals.''
I will submit copies of these letters for the record,
without objection, along with copies of other letters of
support we have received for Judge Kuhl's nomination.
Unfortunately, no judicial nominee these days seems to
escape criticism, at least circuit nominees, by the liberal
special interest groups. Judge Kuhl is no exception. I expect
that we will hear attacks on her record as an attorney for the
Justice Department during the Reagan administration, when she
was doing her duty to represent the position of the United
States. We will probably hear attacks on her record in private
practice stemming from the types of clients she represented and
the positions she took on their behalf. And I expect that we
will hear some unfounded criticism of decisions she has made as
a California State court judge.
These types of attacks on President Bush's judicial
nominees have become so commonplace, and often bear so little
relationship to the nominees' actual records, that they bring
to mind the children's story of the boy who cried wolf. After 2
years of smear campaigns, with each consecutive nominee being
declared more anti-this and pro-that than the former, these
groups have simply lost credibility, especially when you
consider their poor track record in predicting what kind of
judges nominees will turn out to be.
Two cases in point are Supreme Court Justices David Souter
and John Paul Stevens. The left-wing groups predicted that both
of these nominees would roll back decades of protections for
women, minorities, and the general population. Of course, the
test of time has told a different story: Justice Souter and
Justice Stevens are considered stalwart votes on the Court's
liberal wing. We should keep this in mind as we consider the
claims of the left-wing groups who oppose Judge Kuhl and other
Bush nominees.
In addition to Judge Kuhl, we will hear from two nominees
for the Federal district court bench: Cecilia Altonaga, who has
been nominated for the Southern District of Florida, and
Patricia Minaldi, who has been nominated for the Western
District of Louisiana. And I will reserve my remarks on these
nominees until after Judge Kuhl's testimony.
I look forward to hearing from all of our nominees on
today's agenda, and I commend President Bush for nominating
each of them.
We will now turn to the Democrat leader on the Committee.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you.
Today we are meeting, as you have said, to consider the
nomination of California Judge Carolyn Kuhl. I note you have
already attacked anybody who would question her qualifications.
There are some who might think that her very, very strong
support of Bob Jones University, a university where they teach,
Mr. Chairman, that both your religion and mine are basically
cult religions, had a very segregationist background, but has
been strongly endorsed by a number of members of your party, so
I suspect that that is something that can be overlooked.
I am delighted to see the distinguished Majority Leader
here. When you were talking about how badly treated Republicans
have been, I think you probably overlooked the fact that the
Senate has confirmed five Tennessee judicial nominees since
President Bush took office--one circuit court nominee, four
district court nominees. In fact, when I moved the Julia Smith
Gibbons nomination through this Committee in record time and on
to the floor, it was the first nominee confirmed to the Sixth
Circuit in almost 5 years. We have since confirmed two of
President Bush's nominees to that court.
I mention this, Mr. Chairman, because under the fairness of
your reign as Chairman during the Clinton years, you refused to
even allow hearings or votes on three of President Clinton's
nominees to that same court. There is now just one vacancy in
Tennessee, and that is for the seat of Thomas Gray Hull for the
Eastern District. President Bush has said that he is going to
nominate people to fill vacancies within 180 days. He is
probably not aware of the fact that that became vacant way over
180 days ago.
I mention this because sometimes the practice does not
match the rhetoric. The rhetoric is printed in the press. The
press, unfortunately, rarely picks up the practice, with some
notable exceptions.
The district court nominees have the support of their home
State Senators, although, as I will discuss in a moment,
Senators Graham and Nelson have had a most difficult time
getting the White House to agree to continue the tradition of
the Florida bipartisan selection commission and have only
recently come to a meeting of the minds with the White House.
The circuit court nominee before us today, Judge Carolyn
Kuhl, is not supported by both of her home State Senators. Her
appearance before this Committee, despite that clearly stated
opposition, is the latest in a string of transparently partisan
actions taken by the Senate's new majority since the beginning
of this Congress. In each of these actions--each of them
unprecedented--Republicans have done something that they never
did while in the majority from 1995 to 2001. Of course, then
there was a Democratic President. Then they were willing to
follow the rules as they saw them, especially if those rules
worked against a Democratic President. Now they will ignore the
rules if following the rules would not work to the benefit of a
Republican President. They have taken every one of those
steps--every one of those steps of ignoring past precedent, of
ignoring our rules, has been done in lockstep with the White
House further politicizing the whole question of picking
judges. I believe the Republican majority has shown a corrosive
and raw-edged willingness to change, bend, even break the rules
they followed before when it was a Democratic President there.
They will break, bend, and change the rules to help a
Republican President. And lest some observers wrongly conclude
that this sudden and orchestrated--and it orchestrated with the
White House--series of rules changes is just politics as usual,
it is not.
First, in January, one hearing was held for three
controversial circuit court nominees, scheduled to take place
in the course of a very busy day in the Senate. There were also
three other judges on that, six in all. There was no precedent
for this in the years that Republicans served in the majority
and a Democrat was in the White House. In 6 years during the
Clinton administration, never once were three circuit court
nominees, let alone three very controversial ones, brought
before this body in a single hearing. Why the change in
practice? There is a Republican in the White House.
When there was a Democratic President in the White House,
circuit nominees were delayed and deferred, and vacancies on
the courts of appeals more than doubled when the Republicans
were in charge of this Committee, from 16 in January 1995 to 33
when the Democratic majority took over partway through 2001.
Then in 17 months, we held hearings on 20 circuit judges.
Now, while Republicans averaged seven confirmations to the
circuit court every 12 months, the Senate under Democratic
leadership confirmed 17 in its 17 months in the majority. We
did that with a White House that was more uncooperative than
any of the six Presidents I have served with. So we have gone
from idling during the time this Committee had during the time
when President Clinton was in office to full speed ahead.
That is not the only politicized action. The Republican
majority supported and facilitated the renomination of
Priscilla Owen to a seat on the U.S. Court of Appeals for the
Fifth Circuit even though she had been rejected by this
Committee. Then they brought it back during a hearing where no
new facts of significance were issued, but a lot of rhetoric
about unfairness and so on, a lot of leading questions asked,
carefully orchestrated with the White House.
Now the Republican majority has scheduled this hearing for
a nominee who does not have blue slips returned from both her
home State Senators. Now, we will surely hear today a long
recitation of the history of the blue slip. We will hear how
unfairly it may have been used before. We will hear how other
Chairmen, Senators Kennedy and Biden, modified their policies
to allow for more fairness. And we will hear how the Chairman's
real objection during the Clinton administration was the so-
called lack of consultation with Republican Senators and how
fairly and successfully President Bush's White House has
consulted. And I am sure the Chairman will tell us he is the
heir to Democratic traditions, that he has followed these
policies, et cetera, et cetera, et cetera.
Well, it is true various Chairmen of the Judiciary
Committee have used the blue slip in different fashions. I will
refer to how this Chairman has. Today is the first time that
this Chairman will ever have convened a hearing for a judicial
nominee who did not have two positive blue slips returned to
the Committee. The first time, ever. Of course, we now do have
a Republican President. And despite protestations that this has
been the Chairman's consistent policy over time, it hasn't
been. The facts show exactly the opposite.
These pieces of blue paper are what the Chairman uses to
solicit the opinion of home State Senators about the
President's nominees. When President Clinton was in office,
this was the blue slip sent to Senators asking their consent.
It says, ``Please return this form as soon as possible to the
nomination office. No further proceedings on this nominee will
be scheduled until both blue slips have been returned by the
nominee's home State Senators.''
When President Bush began his term and Senator Hatch took
over, the blue slip was then quickly changed. It simply says to
return it as soon as possible. The blue slip that was good
enough for Chairman Hatch when there was a Democratic President
suddenly changed to benefit a Republican President.
The new blue slip contains no requirement that the
President may have to engage in sufficiently meaningful
consultation with home State Senators. All it has is a 180-
degree turn from what it used to be.
The blue slip was strictly enforced by the Chairman during
the Clinton administration. It operated as an absolute bar to
the consideration of any nominee to any court unless both home
State Senators had returned positive blue slips. I remember
going down to meet with President Clinton with the
distinguished Chairman with me, and he made that very, very
clear in our meetings in the Oval Office with the President.
Until both blue slips came back, there would be no hearing. He
said that is the way it is, that is the way it has always been,
that is the way it always will be. Ah, but then the Presidency
changed, and suddenly all the rules changed.
Remember, in the 106th Congress alone, more than half of
President Clinton's circuit court nominees in the 106th
Congress were defeated through the operation of the blue slip.
Maybe the most vivid is the story of the United States Court of
Appeals for the Fourth Circuit. Senator Helms was permitted by
this Committee to resist President Clinton's nominees for 6
years. The distinguished Chairman told me personally that we
couldn't go forward with those nominees, I believe African-
Americans and others, because Senator Helms would not return a
blue slip. James Beaty was first nominated to the Fourth
Circuit for North Carolina by President Clinton in 1995, but
there was no action on his nomination in 1995, 1996, 1997, or
1998 because one Senator had not sent back a blue slip. Another
Fourth Circuit nominee from North Carolina, Rich Leonard, was
nominated in 1995, but no action was taken in 1995 or 1996.
James Wynn, again, a North Carolina nominee to the Fourth
Circuit, sent to the Senate by President Clinton in 1996, sat
without action in 1999, 2000, and 2001 because both blue slips
were not back.
That was the rule, and I was told very forcefully and told
by the distinguished Chairman in the presence of the former
President in the Oval Office because that is the rule.
Suddenly, the rule was changed.
I think now we see a bit of revisionism fit for study by
Sovietologists saying there was insufficient consultation.
There were many times when the White House under President
Clinton made nominations at the direct suggestion of Republican
Senators, and there are judges sitting today on the Ninth
Circuit, the Fourth Circuit, and the district courts in
Arizona, Utah, Mississippi, and many other places only because
the voices of Senators in the opposite party were heeded. In
fact, in one case, at least one case, in Utah went forward
because I went down and personally sat down with the President
and urged him to go forward. But, instead, since the beginning
of his time in the White House, the Bush administration has
sought to divide, not unite, has sought to overturn traditions
of bipartisan nominating commissions.
They changed the systems in Wisconsin, Washington, and
Florida that had worked so many years. They ignored the
protests of Senators like Barbara Boxer and John Edwards who
wanted to reach a true compromise and they even suggested
Republican alternatives. They were told they were irrelevant.
Ignoring bipartisan judicial nominating commissions is just
another step in the march to entirely politicizing the Federal
judiciary. It is exactly what the Bush White House did to the
State of Florida. Last year, Senators Graham and Nelson were
compelled to write in protest to the White House Counsel's
flaunting of the time-honored procedures--a procedure that had
been followed when there were both Republican and Democratic
Senators in Florida and Republican and Democratic Presidents. A
process that had worked to fill 29 district court vacancies
over 10 years was bypassed by this President. I am glad the
White House has finally agreed to the Florida Senators'
proposals so we can get on with processing the nomination of
Cecilia Altonaga. And I hope the White House will start working
with other Democratic Senators and increase the almost non-
existent level of consultation. I have been here during the
Ford administration, the Carter administration, the Reagan
administration, the former Bush administration, the Clinton
administration, and now this administration. I have never--and
I can state this categorically--never been here with an
administration that has shown less interest in working with
Senators on judicial nominees than this one.
I object to this hearing being held, but I will participate
in the questioning of Judge Kuhl. I understand the
distinguished Chairman has completely turned on end what has
been his rule when there was a President of the other party,
but he has called it up and we will go forward.
We will talk about her past advocacy for aiding educational
institutions which discriminate on the basis of race, like Bob
Jones, or on religion, something of interest, I would assume,
to Catholics, to Mormons, and others who have been greatly
discriminated against by Bob Jones, as well as her work on the
case involving fundamental constitutional rights, including the
right to privacy. So we will look forward to it, and I think it
will be an interesting time.
So nice to be here with you, Mr. Chairman.
Chairman Hatch. Well, it is so nice to have you. I
understand you disagree with me somewhat here and, as usual, I
think, have misstated the rules and the cases.
Now, we have Hon. Bill Frist, the Majority Leader, who I
know has to leave in a short time, so we are going to turn to
him next. Then we are going to turn to the distinguished
Senator from California who would like to make a statement, and
then we will go back to Senator Graham, and then we will go to
the witnesses.
PRESENTATION OF CAROLYN B. KUHL, NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT, BY HON. BILL FRIST, A U.S. SENATOR FROM
THE STATE OF TENNESSEE
Senator Frist. Mr. Chairman, it is with great pleasure that
I am here to commend Carolyn Kuhl to this Committee's
consideration, and I thank the Chairman and the Ranking Member
and all the members of the Committee for allowing me this
opportunity to give you my brief testimony.
I realize that it is unusual for a Senator who is not from
a nominee's home State to make such an introduction, but if
this helps, I can tell you that Carolyn Kuhl is as bright as
anyone I know in Tennessee, and I can say that because I have
known her for 30 years, and a number of classes, but one in
particular, a chemistry class, at Princeton University, and
everything that I struggled with, she sailed.
I was delighted to read, Mr. Chairman, that along with
everyone else the--I was able to read that the President has
nominated my friend and classmate, Carolyn Kuhl, to serve on
the Ninth Circuit, and that is why I am here.
Judge Kuhl and I attended Princeton University at a time, a
unique time in the history of that university, a time of change
and formation as an institution, and then also for us as
individuals. I can tell you, Mr. Chairman, that a woman
graduating from Princeton in those early 1970's with a
chemistry degree, and, I should add, with honors, signifies an
achievement greater than many may understand. Certainly the
fact that Judge Kuhl went on to graduate from Duke Law School
in the Order of the Coif makes clear why she sits here today
and why I have no doubt she is eminently well qualified.
Like many Senators of late, I have turned for guidance to
the Founding Fathers, and especially to the father of the
independent Judiciary, John Adams, to find the right standard
by which to give advice/consent on a judicial nominee. Adams
was clear. He memorialized for us what the standard should be
for the men and women who should be our judges: men of
experience on the laws, of exemplary morals, invincible
patience, unruffled calmness, an indefatigable application, who
will be appointed for life and subservient to none.
This is a high standard. It is a standard which knows no
politics. It is a standard devised when there were no organized
parties. It is a standard both for the nominees and for the
Senate as stewards of the independent judiciary. And this is a
high standard, but one that Judge Kuhl meets in every single
respect.
In reviewing Judge Kuhl's record, I was most struck by the
wide support she has received, referred to by the Chairman,
without regard to partisan politics. I was impressed by the
letter from 23 women, all of whom sit as judges on the Superior
Court of Los Angeles, the letter dated February 22, 2002. They
write, and I quote, ``Judge Kuhl is seen by us and by members
of the bar who appear before her as a fair, careful, and
thoughtful judge who applies the law without bias. She is
respected by prosecutors, public defenders, and members of the
plaintiffs' and defense bar. She is conscientious, scholarly,
courteous, and willing to listen with an open mind to the
arguments of counsel. Judge Kuhl approaches her job with
respect for the law and not a political agenda. Judge Kuhl has
been a mentor to new women judges who join our court. She has
helped promote the judicial careers of women, both Republican
and Democrat.''
Mr. Chairman, these judges also point out that Judge Kuhl,
and I quote, ``supported Hon. Margaret Morrow when Judge Morrow
was awaiting a hearing. She also wrote in support of President
Clinton's nomination of Hon. Richard Paez.''
Her colleagues go on to say in this letter, ``Carolyn Kuhl
is also a very decent, caring, honest, and patient human being
who is a delight to have as a professional colleague and
friend. As sitting judges, we more than anyone appreciate the
importance of an independent, fair-minded, and principled
judiciary. We believe,'' they conclude, ``that Carolyn Kuhl
represents the best values of such a judiciary.''
Mr. Chairman, as you well know, there are two types of
praise that are most significant in public life: the honest
praise of your opponents and the informed praise of your
colleagues.
In closing, I am pleased to commend to you the nomination
of Carolyn Kuhl, and I will leave you with this request: I hope
that today you ask her tough questions. I seem to recall that
these are the ones she most enjoys answering.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you, Leader. We appreciate you
taking time from what we know is a tremendously busy schedule
to be with us today, and we are glad to have you here. We will
allow you to go.
Senator Frist. Thank you.
Senator Leahy. I might note, Mr. Chairman, I am a great
admirer of John Adams. I love the David McCullough book on him.
I would also point out to the distinguished Majority Leader,
John Adams was the first President who tried to pack the
Federal courts. I just thought I would mention that.
Chairman Hatch. All right. We will turn to the
distinguished Senator from California, and then I am going to
turn to the distinguished Senator from Florida.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, and I
really appreciate this opportunity. I really want to be here
during this hearing, particularly for Judge Kuhl.
Unfortunately, Senator Byrd has called a meeting of Ranking
Members of the Appropriations Committee at 11:00 on the
supplemental, and the emergency supplemental is being marked
up, as you know, at 2 o'clock this afternoon. That presents
real logistical problems for me.
I wanted to say something--
Chairman Hatch. Would it be helpful to you if I turn to you
first for questions?
Senator Feinstein. It would. I would appreciate that very
much.
Chairman Hatch. With the permission of the ranking member,
I will do that so that we can accommodate you.
Senator Feinstein. Well, if that is possible. If not, I can
try to work it out some other way. But I have been asked to
submit letters from my colleagues Senator Barbara Boxer and
Senator Bill Nelson for the record, and with your permission I
would like to do that.
Chairman Hatch. Without objection, we will put them in the
record.
Senator Feinstein. I want to just make a couple of comments
about Judge Kuhl because I think in her nomination we see the
classic dilemma. I have never had more letters from sitting
judges in support of a candidate than I have with respect to
this judge, Carolyn Kuhl. Every one of them went out of their
way--and I am a reader of letters and I know when they pro
forma and I know when they are not. And they clearly are not in
this case.
I have received a letter from the Los Angeles County Bar
Association representing 20,000 Los Angeles lawyers, and I
think the letter says something that we ought to take note of,
and that is, and I quote, ``The recent trend in attacking the
qualifications of judicial candidates on the basis of positions
advocated on behalf of clients is misguided for a variety of
reasons.'' And then they point out the reasons. And I think we
ought to think a little bit about this. I would like to put
that letter, if I might, in the record.
Chairman Hatch. Without objection, it will go into the
record.
Senator Feinstein. I think it is very rare that we have an
appellate court nominee that has this kind of background.
Clearly, this is an extraordinarily bright woman. I think it is
very rare that we have an appellate court nominee that has the
kind of experience that she has had on the court, the most
diverse court in the United States, the Los Angeles Superior
Court.
I want to just read into the record on e paragraph from one
letter from Judge Paul Boland, and you correctly stated there
are 94 superior court judges from Los Angeles who have signed
in support, and there are 24 other separate letters from judges
in support. But I think this paragraph has to be considered,
and I would like to read it.
``Judge Kuhl is widely regarded as one of the most
dedicated, knowledgeable, skillful, and thoughtful judges
sitting on the Los Angeles Superior Court. In criminal and
civil judicial assignments, she has distinguished herself as a
judge who is highly intelligent, renders balanced, reasoned
decisions, is intellectually honest, and is even-handed and
fair. In criminal cases, prosecutors and criminal defense
lawyers alike single her out for praise. In civil matters, the
plaintiffs' bar and the defense bar universally respect her.
During our years of service together on the superior court, I
have never heard any criminal or civil lawyer express the view
that Judge Kuhl issued a ruling or rendered decisions that were
in any way influenced by a particular judicial philosophy or
political ideology or were motivated by a judicial or political
agenda. As a member of the superior court, she has consistently
strived to make decisions that are legally correct and devoid
of bias.''
And then he goes on, as a Supervising Judge of Complex
Litigation, to describe how she came into that area and within
6 months ended up supervising the area. You know, clearly this
is an outstanding judge.
Now, on the other hand, we have a wide array of letters
from socially connected organizations in strong opposition to
this nominee. These letters, I would say from my reading, 100
percent point out their concerns, all of which go back to the
time before she was a judge and about which I hope to ask a
number of questions when my time comes.
I think the job for this Committee is really to reconcile
those social viewpoints with her performance over a substantial
period of time as a Los Angeles Superior Court judge.
Now, when I have asked questions of people that have come
in to see me, well, she didn't demonstrate that as a judge.
They would say to me, ``Well, she didn't have a case that would
cover that point.'' So what we have is sort of a complete
polarization.
Now, what has concerned me in the time I have sat on this
Committee is those judges about which there is the least, we
know the least. Those judges that go through very often are
those judges that haven't written, haven't spoken, really don't
have much record; therefore, there is nothing to pin the tail
on the donkey. And what concerns me about the Federal judiciary
is what I call the dodo head syndrome, that we end up getting a
lot of judges about which we know very little but who are not
necessarily the brightest and the best, which I believe the
Federal system should be.
So this is a hard case in point, and it may be well that
Judge Kuhl is really the one, I think, that is going to make
the outstanding point in this regard.
So I guess what I want to say, Mr. Chairman, is that this
is a very big hearing, indeed, because the sides are well
polarized. On one bench, you have virtually the entire Los
Angeles sitting superior court, and on the other, you have some
of our finest and best social organizations throughout the
United States. It is going to be very interesting to see how it
turns out.
I say this as someone that has an open mind. I have not
taken a position, but I hope to ask a number of questions.
Also, to kind of identify it, there is one additional
letter I would like to read, and it was a surprising letter to
me because it is from a Vilma Martinez, who is a Democrat, is a
veteran of civil rights battles. She is well known to me. She
testified against Judge Robert Bork's nomination to the Supreme
Court, and she says, and I quote, ``Like others dedicated to
the independence of our judiciary, I certainly do not want
ideologues serving as judges on our Federal courts. That is why
I think Judge Kuhl would make a great addition to the Ninth
Circuit. She served for 7 years in the California Superior
Court, et cetera.'' And she says, ``Before that, she and I were
law partners for 9 years. Judge Kuhl is what I think of as an
old-fashioned judge. She cares about due process for everyone.
During her service on the superior court, she has shown that
she is careful to hear both sides. She doesn't try to influence
the outcome of a case in favor of one side or the other. She is
serious about her oath to follow the law, whatever the
result.''
And so I would like to add that record, if I may, as well
to the record.
Chairman Hatch. Without objection, we will put it in the
record.
Senator Feinstein. I thank you for this courtesy, Mr.
Chairman.
Chairman Hatch. Well, thank you, Senator.
We will turn to our distinguished friend from Florida,
Senator Graham.
PRESENTATION OF CECILIA M. ALTONAGA, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, BY HON. BOB GRAHAM,
A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Graham. Thank you very much, Mr. Chairman and
members of the Committee. In deference to the Committee's very
heavy and important agenda today, I am going to abbreviate my
remarks and would ask that my full statement be included in the
record.
Chairman Hatch. We will put the full statement in the
record, Senator.
Senator Graham. Thank you very much, Mr. Chairman.
I also wish to thank you for your prompt scheduling of this
hearing. As I have said before, the Southern District of
Florida is one of the largest in terms of case filings and
busiest in terms of the complexity of those cases judicial
districts in the country, and I appreciate your concern to see
that it continues to be fully staffed.
Chairman Hatch. Thank you, Senator.
Senator Graham. Mr. Chairman, on behalf of Senator Bill
Nelson and myself, I am pleased to introduce to the Committee
Hon. Cecilia M. Altonaga. She currently serves as a judge on
the State of Florida's Eleventh Circuit, the highest trial
court in our State.
Judge Altonaga is joined today by her husband, George
Mencio, Jr., also a lawyer, specializing in international law.
Her three daughters--Natalie, 13, Caroline, 10, and Gabriella,
4--are at home in Miami, and I know they are very proud of
their mother today.
Mr. Chairman, I am honored to introduce you to this nominee
not only because she is an able jurist who hails from our State
of Florida, but also because her confirmation will further
realize our shared commitment to the goal that our judiciary
should be as varied as our society. I would like to submit for
the record and read a portion of a letter which I have received
from Mr. Victor M. Diaz, Jr., who is the president of the Board
of Directors of the Cuban American Bar Association in Miami,
Florida. Mr. Diaz writes, ``Judge Altonaga is an outstanding
jurist who is extremely well qualified for the position to
which she has been nominated. Judge Altonaga's appointment also
will bring much needed diversity to our local Federal court
judiciary. Most importantly, Judge Altonaga represents the
highest aspirations of our profession from a personal and
ethical standpoint and will serve as a role model to all who
will come before her.''
I ask that the full letter be included.
Chairman Hatch. Without objection, we will put it in the
record.
Senator Graham. Today, with Senator Nelson, I support the
nomination of Cecilia M. Altonaga, who is about to become the
first Cuban American woman to serve as a Federal judge. Judge
Altonaga's solid qualifications make her an ideal candidate for
service on the Federal bench. A graduate of Florida
International University in Miami and the Yale University
School of Law, Judge Altonaga has served her community as
assistant county attorney in Miami-Dade County and as a judge
on the county court of Florida's Eleventh Circuit prior to her
ascending to the circuit court.
Beyond these impressive credentials, Judge Altonaga
possesses the temperament that the job requires. Her college
alumni publication reports that her professor remembers her as
a disciplined, goal-oriented student who wasn't afraid to work
hard. And, Mr. Chairman, I think maybe one of the best
qualifications for a Federal district judge is this statement
by her professor: ``She was one of the best listeners I ever
had.''
She is clearly suited for this challenge work. Judge
Altonaga is an intelligent, committed, well-respected candidate
for the Federal bench, and I appreciate the Committee's
consideration of her nomination and have every expectation that
both this Committee and the full Senate will act on this
nomination without delay.
Chairman Hatch. Well, thank you, Senator. We appreciate you
taking time from your busy schedule to be here, and that is
high praise indeed for Judge Altonaga. So we appreciate you
being here.
Senator Graham. Thank you.
Senator Leahy. It is nice to have you back.
Chairman Hatch. It sure is. We have two members of this
Committee who need to go to the meeting with Senator Byrd, so
we will call on Senator Leahy first and then we will call on
Senator Feinstein from California second, and I will defer my
questions until after the two of them. We are going to have
ten-minute rounds, so Senator Leahy?
I forgot to ask you to give any statement you would care.
We will do that, as well.
Senator Leahy. You can do that first.
Chairman Hatch. Would you raise your right hand. Do you
solemnly swear to tell the truth, the whole truth, and nothing
but the truth, so help you, God?
Judge Kuhl. I do, Senator.
Chairman Hatch. Thank you. Judge Kuhl, we are very grateful
to have you before us today and we look forward to hearing your
testimony. Do you have a statement you would care to make
before we get into--
STATEMENT OF CAROLYN B. KUHL, NOMINEE TO BE CIRCUIT JUDGE FOR
THE NINTH CIRCUIT
Judge Kuhl. I don't have a statement that I have brought to
make. I would like to introduce my family, but being aware of
the time, perhaps I could--
Chairman Hatch. No, please do. No, we want you to do that.
Judge Kuhl. All right. Thank you. I have with me here today
my husband, Hon. William Highberger, who is a judge also on my
court and my partner in all things. I have my daughters, Helen
and Anna Highberger. Helen is the elder and I am very proud of
them--
Chairman Hatch. We are happy to have you here.
Judge Kuhl. --and they are here today. And also my father
and my brother, who have come from Fort Worth, Texas, to be
here. My father is a retired railroad executive and my brother
is a computer consultant and they are both learning to fly. My
brother soloed last week, so I really proud to have them.
Chairman Hatch. We are really proud to have you here, and
that is great that you can do that. Thank you. We are so happy
to have your family here with you and we welcome you and hope
you can enjoy this hearing.
[The biographical information of Judge Kuhl follows:]
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Chairman Hatch. We will to go Senator Leahy first.
Senator Leahy. Thank you, and I welcome you, too. I am glad
your family could be here. I have thought of the thousands of
judicial nomination hearings I have been at, and most of them,
there have been--it actually is thousands now--most of them
have had family members. I have often felt that somewhere in
the archives, wherever that family is, somewhere, someday they
will pull out the transcript and find who is there, and I think
it is a nice thing to do. We even had one judge who had the
transcript from about 35, 45 years before when his father had
become a judge and he was there.
Judge Kuhl, as an aide to Attorney General William French
Smith, who was Attorney General then, you were one of a small
group of lawyers who pressed for what I believe is a radical
change in policy to allow private nonprofit schools that
discriminate based on race to receive tax-exempt status, and
that was a drastic departure from the policy that had been in
place.
In 1970, the Nixon administration, following the Court
decision, adopted Internal Revenue Service rules denying tax
exemption for schools that racially discriminate. Many of us
feel that President Nixon was right in that, but the Congress,
and I was not in the Congress at the time, left those rules
standing.
In 1981, the U.S. Supreme Court agreed to review two
decisions of the Court of Appeals for the Fourth Circuit which
upheld IRS actions denying tax-exempt status to Bob Jones
University and Goldsboro Christian Schools, Inc. The Reagan
Justice Department prepared to and initially did defend the IRS
actions and rules. In other words, the Reagan administration
took the same position the Nixon administration had.
But in January 1982, the Justice Department suddenly
announced a change in its position. It found the IRS had no
legal authority to deny tax-exempt status and agreed to give
the schools, despite their blatant policies of racial
discrimination, the tax exemption, aside from any other
questions of religious discrimination. This was specifically
on--they did discriminate on religious, but on the racial
discrimination.
Now, according to news articles and Congressional hearings,
you were one of three lawyers characterized as part of the Bob
Jones team who opposed the prevailing policy and pressed for
the legal switch to give Bob Jones its tax exemption. In other
words, you wanted to change what had been policy since 1970,
and you wrote a memo along with Charles Cooper to Assistant
Attorney General Brad Reynolds that was shown at the House Ways
and Means Committee in which you argued that the IRS policy was
simply wrong.
You wrote, ``The Commissioners' ruling denying tax-exempt
status to these racially discriminatory private educational
institutions is supported by neither the language nor the
legislative history of Section 501(c)(3).'' I want to note that
that point, the IRS nondiscrimination policy, had been approved
by two United States Courts of Appeals in three separate
appeals.
Now, Judge, at the time you authored the memo to Assistant
Attorney General Reynolds urging this drastic change in policy,
were you aware that more than 200 lawyers in the Justice
Department Civil Rights Division objected to that change of
position?
Judge Kuhl. Senator, I am glad that you have asked this
question right at the outset of the hearing--
Senator Leahy. I knew you wouldn't be surprised that I
would.
Judge Kuhl. --because I am grateful for an opportunity to
address this issue. I regret having taken the position that I
did in support of the government's change of position at that
time and I would like to explain that, if I may take the time
to do that.
Senator Leahy. When you do, would you also respond to the
charge of the New York Times that you and your two other co-
workers were a band of ``young zealots,'' their words, in
forcing a change in policy that was so strongly opposed by many
senior officials in various executive branches during a
Republican administration?
Judge Kuhl. Certainly. I will address that, Senator.
I do want to state at the outset, though, you had mentioned
in your opening statement about some of them, I would call them
abhorrent policies of Bob Jones University, and you can be sure
that I had no sympathy for those policies. I share the same
religion that you do, and I--
Senator Leahy. Judge Kuhl--
Judge Kuhl. Yes?
Senator Leahy. First off, your religion, I want you to
know, I have never asked, never would, and don't even know the
religion of 99 percent of the people that come here. That is--
we don't--none of us have religious tests here.
Judge Kuhl. I appreciate that, and I think that is very
appropriate, Senator, but I wanted to say that so that you
would understand in response to your comment that I had
absolutely no sympathy for Bob Jones, either with respect for
its racially discriminatory policies or with regard to its
teachings with respect to other religions.
The issue as I saw it, as it was considered during the
Reagan administration, was whether the IRS was overstepping and
taking an overly broad interpretation of its authority under
its governing statute as it asserted that it had the authority
to define public policy and to then deny tax exemptions on the
basis of that public policy. That was the issue.
I told you that I regret taking the position that I did at
the time, and that is the case for two reasons. First, I did
not at that time understand the traditional role of the Justice
Department, which is to defend the positions of the agencies as
long as there is a reasonable argument that can be made in
defense of those agencies, and I don't think that I--well, I
didn't as a very young staffer fully understand that, and I
was--I had only been in Washington for a few months when this
came up and I was a young staff assistant--
Senator Leahy. But that is almost hornbook law.
Judge Kuhl. I am sorry?
Senator Leahy. You didn't learn that in law school? I mean,
I--
Chairman Hatch. Why don't you let her answer the question
and maybe she will answer it.
Senator Leahy. I am surprised what you are saying,
because--
Judge Kuhl. Well, I had never worked for the government
before, so it wasn't apparent to me.
The second and the more important reason why I think that
the decision was wrong is because it did not properly put the
nondiscrimination principle that should have been primary in
this decision first. I was concerned about the IRS policy
giving the IRS, of all agencies, the authority to interpret
public policy and enforce it, and I was particularly concerned
about all-girls' schools. I had attended an all-girls' school
and I did not want to see a precedent created that would have
meant that tax exemptions could be taken away from all-girls'
schools because they discriminated against men. But--
Senator Leahy. Let me--
Judge Kuhl. If I could just say a couple other things--
Senator Leahy. Go ahead.
Judge Kuhl. --because I do want to get to the ``band of
zealots'' point that you asked me about.
Senator Leahy. I am not--I realize you wouldn't filibuster
on an answer, but time runs out and I want time to follow up on
this, but please go ahead.
Judge Kuhl. Well, perhaps if the time runs out, Senator
Hatch would give you a little more time, but--as much time as
you want, I should say.
Senator Leahy. Kind of you to ask.
Judge Kuhl. But I did want to finish this explanation and
to say that focusing on the narrow legal issue was not the
right thing to do in that situation. The nondiscrimination
principle and the importance of enforcement of the civil rights
laws by the executive branch should have taken sway and should
have been primary in making that decision.
As to the ``band of zealots'' point, the Deputy Attorney
General and the head of the Civil Rights Division both advised
the Attorney General to change positions in the Bob Jones case.
So as far as the memorandum I wrote, I am sure that the
Attorney General looked at that memorandum, but there were
senior officials, including also the Under Secretary of the
Treasury, which I didn't know at the time, but I found out
later the Under Secretary of the Treasury urged that the
President take that position, as well, or that the Secretary of
Treasury take that position, and, of course, it was the
Attorney General's decision, and thank you, Senator, for
allowing me to make that explanation.
Senator Leahy. Because you wrote to Senator Boxer that you
felt the traditional role of the Department of Justice is to
defend regulations issued by executive branch agencies when the
regulations are challenged in litigation. That was not the way
you felt then. That is the way you feel now as you are up for--
now that you are appearing for the confirmation hearing, that
is your opinion today, but that was not your opinion when you
were at the Justice Department.
Judge Kuhl. Well, I wrote that letter to Senator Boxer 2
years ago, but I also came to the conclusion that the Bob Jones
ruling or change of decision was wrong while I was at the
Justice Department. I had conversations with people as I went
along, and by the time I was in the Solicitor General's Office,
I had reached that conclusion and discussed that with Solicitor
General Fried, who was my boss, and he has mentioned that in an
article he wrote for the New York Times a brief while ago.
Senator Leahy. It just seems strange, of all the issues you
could have taken on, you take this one, whether ``band of
zealots'' is an adequate term or not. You chose one that seems
hard to defend both legally and socially, waged a fierce
campaign, 200 career lawyers saying, and these are people who
came in in both Democratic and Republican administrations,
saying you are wrong. It just--were there other cases during
your tenure at the Justice Department in which you recommended
that the U.S. confess error in the Supreme Court?
Judge Kuhl. I can't think of any, Senator.
Senator Leahy. So we just have this. I am looking at the
material that was turned over to the Senate Finance Committee
and the House Ways and Means Committee concerning legislation
to deny Federal tax-exempt status, a number of Justice
Department memoranda. At least during the Reagan
administration, they could be turned over. Apparently, they are
not allowed now. These were turned over 2 months after they
were written.
One of the documents was a memorandum written by you on
December 8, 1981, to Solicitor General Kenneth Starr noting
then-President Reagan and then-Vice President Bush's campaign
statements on private schools. That memo had an excerpt from
President Reagan's campaign platform stating he opposes the IRS
attempt to remove the tax-exempt status of private schools by
administrative fiat. Did that influence you in your arguing for
this change?
Judge Kuhl. Senator, that didn't have any part of the
memorandum that I wrote, which was a legal analysis. I did
forward it to the Attorney General, because as his staff
assistant, I felt that it was information that he should have.
Senator Leahy. But you didn't include that in your
argument, the political position?
Judge Kuhl. No, Senator, I didn't put that in my
memorandum.
Senator Leahy. My time is up. I will have other questions,
either in a follow-up or in questions for the record, and Mr.
Chairman, I appreciate your courtesy in allowing me to go
first.
Chairman Hatch. Happy to do it. I will also extend the same
courtesy to the Senator from California, who can ask her
questions now.
Senator Feinstein. Thank you very much, Mr. Chairman. Judge
Kuhl, good morning.
Judge Kuhl. Good morning, Senator.
Senator Feinstein. In 1985, you argued in the Thornburgh
case that the Supreme Court should overturn Roe v. Wade. Your
brief claimed that stare decisis is a principle of stability--I
am quoting now. ``A decision as flawed as we believe Roe v.
Wade to be becomes a focus of instability, and thus is less
aptly sheltered by that doctrine from criticism and
abandonment.''
In the case of UAW v. Brock, you argued that the Supreme
Court should reverse a decades' old doctrine of associational
standing which allows associations to represent constituent
members in court in some circumstances. Specifically, you
argued that, and I quote, ``At the least, absent a showing of
particularized need, an organization should not be allowed to
bring suit to assert the individual rights of its members.''
Can you explain to me in these two cases why you thought it
was appropriate to overturn Supreme Court precedent? When, in
your view, should an attorney advocate for the overturning of
Supreme Court precedent? Why should the Committee believe that,
upon appointment to the Circuit Court, you will not again
attempt to shape the law instead of just interpreting it?
Judge Kuhl. Okay. I understand the importance of that
question, Senator, and I am going to give a brief answer to one
part and then try to explain each case.
As an attorney, I think it is appropriate to advocate to
overturn Supreme Court precedent when it is in your client's
interest. In other words, as attorneys, we are really not
constrained in what we argue so long as it is within the bounds
of ethics. We do what--we argue what is best to represent our
client.
As judges, that is not what we do, and so I know how
important it is to you and to other women in this country to
understand that I am fully committed as a judge to following
the law. Since the Thornburgh case, the Casey case has
completely looked at Roe again and has reaffirmed the Roe
decision, and understand that I am fully committed to fully and
fairly and properly enforcing a woman's constitutional right to
reproductive freedom.
Senator Feinstein. Do you believe it was correctly decided?
Judge Kuhl. Do I believe that Casey was correctly decided?
Senator Feinstein. Casey and Roe.
Judge Kuhl. Casey and Roe? As an advocate at the time that
I wrote the Thornburgh brief, and maybe I should turn back to
the Thornburgh brief now. The Thornburgh brief was in 1985.
Casey was decided reaffirming Roe in 1993. That was a
considerable period later.
In the Thornburgh brief, I was representing the Reagan
administration. President Reagan had taken the position
publicly, both before and after he was elected, that Roe v.
Wade should be overruled. Also, prior to the Thornburgh brief,
the Justice Department had filed a brief in Akron. Akron
occurred before Thornburgh. And in Akron, the Justice
Department had argued for a severe narrowing of Roe v. Wade by
saying the States should have--well, there is a right to
privacy, but States should have a great deal of leeway and be
given deference in their interpretation of that right. In other
words, the States' interpretation of the right should be looked
at carefully by the Supreme Court.
That argument was very poorly received by the Supreme
Court. Justice Blackmun said, if you are not asking that Roe v.
Wade should be overruled, are you asking that Marbury v.
Madison should be overruled? And so it seemed to me that, given
the position of the President, the Justice Department should
argue forthrightly what the President's position was. And at
that time, there was considerable academic criticism of Roe v.
Wade by Paul Freund, Archibald Cox, Alexander Bickel, and Ruth
Bader Ginsburg. I am not sure whether her criticism was before
or after that time, but she also criticized the reasoning of
Roe, and I thought those arguments should be presented as
advocacy on behalf of the President.
Senator Feinstein. You didn't quite answer my question. Do
you believe that Roe was correctly decided?
Judge Kuhl. Senator, I am not comfortable with giving my
opinion with respect to any particular precedent as to whether
it was correct or not. My job as a judge--and I am performing
that job now--I take percent and apply it fully, completely,
and fairly, whether or not I agree with it.
As an advocate for the President, I thought that those
criticisms of Roe were well taken. In the passage of time
between Roe and Casey, however, stare decisis became much more
important. In other words, there continued to be cases decided
under the Roe v. Wade principle, and certainly after Casey,
stare decisis is paramount. That is to say that Roe v. Wade and
Casey are some of the most fully established precedent that I
can think of in our jurisprudence.
Senator Feinstein. Okay. Let me go to some of the comments
that Charles Fried made, and I am sure you probably know about
that, made in 1985. He recalled how he made his decision as
Solicitor General to file an amicus brief in Thornburgh v.
American College of Obstetricians and Gynecologists. The United
States, since it was not a party to the case, was not obligated
to file a brief. Fried recounted how he received
recommendations from the various divisions of Justice, Civil
Rights, Civil and Legal Policy on how to proceed.
Let me just quote him directly. ``The most aggressive memo
came from my friends Richard Willard and Carolyn Kuhl in Civil,
who recommended that we urge outright reversal of Roe.'' Did
you, in fact, write a memo to the Solicitor General urging the
outright reversal of Roe?
Judge Kuhl. Yes, Senator, and the reasons for that are that
this was not the first time that the government had entered the
dialogue in the Supreme Court on abortion. In the Akron case,
which came up before Thornburgh, the United States had already
taken a position on abortion and on the right to privacy.
In the Thornburgh case, then, it seemed to me the issue was
would we continue this argument that undercut Roe, or in light
of the President's position, strongly held and strongly taken
that Roe should be overruled, would we present to the Court the
academic criticism that had been--that was out there. And I
thought that it was important to be honest with the Court and
to be forthright about what the President's position was.
Senator Feinstein. Well, let me ask this question. When,
generally, do you believe it is acceptable to overturn Supreme
Court precedent?
Judge Kuhl. Well, certainly as a Circuit Court judge, I
would never do that. That would never be my job, to overturn
Supreme Court precedent. For the Supreme Court, stare decisis
is extremely important. Our government is a government of laws.
It can't--the result in a case can't be different depending on
which parties come before the Court, and so, therefore, stare
decisis must be very important and overturning a precedent must
be very rare because we must build on what has gone before.
That is what we do as judges.
Senator Feinstein. Okay. In 1989, you authored a brief on
the issue of choice. By then, you had left the government and
joined the private law firm of Munger, Tolles and Olson, and in
your capacity as a private lawyer, you wrote a brief in the
Rust v. Sullivan case on behalf of the American Academy of
Medical Ethics, and at the beginning of your brief, you again
criticized the Supreme Court's abortion jurisprudence by
quoting a dissent from Justice O'Connor in the Thornburgh case,
and the quote is as follows. ``The Court's abortion decisions
have already worked a major distortion in constitutional
jurisprudence. No legal rule of doctrine is safe from ad hoc
nullification by this Court when an occasion for its
application arises in a case involving abortion.''
Would it be fair to say that in 1989, when you drafted the
American Academy brief, you were still a critic of the Supreme
Court's jurisprudence on abortion?
Judge Kuhl. Senator, the brief in that case was written by
me on behalf of a client. The client came to me and requested
that that brief be drafted, and that brief primarily addresses
the First Amendment issue there, the First Amendment issue
being whether the government could place restrictions on
speech, if you will, in a Federal agency program.
I took on the representation because I was trying to build
an appellate practice. Filing briefs in the Supreme Court is a
prestigious thing to do, and the--and in First Amendment
issues, they are particularly prestigious.
Justice O'Connor did make that statement in a--I can't
remember, was it a concurring or a dissenting opinion, but she
did make that statement. And again, her statement was pre-
Casey. That is to say, I think there was--the terms that are
coming to mind are too strong, but the Court was making its way
with some difficulty pre-Casey, I think, in the abortion area,
and it seems to me that with Casey, the Court came to rest,
looked at Roe again, and firmly rearticulated the rights of Roe
v. Wade and a woman's right to reproductive freedom, and so I
think those earlier criticisms that Justice O'Connor had would
not be pertinent subsequent to Casey.
Senator Feinstein. Was this a pro bono client?
Judge Kuhl. No, Senator.
Senator Feinstein. Thank you. Would I have time for one
more question, Mr. Chairman?
Chairman Hatch. Sure.
Senator Feinstein. I wanted to ask you a question on the
subject of sexual harassment. While you served as Deputy
Solicitor General in the Reagan administration, you co-authored
an amicus brief in the sexual harassment case Meritor Savings
v. Vinson. The plaintiff, a bank teller, alleged that her
supervisor, the branch manager, forced her to submit to
unwelcome sexual advances over a 4-year period, during which
time she feared she would lose her job if she refused.
Your brief on behalf of the United States and the EEOC took
the side of the employer. You argued in support of the District
Court's ruling that what occurred was simply a voluntary
personal relationship between coworkers and that that would not
be actionable under Title VII of the Civil Rights Act. Your
brief ignored the power held by a supervisor over subordinate
in these circumstances, as well as the EEOC's own guidelines
providing that sexual harassment can be actionable as long as
the advances are unwelcome.
The Supreme Court unanimously rejected your position in an
opinion written by Justice Rehnquist. Were you involved in the
decision to file a government brief taking the side of the
employer in this case?
Judge Kuhl. I was involved--
Senator Feinstein. Instead of the plaintiff?
Judge Kuhl. I was involved in that decision, Senator.
Actually, the brief--the Supreme Court's decision in Meritor
closely tracked the brief that we filed. The reasoning is
nearly identical to what we were urging on the Court.
The only reason that the Justice Department was not--was
urging a reversal had to do with the very technical
interpretation of the Court's findings of fact. We were not
arguing, that is, the Justice Department was not arguing that
that relationship she had was voluntary. That was the finding
of the trial court. The District Court had found that the
relationship was voluntary. That was the fact we were given to
work with.
That was a technical issue on which the Supreme Court and
we disagreed. It was, in my opinion, much more significant that
this was the first case in which the Justice Department had
argued in the Supreme Court that sexual harassment was
prohibited by Title VII, and I am proud that we took that
position and I stated after the Supreme Court's decision came
down, I stated publicly that the Justice Department was very
happy with the decision in the Meritor case.
Senator Feinstein. I guess I--of course, I am not an
attorney, but I am puzzled by--the EEOC is charged with
enforcing Title VII and, as I understand it, had guidelines in
place setting the unwelcomeness standard, and yet you chose not
to accept that standard.
Judge Kuhl. Well, this issue of voluntariness being--the
question was whether the trial court's finding of voluntariness
was equivalent to a finding of unwelcomeness. The Supreme Court
found that it was not equivalent to a finding of unwelcomeness
and we were very happy with that position. But the District
Court had found that it was a voluntary relationship, and so
that is what we were working with. And as I say, we were very
happy with the Supreme Court's decision and stated that--and
stated that at the time.
Senator Feinstein. Thank you. Mr. Chairman, I don't want to
take any more time, but I have some questions. Perhaps I can
send them--
Chairman Hatch. You take whatever time you would like. I am
happy to wait and I will ask my questions later.
Senator Feinstein. All right. If I may, I will ask another
one, then.
Chairman Hatch. Sure.
Senator Feinstein. Environmental groups, such as the Sierra
Club and the National Resources Defense Council, have written
to me to express serious concerns about your nomination. These
organizations argue that you would bring, and I quote,
``extreme viewpoints to the Federal bench if conferred by the
Senate.'' I would like to submit the NRDC's letter dated
January 28, if I may, into the record.
Chairman Hatch. Without objection.
Senator Feinstein. Thank you, Mr. Chairman.
In particular, there is concern about your legal advocacy
in the Supreme Court case UAW v. Brock while an attorney at the
Solicitor General's Office. In that case, you urged the Supreme
Court to overturn the doctrine of associational standing, and
we talked about it and know what it is.
Specifically in the case, you argued that, and I quote,
``Representative standing by an association should generally
not be recognized.'' The Supreme Court rejected your position.
According to the NRDC letter, associated standing, ``serves
as a basis for standing for every other environmental group
that proceeds to court to protect the environment for all
Americans.'' Can you explain your opposition to associational
standing?
Judge Kuhl. Senator, the position of the United States in
UAW v. Brock, I believe was set before I came to the Solicitor
General's Office. I argued that case. I had just recently come
to the office and I argued it, but I am not on the brief. If
you look at the brief in that case, I am not on the brief.
So again, I didn't have any trouble arguing the position.
It was a position that--well, the government had won in the
court below, so we were defending a winning argument in the
court below in that case. But again, that was an argument made
on behalf of a client.
I can tell you that under California law, which is what I
enforce every day, we basically have no standing requirements.
A person without any injury whatsoever can come into court and
sue. You may be familiar with the 17-200, Business and
Professions Code 17-200 cases, and those are purely private
attorney general cases. There is no standing requirement
whatsoever. And I enforce that law all the time. Maybe I have
a--up until a few months ago, when I became supervising judge,
I had a 17-200 case before me probably once a week.
And so this is an example. I don't carry the advocacy that
I made in the interests of the United States. The United States
often argues for narrow standing, not just in the Reagan
administration, often argues for narrow standing to protect the
executive branch discretion, if you will. And I don't take
those arguments and carry them into my work as a judge.
As far as environmental cases generally, I have support
from Mr. Tom Girardi, eminent plaintiffs' lawyer in the area
who was counsel in the Erin Brokovich cases, and he had some
similar cases in front of me until recently when I took over my
supervisory job. So I think that the litigants who have
appeared in front of me in that area are very comfortable.
Senator Feinstein. Perhaps you would respond to this, in
view of what you have just said. In his memoirs, Order and the
Law, Charles Fried wrote about the active role you played in
attempting to limit the doctrine of associational standing, and
let me read an excerpt from his book, and I quote. ``My deputy
and counselor, Carolyn Kuhl, launched a frontal attack on this
trend, arguing that groups should not have standing to make
claim except as they could show themselves to be
representatives of classes of individuals in traditional class
actions. A vast array of organizations, ranging from the
Chamber of Commerce through the AMA to the NAACP, opposed our
submission. It was rejected by the court with no dissent.''
Now, do you still oppose the doctrine--I am asking you now
for personal view--of associational standing?
Judge Kuhl. Well, I really--I don't have, in a sense,
personal views about cases anymore. I have no problem with what
the Court did in that case. I accept the Court's rejection of
what was a kind of a novel argument. I will recognize that the
UAW v. Brock case was kind of a novel argument. The reason it
was made was because, first of all, we were defending a ruling
that had been made by the lower court. But secondly, the
thought was that applying class action standards would assure
that when an association came before a court, that its members
actually were being represented, all of its members' interests
were being represented if the organization itself was not
injured.
But the Supreme Court rejected that. I have no problem with
that. I would have no problem applying that standard in Federal
Court, and as I say, in State Court, we have a much lesser
standard. We have pretty much no standing. I mean, you don't
even have to be a member--it doesn't even have to be an
association filing on behalf of its members. It can just be an
uninjured individual suing as a private attorney general, and I
enforce that law all the time.
Senator Feinstein. Okay. I would like to read you an
excerpt from a letter I received from Mark Kleiman, an attorney
who appeared before you in the case of Lou v. Moore. Mr.
Kleiman writes, and I quote, ``I represent a whistleblower
named Deborah Moore. Ms. Moore worked as a medical office
biller for a physician. After discovering irregularities in
Medicare and other insurance billing, an outright falsification
of patient charting, Ms. Moore reported what she had found to
various government agencies. She was then sued by her
employer's business partner. California State law includes a
provision to protect whistleblowers and others who speak out to
government agencies or in public fora from being subject to
frivolous lawsuits. These lawsuits are commonly known as SLAPP
suits, Strategic Litigation Against Public Participation.
California laws give defendants who are the victims of
frivolous lawsuits, such as SLAPP actions, the right to move
for dismissal and to obtain attorney's fees and costs. The
defense of Ms. Moore involved a significant amount of work and
Ms. Moore incurred nearly $40,000 in legal fees. Then the
plaintiff voluntarily dismissed his action against Ms. Moore
just days before a crucial hearing. Judge Kuhl, however,
refused to award Ms. Moore the attorney's fees to which she was
entitled.''
Mr. Kleiman goes on to say that the appellate court
reversed you, holding that your decision, ``constitutes a
nullification of an important part of California's anti-SLAPP
litigation and relieved the plaintiffs of the punishment which
the anti-SLAPP statute imposes on persons who use the courts to
chill others' exercise of their constitutional rights.''
Could you please respond to Mr. Kleiman's and the appellate
court's criticism of your decision in this case?
Judge Kuhl. I would be glad to try to do that, Senator.
That was an issue of first impression and Mr. Kleiman properly
describes what the SLAPP statute is designed to accomplish. In
that particular case, what is called a SLAPP motion was brought
by this whistleblower defendant, saying that there was no basis
for the litigation. Now, ordinarily, litigation can be filed
and we don't test at the beginning of the litigation whether
there is a basis for the lawsuit. But when it is a SLAPP
lawsuit, in other words, when someone is exercising their First
Amendment rights or reporting something to the government, then
there is a higher standard involved.
So in this case, the defendant's motion was that the
lawsuit should be dismissed because it didn't have an adequate
factual basis. I never got to hear that motion because the case
was dismissed by the plaintiff. No doubt seeing this motion,
they thought they couldn't defend it perhaps, and they
dismissed it.
The issue of first impression was what power remains to the
court at that point. The statute said that when a motion is
granted, when a SLAPP motion is granted, fees may be awarded. I
never had a chance to decide that SLAPP motion, so could I
award fees or not? And so it was an issue of statutory
construction and an issue of first impression.
I struggled a good bit with the issue of, well, what is the
jurisdiction of the court when the case has gone away? The
court of appeal handled that, I thought, well, and not in a way
that was argued to me on the trial court, and the court of
appeals said the court always has authority to decide adjunct
issues that remain when the case is dismissed.
As I say, it was an issue of first impression. Justice
Walter Croskey wrote the decision and you have a letter from
him in support of my nomination, and I thank you also for
having recognized those letters in my support, Senator.
Senator Feinstein. Thank you. While you were in private
practice, did you participate in any litigation on a pro bono
basis, and if so, could you tell us which cases and the general
subject matter?
Judge Kuhl. Yes, I can, Senator. I took on matters that
were referred by public counsel, and these were matters--one
was on behalf of Enorma Mays and one was on behalf of Leonore
Gonzales. Each of these cases involved the very sad situation
where people with--in lower socio-economic brackets may be
preyed upon by people trying to take their home, a kind of--
they would fraudulently record a deed or forge a deed, and both
of those cases were variations on that situation. I filed suit
on behalf--in the separate cases on behalf of each and,
happily, was able to get title back in the hands of my clients
and have their homes restored to them.
Senator Feinstein. Any other pro bono cases?
Judge Kuhl. Those would have been the ones, Senator. For
the 9 years that I was in practice after I was in public
service with the government, I was having my children, and they
are here, and I am very proud of them. I think I have done
pretty well. But I was trying to hold down a partnership in a
major law firm and to raise my children. But what I am happy to
say is that there came a point when I was able to undertake
public service again and to go on the bench and become a
Superior Court judge.
Senator Feinstein. In 1993, when you drafted a brief for
Mary Baldwin College in support of the constitutionality of the
exclusion of women from the Virginia Military Institute, were
you working for the organization on a pro bono basis, and how
did you decide to take on Mary Baldwin as a client instead of
another public interest organization?
Judge Kuhl. That brief actually, in the VMI case, was not a
brief in support of the constitutionality of VMI. The position
taken in that brief was that the court should accept the VMI
case. It was a brief in support of the petition for certiorari.
It was asking the Supreme Court to take that case so as to
clarify that all-women's schools could--were not
unconstitutional, essentially.
The brief, if you look at it, mostly is a defense of all-
women's schools and the value of single-sex education for
women. It does--it is in support of VMI in the sense that says,
yes, Supreme Court, please take this case, but it does not
offer any constitutional argument in support of what VMI was
doing. So it was a narrow brief under those circumstances.
It was filed on behalf of the women's organizations. It was
referred to me through counsel who was representing VMI; in
other words, the VMI, perhaps, had found three colleges in
Virginia who wanted to file a brief, but their brief was
limited, and the major portion of it was kind of a, we call
them ``Brandeis briefs,'' in support of women's education, as
women's single-sex education.
Senator Feinstein. What was the group that you represented
that Mary Baldwin was part of? What was the organization?
Judge Kuhl. I may be wrong, but my recollection is it was
just the three colleges. It wasn't a group. It was the three
women's colleges in Virginia.
Senator Feinstein. So you are saying the point of the brief
was to sustain three women's colleges?
Judge Kuhl. The point of the brief was these women's
colleges said we feel that the decision of the Court of Appeal
has made us uncertain about the constitutionality of what we do
and maybe whether we can keep getting tax exemptions. So,
please, Supreme Court, take this case and clarify that single-
sex education for women is not unconstitutional.
Senator Feinstein. Do you happen to recall what the three
women's--these were private women's colleges?
Judge Kuhl. They were private women's colleges. It was Mary
Baldwin--I'm just not remembering, Senator, I'm sorry.
Senator Feinstein. Perhaps you could get that to me.
Judge Kuhl. Surely, I would be glad to.
Senator Feinstein. I would like to read the brief.
Judge Kuhl. Yes, I would be glad to get the brief to you,
Senator.
Senator Feinstein. Thank you very much.
I see Senator Durbin. Thank you very much, Mr. Chairman. I
appreciate the time. Thank you.
Chairman Hatch. Thank you, Senator. I know you take these
matters seriously, and I was glad to be able to give that time
to you.
Let me take my time for questions now and just ask a few,
along the same lines, if I can.
Judge Kuhl, in response to written questions from Senator
Boxer, you stated that, ``The Federal Government has, and
should, play an aggressive, vigorous role in fighting
discrimination.''
You also stated, ``The civil rights laws have had a major
impact in changing our society for the better, including by
giving the Executive Branch the power to punish unlawful
discriminatory conduct in employment, housing, Government
contracting and Federal programs. The Government must continue
to be a force for change by rooting out discrimination under
its statutory mandates and bringing actions to compensate
victims of discrimination.''
Now, your record and reputation as a judge supports this
commitment to following our civil rights laws. Let me ask you
about one specific case, and I hope I am pronouncing this
correctly. It is Frances Iwekaogwu--is that about right?
Judge Kuhl. I think that's about right, Senator, yes.
Chairman Hatch. It is close enough.--v. City of Los
Angeles. Do you recall this case?
Judge Kuhl. Yes, I do Senator.
Chairman Hatch. Can you please just tell us about it a
little bit.
Judge Kuhl. Yes, this was a case--and I think the
pronunciation is Iwekaogwu. That's the way I pronounce it--but
this was a case that came before me during about a three-month
period that I sat as a pro tem justice of the California Court
of Appeal, and I wrote the opinion in that case.
It was about a Nigerian-born African-American employee--
engineer--who was an employee at the County of Los Angeles, who
the jury found had been discriminated against and had been
retaliated against for complaining about discrimination. And in
that case, the jury's fact-findings were being challenged, and
my opinion recites the evidence in favor of the plaintiff in
order to support the position of the jury award, and it also
affirmed an award, a rather substantial award, of emotional
distress damages for the plaintiff.
We published the decision--my colleagues and I published
the decision--because it takes some Ninth Circuit precedent
speaking to the issue of what evidence may be offered in
support of a race discrimination claim and takes that law into
California law. So that is why we published it.
Leo James Terrell, the attorney for Mr. Iwekaogwu, has
written a letter strongly supporting your nomination. In his
letter he said that he is an attorney for the NAACP and a life-
long Democrat. He also say that you were, ``A major factor in
the successful resolution of that case.''
He continued on saying, ``During the lengthy litigation
process, I found that Judge Kuhl was fair, impartial, competent
and at all times extremely professional. I, personally, have no
problem with the appointment of a Republican judge to the Ninth
Circuit bench as long as that judge is fair and impartial.
Judge Kuhl is just that person.''
``I submit that your decision regarding the appointment
should be based solely on the competency of the judicial
candidate, not on politics. I will do everything in my power to
ensure that Judge Kuhl receives a nomination and to see that
this nomination obtains the advice and consent of the Senate,
as well as the public.''
I will submit that letter for the record, without
objection.
Now, Judge Kuhl, I would like to ask you a few questions
about your role in the Bob Jones University case, since that
has come up. Let us get one thing clear at the outset, your
views in 1982 on the position of the United States in the Bob
Jones case were never meant to endorse racially discriminatory
policies of Bob Jones University, were they?
Judge Kuhl. That's correct, Senator. We were focusing on
the narrow legal issue of the IRS's statutory authority.
Chairman Hatch. And you have never agreed with those
discriminatory activities of Bob Jones University.
Judge Kuhl. I certainly have not, Senator, and I hope that
my performance as a judge shows that I value the diversity of
the legal community and the community at-large in which I work
and that I strive to continue to work of enforcing the civil
rights laws that have been such a wonderful force for change in
our society in the last 40 years.
Chairman Hatch. What was your position at the Justice
Department at the time the Bob Jones case arose?
Judge Kuhl. I was a special assistant to the Attorney
General.
Chairman Hatch. How old were you at that time?
Judge Kuhl. I was 29.
Chairman Hatch. Twenty-nine. How long had you been out of
law school at that time?
Judge Kuhl. I'm going to say I think it was about two-and-
a-half years, perhaps closer to three.
Chairman Hatch. Did you have any decision-making authority
at the Justice Department at that time in that position?
Judge Kuhl. No, sir.
Chairman Hatch. In a recent Legal Times article, Charles
Cooper, a highly respected Washington lawyer, who worked with
you at the Justice Department, supported the fact that you were
a junior lawyer at the Department at the time of the Bob Jones
case. He characterized the left-wing group's description of
your role in the decision-making process as ``unfair,'' and
``grossly incomplete.''
Now, speaking of your role, Mr. Cooper said that Judge
Kuhl, ``Wasn't making policy. She was taking notes when she and
I were even in the room.''
Now, it is now 21 years later from when you, as a young
lawyer, without any real authority, were in the Justice
Department. You have been a State trial judge for 7 years,
since 1995. Prior to that, you were a partner in a well-
regarded Los Angeles law firm, really well-recognized all over
the country. You now believe that your position on the Bob
Jones case in 1982 was wrong, for a variety of reasons, and you
have so stated that.
If I understand your answers correctly, you believe that it
was wrong because it appeared insensitive to minorities,
regardless of the nondiscriminatory motives of the persons
advocating or advancing this position.
If I understand you correctly, you also believe it was
wrong because, indeed, it was the duty of the Justice
Department to defend Federal agencies, which it did not do
here.
Now, is my understanding basically correct here?
Judge Kuhl. Yes, Mr. Chairman, it is.
Chairman Hatch. I want to share the Committee an op-ed that
you have mentioned, written by Harvard law professor, and
former Solicitor General Charles Fried, for whom you worked
several years after the Bob Jones case was decided.
Now, in that op-ed, which was published on January 17th of
this year in the Los Angeles Times, Professor Fried says, ``The
left-wing rap against Kuhl is that more than 20 years ago, as a
29-year-old junior member of the U.S. Attorney General William
French Smith's staff, she expressed a view that, however odious
the practices and beliefs of Bob Jones University, it was not
the job of the IRS to make social policy by deciding which
nonprofits would enjoy the tax exemptions mandated by
Congress.''
Now, is that a fairly accurate summary of your views at
that time?
Judge Kuhl. Yes, Senator.
Chairman Hatch. Mr. Fried continued, ``Certainly, Kuhl, a
devout Roman Catholic, could have harbored no personal sympathy
for the virulently anti-Catholic University. By the time Kuhl
came to the Office of the Solicitor General as my deputy in
1985, I knew she had come to believe, as did I, that she had
been wrong if, for no other reason, than seeming to side with
Bob Jones confused the Reagan administration's message that we
were strongly committed to civil rights and racial equality,
while opposed to quotas.''
I will submit a copy of that editorial for the record,
without objection.
Now, Judge Kuhl, is Professor Fried right when he says that
by the time you began working for him in 1985, you had already
determined that your position on the Bob Jones case was wrong?
Judge Kuhl. Mr. Chairman, yes, Professor Fried is correct
in stating that.
Chairman Hatch. And it was a narrow position at that time,
basically one that you did not think that the IRS should be
setting policy.
Judge Kuhl. That's correct, Mr. Chairman.
Chairman Hatch. Now, I think it is important to note that
you have long held your belief that your original position on
the Bob Jones case was wrong. Now, this is not a so-called
``confirmation conversion,'' and anybody who tries to make it
that is--to use the word again--wrong.
Now, you have carried this belief with you for 21 years.
Now, it takes an honest person of great integrity to admit when
she is wrong, and I commend you for it here.
Now, just to clarify. Judge Kuhl, the memo you wrote, to
which Senator Leahy referred on the Bob Jones case, was not an
appeal, a recommendation on appeal certiorari or amicus curiae
matter or it certainly was not a recommendation in those areas,
was it?
Judge Kuhl. That's correct. It was a memorandum to, I
believe, the assistant attorney general, and I was at that time
a special assistant to the Attorney General.
Chairman Hatch. The reason I bring that up is because we
get continuously this argument that the seven living former
Solicitors General should be ignored in the Miguel Estrada case
and that certain Democrats should be allowed to have a fishing
expedition into the recommendations on appeal certiorari and
amicus matters, which of course this was not; is that correct?
Judge Kuhl. That's correct.
Chairman Hatch. Judge Kuhl, my time is up. I will turn to
the esteemed Senator from Illinois, Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman.
Thank you, Judge Kuhl, for joining us.
I was out at another meeting, and I came back to hear both
Senator Feinstein and Senator Hatch say that you do not hold to
the position on Bob Jones University, in which you wrote in a
memo 21 years ago as an employee of the Department of Justice;
is that true?
Judge Kuhl. That is correct, Senator Durbin, yes.
Senator Durbin. Let me ask you if positions that you have
taken relative to affirmative action, where you referred to it
as ``a divisive societal manipulation,'' have you changed your
position on that?
Judge Kuhl. Well, Senator, since I wrote that article,
first of all, the primary thrust of that article was to state
the importance of individual remedies and of putting persons
who have been discriminated against back in the place where
they should have been, absent that discrimination, and that was
the thrust of that article.
Since I wrote that article, however, the Supreme Court--
that article was written at a time when the Supreme Court was
very much up in the air about race-based remedies when there
had been prior discrimination. Since that time, the Supreme
Court has come to rest on that issue in the Adarand case and
has held that in appropriate circumstances, race-based remedies
can be used to remedy past discrimination.
Senator Durbin. Have you changed the position you stated in
the Thornburgh case, in which you called on the Supreme Court
to abandon Roe v. Wade?
Judge Kuhl. Well, Senator, since the Thornburgh brief was
written, the Casey case has been decided. Casey looked at Roe
again, considered the criticisms that had been made of that
decision and reaffirmed that decision. Casey is the law of the
land. It strongly reaffirms the right, the constitutional right
to women's reproductive freedom, and I would apply that
precedent fully and completely. I have absolutely no trouble
with that, Senator.
Senator Durbin. So it is a basis of, I mean, do you accept
the Court's premise of the privacy issue here?
Judge Kuhl. Yes, certainly.
Senator Durbin. Then, let me ask you about a specific case,
which I have found to be the most troubling of anything you
have been involved in, Sanchez-Scott v. Alza Pharmaceuticals.
In this case, a breast cancer patient went to her
oncologist for a routine visit. During this visit, the doctor
brought a man, described only as ``a person who was looking at
Dr. Polonsky's work'' into the examination room. This man
turned out to be a drug salesman for Alza Pharmaceuticals, as
the patient later found out. This man, this drug salesman in
the doctor's office, watched the examination, which included
removal of the patient's shirt and bra. Citing an invasion of
privacy, the patient sued the salesman and the pharmaceutical
company.
You rejected the invasion of privacy claim by the breast
cancer patient, when this drug salesman was invited into the
room to watch this woman disrobe for the medical evaluation.
On appeal, the Court of Appeals unanimously found in favor
of the plaintiff, reversing your decision.
Would you like to explain your concept of privacy, as it
applies to that fact situation?
Judge Kuhl. Yes, Senator.
First of all, I think it's important to recognize, in that
case, that the woman, I'm sure, was very upset with her doctor,
and had a right to be upset with her doctor, for allowing this
third person into the examining room. She did have a tort claim
against the doctor that was part of the lawsuit, but was left
standing by my decision, and was not interfered with at all. In
other words, her claim against the doctor that he didn't get
her consent to allowing this person to come in, that claim was
going to go forward.
Senator Durbin. But I take it you rejected her claim
against the salesman in the room and the pharmaceutical company
that he worked for.
Judge Kuhl. That claim was the claim that was before me,
and the Court of Appeal had I think a closer focus in that
situation on the seriousness of the invasion, not just because
of the presence in the room, but because of what also happened
in the room, and they also--
Senator Durbin. It is a pretty outrageous situation, is it
not?
Judge Kuhl. I think it is an outrageous situation.
Senator Durbin. But you did not see it as an invasion of
privacy?
Judge Kuhl. Well, I was trying to interpret California law.
What was being cited to me was Michigan precedent. I think that
the Court of Appeal has clarified the law in this area. I am
happy that it has been clarified. I have certainly no problem
with what the Court of Appeal did.
And Justice Paul Turner, who wrote the decision in that
case, has written in support of my nomination, and I think
addresses, in some detail, this decision and states that,
although he overturned it, there were strong arguments to be
made in support of it.
But let me restate again, I think that the woman had very
good reason to be upset, and good reason to be upset with her
doctor for letting this third person in the room.
Senator Durbin. But had no right to a claim of action
against the person who was brought into the examining room, nor
the company he worked for.
Judge Kuhl. After looking at the law was presented to me,
that was the conclusion that I reached, but the Court of Appeal
has clarified that. I am very happy with the Court of Appeal's
decision, and I certainly would follow that in the future.
Senator Durbin. I would think common sense would have
clarified that.
Let me ask you about an article that you wrote in the New
York Times on June 16, 1993. Were you working for the
Department of Justice at that time?
Judge Kuhl. No, Senator, that--I'm sorry--was--
Senator Durbin. After your--
Judge Kuhl. I can see it through the paper. I think I know
what you are referring to.
Senator Durbin. ``Clinton dithered, Reagan didn't.''
Judge Kuhl. I was in private practice at that time.
Senator Durbin. You have got an interesting paragraph in
this story, and I think the Chairman should take a look at
this, as well as other members, and here is what it says, and I
quote, ``President Ronald Reagan knew what he was looking for
and how to find what he wanted. He had a clear view of how he
wanted Supreme Court jurisprudence to change and had an
intelligent, discreet and trusted advisory, William French
Smith, his first Attorney General, who knew how to organize the
selection process.'' And then you go on to talk about the
process followed by President Reagan in filling Supreme Court
vacancies and the process followed by President Clinton.
Is it fair to conclude from that paragraph that you are
saying that President Reagan--you speak in positive terms here,
that he did not dither--had at least a concept of an ideology
that he was seeking? And, if so, is your ideology part of the
issue that we should consider here as you seek this important
position?
Judge Kuhl. Senator, what I was talking about in that
article was the selection--President Reagan's side of it--what
I was talking about was the selection of Justice Sandra Day
O'Connor. And I know that President Reagan, I know that
Attorney General--I certainly know that Attorney General Smith
was very proud of that nomination, and I assume the President
was as well.
I think it was clear that President Reagan and Attorney
General Smith wanted judges who would follow the law, who would
interpret, as best they could, what the legislator enacted and
who would not themselves legislate, and that's what I was
talking about.
Senator Durbin. Strict constructionism?
Judge Kuhl. I would reject that label, Senator. I think
that I am just a constructionist, if you're applying it to me.
Senator Durbin. I am just asking. What--
Judge Kuhl. What I try to do, and maybe this can--
Senator Durbin. Was Justice William Douglas a
constructionist?
Judge Kuhl. Well, maybe this can help, Senator
When I was sworn in seven-and-a-half years ago as a judge
of the Los Angeles Superior Court, I quoted Justice Felix
Frankfurter as the type of judge that I wanted to be. And
Justice Frankfurter said that the highest duty of a judge is to
put aside one's personal will and one's private views and
follow the law, and that's what I believe. I said that then,
seven-and-a-half-years ago, on the occasion of my swearing in
as a judge of the court I am now on, and that is my model.
Senator Durbin. I would like to submit some questions for
the record, since I do not have enough time to get into them
here, about your views as a constructionist. Usually, people
try to say what kind of constructionist they are, but you are
now in a generic category, and I assume there are strict
constructionists, and flexible constructionists, and liberal
constructionists, and conservative constructionists, but you
are just a constructionist.
And I am going to ask some questions, if I can, to follow
up in writing as to what that really means and how that might
apply to a given case.
Let me just close, Mr. Chairman, with your permission, I
would like to ask that a letter from Senator Boxer, as well as
several organizations, relative to this nomination be made part
of the record.
Chairman Hatch. Without objection.
Senator Durbin. Thank you very much.
Thank you, Mr. Chairman.
Chairman Hatch. We will turn to Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
First, I would like to say I did not hear all of the
distinguished ranking member's comments about the ``blue slip''
policy with regard to Circuit Court of Appeals, but it is clear
that it has never been the policy of this Committee that one
Senator who happened to be in the circuit could block a
nominee.
In fact, I remember very distinctly, not long after I came
to the Senate, that when President Clinton was President, and
you were Chairman of the Committee, and that a Republican
member said we should adopt such a policy, and there was a
debate within the Republican Conference, and you spoke
forcefully and aggressively that it was not a good policy, and
there was a vote, and your position prevailed.
And it has never been the policy of this Senate that, with
regard to Courts of Appeals nominees, a single blue slip is a
decisive factor. In fact, the Presidents have always asserted
that they have much less need, with regard to a regional
appointment like a circuit judge, to seek home State approval
even.
We just had one from Alabama, one from the Eleventh
Circuit, and the President makes his own pick, basically, and I
think that is a healthy thing. So I just would want to defend
you on that.
Judge Kuhl, with regard to this matter that you were just
being asked about, about the doctor and the drug company
representative being in the examining room, let me just say it
is amazing to me how much drug company representatives are
involved in medical practice. Sometimes they know more than the
doctor. Sometimes they are known to come in and give advice on
operations and things of that nature. So it is an odd thing to
me that that occurs, but do I understand that the doctor had
approved this man coming into the room?
Judge Kuhl. The doctor had brought the third person into
the examining room.
Senator Sessions. So the doctor, who had the care of the
patient under his control, invited this person to come into the
room; is that correct?
Judge Kuhl. That was my understanding of the facts, yes.
Senator Sessions. And you allowed the lawsuit to go forward
against the physician, but did not allow it to go forward
against the third party who the doctor had allowed to come into
the room.
Judge Kuhl. Yes, Senator.
Senator Sessions. Well, that, to me, is a close call at
best. I think that is what law is all about--who is responsible
for the bad act occurring. You allowed the case to go against
the responsible party, it seems to me, and I am not sure that--
I think a good case can be made that if he was asked into the
room or allowed to come into the room by the physician that the
person should not be held liable under these circumstances. I
just do not know, but I do not think that is an extreme opinion
at all.
Mr. Chairman, I have to go to the floor to preside, and I
would yield back my time.
I would just say this nominee's record is extraordinary.
She has got a tremendous background and not only has the
academic background, she clerked for Justice Anthony Kennedy on
the Ninth Circuit, which is the circuit you will be going on, a
great justice, and in the course of that, that is the finest
experience that a court judge can have, to clerk on that very
same court. She finished academically with the highest honors
and has had just a terrific record on the bench in California.
All of these judges writing on your behalf has got to be a
source of great comfort and affirmation for you. So I
congratulate you, and I think she will make an outstanding
member of the bench.
Chairman Hatch. Thank you, Senator.
We will turn to Senator Kennedy.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much.
Welcome, Judge.
Judge Kuhl. Thank you, Senator.
Senator Kennedy. I regret that I was not here earlier.
I took the opportunity this morning to go to the Supreme
Court and to hear the University of Michigan case, and as I sat
in the court, I was mindful that next year we are going to have
the 50th anniversary of the Brown v. Board of Education.
And I am also very mindful that I think the issue of
discrimination, and racism, and bigotry are--America will never
be America until we free ourselves from it. That is why I
believe that this case is so important because I believe that
if it is decided in certain ways, with the Voting Rights Act
coming up in another year, the extension for the Voting Rights
Act, it could perhaps have profound implication on this and
really be perhaps a watershed kind of decision, in terms of how
this country is going to proceed with issues of discrimination
in our society.
It was, obviously, extremely well-argued by both sides, but
it still, I think, underlies really, at least for me, the
importance of civil rights in our society. As you well
understand, we wrote discrimination into the Constitution, we
fought a Civil War. Dr. King led us, in a very important way,
over a long period of time, but we are still wrestling with
this problem, and there has been a variety of different,
obviously, decisions which have had important implications in
the recent times, but it is an area which I am very interested
and strongly committed to.
So I hope you will just understand if you will come back
and revisit at least the Bob Jones situation. I know that I
listened to the comments of our Chair and also your responses
to that situation, and it was some time ago.
It is one thing to have an opinion about the Bob Jones case
and have a view about it, but I am looking through your
activity during this period of time as a high-level Government
lawyer in the administration--the Reagan--you worked to reverse
the longstanding policy granting the tax exemption of racially
discriminatory private schools, and you sought to reverse the
policy, over the objections of the head of the IRS, and the
acting Solicitor General, and then the head of the Office of
Legal Counsel, Ted Olson.
And more than 200 employees of the Civil Rights Division
signed letter opposing the Reagan administration position in
the Bob Jones case, as casting serious doubt upon the
Division's commitment to enforce vigorously the Nation's civil
rights.
I remember this case very, very clearly, and it was a
major, major cause celebre, in terms of the consideration and
the judgment on it.
And then the Supreme Court rejected the arguments that you
had sought to put forward, to deny tax-exempt status to
racially discriminatory schools. Only one justice, one justice
only, Justice Rehnquist, dissented.
And then in response to the written questions from Senator
Boxer, you said that you had no decision-making authority with
respect to the Government's position and that the decision was
made by the Attorney General.
I am sure it is correct the Attorney General made the
ultimate decision, but it appears you took a prominent role.
You co-authored a 40-page memoranda. The then head of the Civil
Rights Division, Bradford Reynolds, arguing the IRS policy of
denying tax-exempt status to racially discriminatory schools
should be changed.
You wrote a memo to Ken Starr, collecting Reagan campaign
material, showing that Reagan, as a candidate, had opposed IRS
attempt to remove the tax-exempt status of these schools, and
statements from the 1980 Republican platform, opposing the
IRS's position policy.
And in a book written about the role of the Solicitor
General, it is noted that the Reagan administration's interest
in the case bubbled up from the middle ranks, especially from
you and another attorney. You are described as a key member of
the Bob Jones team, that you sought to reverse the IRS policy,
circumventing the acting Solicitor General to do so.
So the issue is why you felt that you had to play such an
unusually active role in getting the Government to restore the
tax-exempt status to the racially discriminatory schools. I
know it has been a long time, and as I believe you have
answered that in terms you did not believe the IRS ought to be
making that judgement. If there is anything you want to--
Can you cite a case in which you have held for civil
rights' plaintiffs? Have you had any cases?
Judge Kuhl. Yes, Senator, I can, and I appreciate your
saying, harking back to that time of Bob Jones and saying it
was such a big case. It was way over my head at the time. I
really, as I have said in my answers to Senator Boxer, it was
wrong because the Justice Department should have been defending
the traditional position of the IRS, and it was wrong because
it didn't put nondiscrimination first, and that's where the
emphasis should have been, despite the concerns about what the
IRS might do in the future to all-women schools or whatever,
which was what was in my head.
But with respect to my current record, Senator, I'm very
proud of the decision that I wrote during the time that I sat
on the Court of Appeal in the case called Iwekaogwu, and in
that case the Court of Appeal--I was writing for them--affirmed
the jury verdict in favor of a civil rights plaintiff, an
African-American who had been discriminated against in the
workplace in county employment, and upheld a very significant
emotional distress award in his favor.
In that case, we took Ninth Circuit precedent that is very
strong in favor of the types of evidence that can be presented
in discrimination cases in favor of the plaintiff and put into
that State law.
So I'm very proud of that decision, and I'm also proud that
civil rights lawyers who know my work, such as Leo Terrell, who
was counsel in that case, have written on my behalf and Vilma
Martinez, whom I have known for many years.
Senator Kennedy. Well, again, that is impressive because I
have very high regard for her. I know her well.
If you have other cases on this, we would welcome them.
You said, as I understand this morning, that while you are
still the justice, you expressed regret to Charles Fried about
the Bob Jones case. As I understand, Fried had said that you
did come to him and tell him that the position you took was
wrong politically because it sent the wrong message. What do
you remember, when you said you took the wrong position, did
you believe it politically because it was just basically wrong
in terms of the underlying values of the consideration of the
case. Do you remember?
Judge Kuhl. There wasn't any one particular conversation
that I recall, but I know that we had discussion about Bob
Jones, and certainly we did say that taking that position had
been really a disaster for the Reagan administration, absolute
disaster.
But I also felt--I don't know whether I expressed this to
Charles Fried--but I also felt that we really had had the wrong
focus there for the reasons I have stated and that the policies
of nondiscrimination should have come forward, and any problems
we had about potential IRS overbreadth should have been taken
care of through legislation or regulations, but I didn't have
the breadth to see that at that time.
Senator Kennedy. Let me just continue on this point.
This is not the only case that gives me concern. The Reagan
administration actually rolled back protections for minorities
in cases such as school desegregation and affirmative action.
While working in the Solicitor General's Office, you signed
onto briefs that opposed remedial affirmative action in that
Local 28 of the Sheet Metal Workers' case. The union in that
case had egregiously violated Title VII, they administered
discriminatory entrance exams, paid for cram courses for
relatives of members that were unavailable to minorities,
favored white applicants, while denying transfers of qualified
blacks, and issued temporary work permits to white members of
distant construction unions, but despite the evidence of
intentional discrimination, you opposed affirmative action
programs to remedy this discrimination.
Then, in private practice, you wrote an article making
plain your opposition to affirmative action. Indeed, you
criticized Affirmative Action as a divisive societal
manipulation.
Is there anything you want to tell us about that Sheet
Metal case or your views about affirmative action. The real
question I have is how can you give us assurance, based on your
record, that you will be fair on civil rights cases, and you
will be able to set aside your political views?
Judge Kuhl. Certainly, Senator. I want to emphasize that in
the article, the primary thrust of that article had to do with
my feeling that there needed to be a real insistence on
seriously taking individual remedies seriously; that is,
sometimes in class actions, there will be an overall remedy,
but the people who should have been given jobs and who lost
those--didn't get those jobs because of discrimination, need to
be put where they should have been, and that was the point of
that article.
But with respect to my current perspectives now, I have
minorities--plaintiffs--come before me all the time. I am proud
that this is a record that I have, that I have the support of
the bar, both sides of the bar. And more importantly, having
lived in Los Angeles now for some period of time, this is a
very multicultural environment that I live in and one that I'm
really very proud of.
I was recounting, to some of my friends, that I had bene to
a Chinese-American Bar Association event about a week-and-a-
half ago, and this was on a Friday evening. It was crowded and
so forth. But here at this event, Justice Carlos Moreno, a
recent appointee to the California Supreme Court was there. I
was sitting at the table with my former colleague, Enrique
Romero, and I was sitting next to my colleague, George Wu,
Karen Nobumoto, who is former president of the State bar,
former president of African-American Lawyers, who was receiving
an award, local political figures, local and statewide
officeholders were there.
And it was just, it really made me smile because here was
an example of a way to affirm cultural identity, but yet open
up, in this professional context, and have all groups come
together in harmony, knowing each other, respecting each other
and working together. And that is the kind of society that I
would hope for, Senator.
Senator Kennedy. Well, I think I could not agree with you--
I think if you look back over the history of a lot of those
nominees, you would find out that a lot of them had a lot of
difficulty in getting to where they are and are now serving
with great distinction.
That is not, in terms of your kind of situation, but it
does, I think it is important, and that is what we are
attempting to achieve.
I would just ask you a global question, and it is along the
lines of what I have mentioned before. We, obviously, entrust
the Federal judges with protection of the highest ideals of our
republic. They should actively protect the rule of law and play
a special role in advancing the civil rights and civil
liberties, and they should stand against discrimination in our
society, and they should prevent the personal views of anyone
from interfering with the rights of people.
Now, let me, if I can, make this point. You, however--and
then get your reaction--appear to be an activist--I want to
hear how you respond to this--an activist for your political
goals. You have taken extraordinary steps, while a Government
employee, to push the Government to call for overturning the
Roe v. Wade. You have chosen to defend restriction on a woman's
right to choose, even when those restrictions were clearly
contrary to Federal law.
You have been specifically named as one of a band of the
young zealots who tried to have the Federal Government weigh in
on the side of racially discriminatory policies of higher
education. You argue in favor of the Virginia Military
Institute policy of discriminating against women. You argued
that a woman who suffered humiliating sexual harassment at work
was not entitled to any compensation under antidiscrimination
laws. As a judge, you dismissed a case brought by a breast
cancer victim after her doctor invited a drug salesman into the
examination room while the doctor examined her. The two men
apparently mocked the patient.
In all of these cases, the position you supported, was
rejected. If you become a judge of the Ninth Circuit, how can
we be sure that you will not continue this sort of lack of
sensitivity on issues of civil rights and women's rights
issues?
Judge Kuhl. Senator, the positions that I took as an
advocate, I put those aside, and I put aside my role of
advocacy when I became a judge seven-and-a-half years ago. I
now have a record as a bench officer that I am very proud of,
in support of the rights of all people who come before me.
And as a trial judge, you know, you see these people face-
to-face that come into your courtroom, and it is so apparent to
me how important it is that people who come into my court not
only are fairly treated, but feel fairly treated, and that is
the sensibility that I bring to my job as a judge, following
the law, whether or not I agree with the law, and treating
everyone who comes before me fairly, without regard to their
social station, without regard to their race or their
ethnicity.
And I take great joy in working with our highly diverse
juries that we have in Los Angeles, who come together and just
do such a wonderful job putting aside who they are, what their
social station is and working together to make our jury system
work so well.
So those are some of the things that I am committed to,
Senator. And I think that the support that I have from my
colleagues, from the Court of Appeal justices who know my work
and have written on my behalf, from 23 women colleagues who
have written on my behalf, and from the bar, generally,
including the plaintiff's bar, even though I was a defense
lawyer, I think all of that speaks to my performance as a
jurist and to the fairness that I bring to the job.
Senator Kennedy. I believe my time is up.
I will yield to Mr. Chambliss, if I can do that, before
Senator Hatch comes back.
[Laughter.]
Chairman Hatch. I am here, but did you have any further
questions?
Senator Kennedy. No, that is fine. Thank you.
Chairman Hatch. We will go to Senator Chambliss, then.
Senator Chambliss. Thank you, Mr. Chairman.
Judge Kuhl, I notice that you are a graduate of Duke, and I
will have to tell you that I am not going to let it cloud
consideration of your nomination that the Duke women beat my
University of Georgia women over the weekend. But it was a
great ball game.
I don't want to leave hanging what Senator Durbin was
talking to you about because I can see the argument on the
floor right now. Somebody is going to take your comments about
being a constructionist of the Constitution. I want to give you
an opportunity to expand on that a little bit.
If anybody asks me, after practicing law for 26 years, what
category I would fit in with respect to the Constitution, I
tend to think I would be more of a strict constructionist. As I
judge, I am hearing you say that maybe you are a little more
moderate than that, but I don't want to put words in your
mouth. I want to give you an opportunity to say what you really
mean by that.
So let's start off talking about the Constitution and how
you as a member of the Ninth Circuit bench would approach any
case that has constitutional issues. What would be your
response to any case coming before you with respect to
constitutional issues and your interpretation thereof?
Judge Kuhl. Well, perhaps I wasn't too clear in my response
to Senator Durbin, mainly trying to avoid labels because I
don't find them to be very helpful. But I think in approaching
a constitutional issue, one approaches it first with the
language of the Constitution, the history of the enactment in
that provision in the Constitution, and importantly also the
precedents that have evolved under that constitutional
provision. And those, I think, have to be the foundation of
where one turns for beginning a constitutional analysis.
Senator Chambliss. I think you could not have been clearer
in your statement about precedents, irrespective of what
personal feelings you have. You obviously have a terrific
reputation as a trial judge on the Los Angeles Superior Court
bench and I just want to confirm the fact that, as you have
already stated, whatever your personal feelings may be, you
would look at what the law says, what the precedent is with
respect to any issue, be it a social issue, a criminal issue,
or a constitutional issue, and that is how you would
interpret--or you would abide by those precedents in
interpreting the set of facts that might be before you.
Judge Kuhl. That is correct, Senator. That is what I have
taken on as my responsibility as a judge and a responsibility I
hope I have discharged well.
Senator Chambliss. I don't want to go back and belabor the
point again, but Mr. Durbin asked you about the case Sanchez-
Scott v. Alza Pharmaceuticals, and also Senator Sessions did.
There were some comments about the letter from Judge Paul
Turner, who is the Presiding Justice on the California Court of
Appeals. He was the author of the opinion that overturned your
decision in this case.
Very honestly, he writes a pretty good opinion in this
letter regarding that case and he talks about how you made a
very well-reasoned decision and it was a very touch call for
you to make. And his decision overturning your decision, he
gives again some pretty good rationale as to why you thought
the way you thought and how your opinion was written, and also
how his opinion was written.
Mr. Chairman, I would like to enter this letter in the
record.
Chairman Hatch. Without objection, we will put it in the
record.
Senator Chambliss. I want to go to another case, Judge
Kuhl. I understand that some of the opposition to your
nomination stems from claims that you represented Shell Oil
Company in defending the company against having to pay for
clean-up of contaminated land. I understand that your role in
this case did not have anything to do with whether or not Shell
Oil Company was liable to the plaintiffs.
Could you please clarify what your role was in the Nelson
v. Shell Oil case? When did you become involved in the case and
what issues did your argument focus on?
Judge Kuhl. Yes, Senator, and in Nelson v. Shell Oil I was
hired, I think, after the first appellate decision had come
down. In other words, there had been a trial, there had been an
appeal. There was a partial reversal on the appeal, there was
another opinion. This case was up on appeal on appeal about
three times.
I was hired as appellate counsel on the case to address the
issue of the amount of the punitive damages award, and I made
arguments to the court of appeal about the amount of that award
and that was arguing on behalf of the defendant that it should
have been a smaller award. And that was the extent of my
involvement in that particular case.
Senator Chambliss. I understand in 1993 you represented
three private women's colleges in an amicus curiae brief before
the U.S. Supreme Court regarding the constitutionality of the
exclusion of women from Virginia Military Institute.
First, can you tell me how you became involved in that
case, and could you please tell me what position you took
regarding the constitutionality of denying women admission to
the VMI?
Judge Kuhl. Yes. In the VMI brief that I wrote, I was
contacted and requested to write a brief on behalf of the three
women's colleges. And primarily what the women's colleges
wanted to address in that brief was the importance of single-
sex education for women.
I am familiar with that topic because I myself went to an
all-girls school for high school and my two daughters are in
all-girls--well, one is in an all-girls school now; one will be
next year. So I feel pretty strongly about the helpfulness of
that to women as preparation for professional lives.
But in any event, the brief primarily described the
literature that supports the value of single-sex education for
women and asked the Supreme Court to take the VMI case in order
to clarify that whatever it said with respect to VMI, single-
sex education for women would not be unconstitutional.
The women's colleges felt insecure, if you will, based on--
with respect to the court of appeal opinion and if that had
been left standing, they were concerned that arguments could be
made that they might lose their tax exemption or that they were
being discriminatory in not admitting them.
Senator Chambliss. Judge Kuhl, I understand from your
statement and previous statements by other folks up here that
you have strong bipartisan support on your nomination,
including bipartisan support of 23 female judges on the Los
Angeles Superior Court bench. Is that correct?
Judge Kuhl. That is correct, Senator.
Senator Chambliss. I think that is all I have, Mr.
Chairman.
Chairman Hatch. Thank you.
Before I turn to Senator Schumer, let me just clarify one
thing. Some of your critics certainly on the outside have tried
to paint the picture that you are insensitive to civil rights.
I don't think anybody here has tried to do that; at least I
hope not.
Didn't you find for the plaintiff in the Grobeson case?
Judge Kuhl. Yes, that is correct.
Chairman Hatch. Can you elaborate for the Committee on that
case and explain that to us?
Judge Kuhl. Yes, Senator. The Grobeson case was a case
involving a police officer with the Los Angeles Police
Department who was openly gay. And he had prior litigation with
the police department, but in this particular case the issue
had to do with his being disciplined for several situations,
one of which was wearing a police officer uniform in a gay
rights parade without the, allegedly--I mean, there was a
factual dispute--without the permission of LAPD.
Another one had to do with, I believe, his attendance at a
funeral for an AIDS victim in uniform. There were several
incidents such as that and he had been disciplined by the
department, and the issue before me in that case was the
discipline that had been given to him. And I reversed the
discipline on the ground that he had not been adequately given
notice of the charges against him in a particular instance, and
so that discipline was reversed.
Chairman Hatch. Well, I will put into the record an
Associated Press article about the Grobeson case. The article
was dated September 6, 2001. It just said, ``A judge has
ordered the police department to reverse a suspension of a
former officer who won a landmark legal settlement that dealt
with alleged discrimination and harassment toward gays within
the agency. Superior Court Judge Carolyn Kuhl said Tuesday the
department must provide former Sergeant Mitchell Grobeson with
pay, plus interest, for a 195-day suspension in which he
received no salary. The judge's order didn't specify the amount
owed to Grobeson.''
And it goes on to say that he wore his police uniform
without permission while attending a gay pride festival, and in
a magazine advertisement recruited homosexuals to the LAPD.
``Police officials couldn't be reached for comment Thursday.
Grobeson and two other officers won $770,000 in a civil suit in
February 1993. As part of the damages, the department promised
to improve its hiring and training of gay officers. But
Grobeson claims the department failed to follow up with the
reforms and filed another suit in January 1996. In the second
suit, he also alleges that fellow officers and supervisors
harassed him. The department filed misconduct charges against
Grobeson in June 1996. He later retired on a stress disability
claim and challenged the suspensions in court. In 1999, Kuhl
threw out the suspensions because the department's Board of
Rights modified the formal charges against Grobeson without
giving him fair notice. Negotiations between Grobeson and the
department for possible settlement broke down and his attorney
sought an order asking for back pay,'' unquote.
Is that a fairly accurate account?
Judge Kuhl. As best I remember, Senator, yes, Mr. Chairman.
Chairman Hatch. Okay, thanks.
We are going to turn to Senator Schumer, and perhaps he
will be our last questioner today.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I thank you for
the courtesy. If I hadn't been able to make it back, you were
willing to wait and I very much appreciate that.
Judge Kuhl, I want to welcome you and your family here
today. I want to congratulate you on the nomination.
Judge Kuhl. Thank you, Senator.
Senator Schumer. I am sorry that this is going to be--that
it is already an adversarial and contentious process, but I am
sure you appreciate the magnitude of the job you have been
nominated for, obviously a lifetime appointment, and the
importance of us fulfilling our constitutional duties in this
process, not to ourselves but to the people I represent.
As I was reading your record this weekend, and in
particular I was looking at one of the cases, the most
contentious one, Azucena Sanchez-Scott v. Alza Pharmaceuticals,
I began thinking about the pattern of nominees we have seen
from the White House.
Anyone who thinks that the nominees are just chosen on the
basis of legal excellence and don't have a view just has to
look at the nominees who are before us. They are not mainstream
moderate by and large. They are people any objective observer
would say are way over.
The Ninth Circuit is one that I give special consideration
to. I voted for Mr. Bybee to come to the Ninth Circuit because
it is largely a Democratic circuit and I believe in balance.
And so my inclination would be to be supportive of you, but
when I had read some of these things, they cry out for
explanation and that is why I have to ask you these because
just because we want balance doesn't mean you give a carte
blanche to everybody.
I have been thinking about the nominees that we have seen,
in general. We on our side of the aisle have talked about, as I
said, how many of these White House judicial nominees are out
of the mainstream, in general. But when you go over the record
one after the other, it becomes even clearer. And the clearer
it gets, I think the more worried mainstream Americans will
get.
I believe that 10 or 15 years from now, there is going to
be a rebellion if the Presidents gets his way and puts every
one of his nominees on the court because they are going to be
doing things that most people find outrageous. And it is
especially frightening when it comes to women's rights. I think
it is fair to say that, viewed collectively, many of these
nominees are engaged in a campaign to roll back the clock on
women's rights.
Let's look at the facts. Jeffrey Sutton, a Sixth Circuit
nominee, sought out the opportunity to represent an employer
who had discriminated against a woman because she had become
disabled by breast cancer. The woman's name is Patricia Garret.
Ms. Garret was head of the ob/gyn neonatal unit at the
University of Alabama-Birmingham Hospital. She took a leave of
absence. When she returned, she had been demoted. Mr. Sutton
apparently believed this was the right thing to do and sought
out the opportunity to fight Ms. Garret's effort to get her job
back.
Priscilla Owen, a Fifth Circuit nominee who has just been,
without a second hearing, renominated by this Committee after
she was defeated the first time, always on a party-line vote--
if the President is seeking unity, I don't think we would get
so many party-line votes. Anyway, she invented additional
hurdles blocking a woman's access to her constitutional right
to choose. Judge Alberto Gonzales, now the White House Counsel,
said that Justice Owen's opinion in that case was an instance
of unconscionable judicial activism.
By the way, we did, of course, have a second hearing for
Justice Owen, but renominated her. It didn't change the votes.
The membership had changed.
And then we have Deborah Cook, a Sixth Circuit nominee. She
ruled against a widow in a claim against Wal-Mart for the
wrongful death of her husband. The widow's initial suit had
been dismissed for insufficient evidence, but then it became
clear that Wal-Mart had instructed employees to lie and hide
the evidence. The widow won her effort to reinstate the suit
based on evidence that Wal-Mart had covered up, but Justice
Cook dissented, holding that the widow shouldn't be allowed.
Just last week, in addition to this confirmation hearing
today, we held a confirmation hearing for James Leon Holmes.
Now, he is a nominee for the district court. Usually, we give
more deference to the district court, but Mr. Holmes has said
that rape leads to pregnancy about as often as it snows in
Miami. Is that the kind of person anyone wants on the bench? Is
that the kind of person who is mainstream?
According to the best estimates out there, we have 30,000
rape- or incest-induced pregnancies each year in America. It
snowed in Miami exactly once in the last century. Is that the
kind of sensitivity, whatever your ideology, that someone who
is being elevated to the Federal court should show? Of all the
people out there, why do we have so many of these situations,
not just one, but one after the other?
And if that weren't offensive enough, Mr. Holmes has also
said that women are obligated to subjugate themselves to their
husbands. That is the kind of 19th century thinking we are
seeing from these 21st century nominees.
So, Judge Kuhl, I hope you will understand why I am
concerned about the ideology and agenda that these nominees are
taking with them to the Federal bench, because they get out
from the Congress they are gone; they are there for life. I
hope you understand why I am reviewing the records closely and
fully to figure out what kind of judges they will be.
I have voted for close to 95 percent of the President's
nominees, even though I don't agree with most of them on choice
or on any of the other issues. But some are just too far over.
I am disappointed to say that your record gives me real
cause for concern. I am deeply concerned that you not only
believe Roe v. Wade is wrongly decided--it is not good enough
for me to say ``I will follow the law.'' We have had that
before. We had Mr. Thomas come before this Committee and say he
had never discussed Roe v. Wade, and it is clear that he has
not been a down-the-middle interpreter of that.
But when you were a Government lawyer and then your job was
defending the Constitution, you pushed the U.S. Government to
ask the court to reverse Roe. Now, if you were following the
law as Solicitor General, you wouldn't have done that. And just
because you are here before us today under these circumstances
and say you will follow the law, that is not assurance enough;
it shouldn't be assurance enough.
I am going to cover the Roe area--my colleagues have--in a
second round or in writing, but I want to take this time to ask
you about Azucena Sanchez-Scott v. Alza Pharmaceuticals. I just
want to review the case so it is in the record, so people know
what it is.
Ms. Sanchez-Scott was a breast cancer patient. She was
undergoing chemotherapy treatment. One day, she went to see her
doctor for a checkup and was escorted to a private examination
room to wait. When the doctor arrived, he was accompanied by
another man. The doctor introduced the other man as Mr.
Martinez and said that Mr. Martinez was, quote, ``a person who
was looking at the doctor's work,'' unquote.
The doctor instructed Ms. Sanchez-Scott to undress from the
waist up. He had her get up on the examination table, into the
examination position, and then rolled down the waistband of her
skirt so he could examine her abdomen.
And now I am reading from the appellate court opinion,
quote, ``During the examination, Ms. Sanchez-Scott began to
feel extremely hot and flushed. She carried a pocket fan with
her for such occasions. She took the fan out of her purse and
began to fan herself to feel cooler. At this point, the doctor
took the fan from Ms. Sanchez-Scott and gave it to Mr.
Martinez. Mr. Martinez was told, quote, `it would give him
something to do.' Mr. Martinez began fanning Ms. Sanchez-Scott,
who became extremely''--I am quoting from the case--``who
became extremely uncomfortable because the doctor and Mr.
Martinez both started to laugh. The plaintiff told Mr. Martinez
she would fan herself, but Mr. Martinez refused her request and
continued to fan her. Mr. Martinez watched the doctor examine
Ms. Sanchez-Scott's''--they are specific, but I will just say
body.
``As the examination continued in Mr. Martinez' presence,
Ms. Sanchez-Scott continued to become more comfortable.'' This
is still the case. ``As soon as the examination was concluded,
Ms. Sanchez-Scott got up and tried to cover herself because she
was embarrassed and uncomfortable.''
Then the doctor told Ms. Sanchez-Scott, with Mr. Martinez
still present, she would need a chest x-ray and a mammogram.
When Ms. Sanchez-Scott went to the receptionist to schedule her
procedures, she was asked--by the way this part, I am just
summarizing the facts, when I started with ``Then the doctor.''
Ms. Sanchez-Scott went to the receptionist to schedule her
procedures and she asked who Mr. Martinez was. The receptionist
responded Mr. Martinez was a sales representative from a
pharmaceutical company.
Now, I think, and I believe most Americans think,
regardless of their political ideology, that this is outrageous
conduct on the doctor's part. To bring a sales representative
from a drug company into a private examination room, without
explaining to the patient what is happening and getting her
explicit permission, is unconscionable. It is not just a close
question.
My God, I don't know who Judge Turner is, I don't know what
his views are, but if he thinks that this is a close question--
it was reversed unanimously by the court of appeals--he ought
to talk to--I have asked five or six women. To a person, they
are outraged, outraged. And when I told them that a letter was
sent in saying it is a close question, they were amazed. They
said who pulled the strings for that one?
I don't know if that is the case, but I don't think anyone
thinks this is a close question. It is a gross violation of Ms.
Sanchez-Scott's privacy. And God bless her. Unlike so many
other women who might face this humiliation, she found herself
a lawyer and she filed suit. And the case came to you and you
dismissed it, at least pertaining to Mr. Martinez and the drug
company.
You said, as I understand it, that because she didn't ask
questions and object, Ms. Sanchez lost any right to privacy she
may have had. You also agreed with the defendants that no
reasonable person would have found Mr. Martinez' presence to be
highly offensive, and that this was nothing more than--and
these are your words--``a situation which she found socially
uncomfortable,'' socially uncomfortable.
The appellate court that sits above you unanimously
reversed you in this case, and I have to say I can see why they
did. I don't think I have seen a more disturbing ruling from a
judicial nominee since I have been in the Senate.
I think most Americans would be horrified to hear that your
view of privacy rights, particularly in that situation,
depended on someone who was scared and upset having to ask
questions. And then to hear that you are being considered for a
lifetime appointment on the Federal bench demands not just a
letter from another judge that we don't know about saying it
was a close question, even though he ruled against you. I need
a lot more than that to have confidence that you will be a
judge who is fair to women.
So I have to ask you this: How do you explain the ruling
issued in this case, and what can you tell us to assuage so
many of my colleagues' concerns that you have too narrow a view
of privacy rights?
Judge Kuhl. Well, Senator, first of all, with respect to
the Sanchez-Scott case, I can certainly understand the upset
that the woman had and her feeling of betrayal, perhaps,
because of what her doctor had done. And the fact of the matter
is that she had a lawsuit, a tort action, against her doctor
for failure to obtain her consent to bring a third party into
the examining room, and that that cause of action went forward
and was left standing and was not at issue in the case.
With respect to women's rights, I--
Senator Schumer. Can I just ask you a few more questions?
Do you stand by her words that to protect her privacy rights,
she had an obligation to ask questions?
Judge Kuhl. Well, Senator, it is the case that if she had
given consent--and the court of appeal opinion says this--if
she had given consent that there wouldn't be a privacy cause of
action. But I think the important thing here was--
Senator Schumer. Well, wait. Had she given consent?
Judge Kuhl. No, Senator, she had not given consent, and
that is why I say that her claim against the doctor was really
at the forefront here because he was the one who had control of
the examination room and he was the one who invited this third
party in. And that is why she had a tort action, a tort claim
against the--
Senator Schumer. Do you have any evidence that the third
party was coerced to come into the room?
Judge Kuhl. No, I don't think that was my point, Senator.
Senator Schumer. Well, explain it to me. You said that the
doctor invited him in.
Judge Kuhl. That is right. It was the doctor's decision to
bring this third party into the examination room, and therefore
it was--she was very legitimate in being upset at his not
having obtained her consent to bring this person into the
examination room that was in his doctor's office.
Senator Schumer. Yes. I don't follow your--in other words,
you are thinking that Mr. Martinez was blameless?
Judge Kuhl. That is not my point, Senator, but I am saying
that she had a claim which went forward against the doctor.
Senator Schumer. Right, but you were reversed. How many
judges were on the appellate panel that reversed you?
Judge Kuhl. There are three on our appellate court who do
so, and I think in that--
Senator Schumer. Just let me ask you this.
Judge Kuhl. Go ahead, Senator.
Senator Schumer. No. Please.
Judge Kuhl. Well, I think that the appellate court in doing
that clarified the law in what was a rather unclear area, and I
welcome that and certainly would follow that law in the future.
Senator Schumer. And one other thing. You say it was a
situation which she found socially uncomfortable. I don't even
get that one.
Judge Kuhl. I really don't recall that from the transcript.
I would be glad to look at it, if you like. I am not saying it
wasn't there, but I just don't recall those words, so I really
can't comment on the context. I am sorry.
Senator Schumer. Well, in the defendant's motion to
dismiss, that is what you said.
Judge Kuhl. In the defendant's motion to dismiss.
Senator Schumer. You sustained the motion to dismiss.
Judge Kuhl. That probably would have been a demurrer, yes,
I think.
Senator Schumer. Do you think you made a wrong decision in
this case?
Judge Kuhl. Yes. I think the appellate court was correct,
Senator, and I also think you have mentioned me--grouped me in
with others and suggested that mainstream and moderate is
something that would not apply to me. And I think that the many
letters of support from people who have worked for me--
Senator Schumer. You know, I--
Judge Kuhl. --who have reviewed--
Senator Schumer. Please.
Judge Kuhl. --who have reviewed my decisions, people who
have worked with me on a commission appointed by the chief
justice to restate all of California law in easily
understandable jury instructions--if ever there was an
opportunity to twist the law, it would be in that committee.
And six members, six of my colleagues on that Committee have
written and said this is somebody who looks straight down the
middle at the law.
And Justice Carlos Moreno, of the California Supreme Court,
has written on my behalf. Civil rights lawyers Leo Terrell,
Vilma Martinez, former head of MALDEF, have written on my
behalf. And I think those who know my work have great
confidence and have expressed that very clearly that I am a
judge who follows the law and applies justice without reference
to persons.
And certainly on women's issues, Senator, a number of women
have mentioned in their letters, including the 23 women
colleagues who have written on my behalf, that I am someone who
mentors other women. I am proud of that. I have been lifted up
by other women who have gone before me and have established the
principles of equal rights for women that I enjoy the benefit
of, and I hope to pass that tradition on to my daughters. And I
have tried to as best I can in my professional life assist
other women as they travel the path that I have traveled.
Senator Schumer. Do you think your own views on Roe v. Wade
are right down the middle?
Judge Kuhl. Well, Senator, my views on Roe v. Wade are that
I would enforce the law, that I would follow the Casey
decision--
Senator Schumer. Do you think your personal views, your
personal views--we have learned, despite when people say they
will enforce the law, personal views influence that and that is
what leads to why we don't have nine-nothing decisions on the
Supreme Court. That is why every analysis shows that people's
philosophy and who appointed them has a huge difference in how
they vote.
I think what we are trying to establish here is simply
saying ``I will follow the law'' is not good enough because
that is what people now who reportedly have strong views on
things tell us and it just doesn't work that way on the bench.
Judge Kuhl. I know that you--
Senator Schumer. Otherwise, we would have a computer that
will follow the law. Individual judgments actually determine
how you would follow the law. I mean, in this case clearly you
did something--and I appreciate your admitting it was a
mistake--that 99 out of 100 people, in my judgment, wouldn't
have come up.
Judge Kuhl. Senator, I appreciate your view and understand
your view with respect to how judges work, but my view of how
judges work is consistent with Justice Felix Frankfurter.
When I went on the bench, I took a quote from Frankfurther
and I stated to the people who were there 7\1/2\ years ago that
that was my judicial philosophy, and he said that the highest
exercise of judicial duty is to subordinate one's personal will
and one's private views to the law.
Senator Schumer. So why do you think that appointments by
Democratic Presidents and appointments by Republican Presidents
have such differences in how they decide, and there has been
study after study that shows it, if we all just follow the law?
Judge Kuhl. Well, going back to the article that was
referred to earlier, I think that President Reagan, for
example, attempted to pick judges who were committed to
following the law, not legislating, trying to find out as best
as they could--and this is what I try to do--what it is that
the legislation means and implementing that without regard to
what I think. Sometimes, you have to make a conscious choice in
your mind to put something aside, and you do it and you go
forward.
Senator Schumer. Why in the Solicitor General's office did
you urge that they move to overturn Roe v. Wade, when your job
as Solicitor General to follow the law and urge the Solicitor
General to follow the law?
Judge Kuhl. My job in the Solicitor General's office was
one of several roles--one of two roles I guess I held as an
advocate. And as an advocate, one certainly needs to take
precedent into account, but one's primary job as an advocate is
to make arguments that support the interests of one's client.
And in that case, President Reagan as the President had very
clearly stated his position that Roe v. Wade should be
overruled. It is very different from--
Senator Schumer. Don't you swear to uphold and defend the
Constitution in that job?
Judge Kuhl. I think so.
Senator Schumer. I think so, too, and the law of the land
was Roe v. Wade.
Judge Kuhl. Well, Senator, the law of the land is also that
a lawyer may ask a court to overrule a precedent. I mean, it
has never been the case, or it certainly has never been my
understanding that one may never ask a court to overrule a
prior ruling.
Senator Schumer. So did you then think that Roe v. Wade
wasn't the law of the land?
Judge Kuhl. No, I am not saying that. I am saying--
Senator Schumer. Shouldn't have been the law of the land is
a better way to put it.
Judge Kuhl. No. What I am saying is that the advocacy there
was that the President and the executive branch had a position
with respect to that and we asked the Supreme Court to do so.
One of the reasons why we did so--or in my mind, one of the
reasons to do so was because the Government had already in the
Akron case previously taken a position on Roe v. Wade and it
was a position that said that States should be given
significant deference in legislating in the abortion area.
And Justice Blackmun, sitting on the bench in that case in
the Supreme Court, had asked Solicitor General Rex Lee, well,
are you asking that Roe should be overruled? And General Lee
said no. And Justice Blackmun said, well, then, should Marbury
v. Madison be overruled? And he was very concerned about the
argument and I can understand that. I thought that if this was
the position of the executive branch and the position of the
President that it should be presented in a credible fashion
forthrightly.
Senator Schumer. Yes, but here is the contradiction, I
think, in what you are saying. If you are defending the
Constitution and Roe v. Wade is constitutional law, how can you
urge its reversal?
I would just make one other point here. Charles Fried was
then the Acting Solicitor General and he also signed the brief,
but he said that some of the--I believe this is a quote from
him--``Some of the political people in the Department''--that
is his quote--unquote, were to eager to do so and, quote, ``the
most aggressive memo came from Carolyn Kuhl in the Civil
Division, who recommended that we urge outright reversal of
Roe.''
No one else, even the Solicitor General himself, I guess,
went that far, and you say you were sort of on your own helping
President Reagan when so many of the others in the Department
higher up than you didn't think we ought to go that far?
Judge Kuhl. Oh, Senator, the--
Senator Schumer. And it was not the law, it was not the law
of the land.
Judge Kuhl. Professor Fried, then-General Fried was the
Acting Solicitor General. He eventually was confirmed as
Solicitor General. He certainly was senior to me and it was his
decision to file the brief. Richard Willard was the Assistant
Attorney General. He was senior to me and it was his
recommendation to file the brief.
So I am not exactly sure I am answering your question, but
perhaps I don't understand it.
Senator Schumer. Were you one of the most aggressive in
urging in the Solicitor General's office that Roe be overturned
when you were there?
Judge Kuhl. I was not in the Solicitor General's office at
that time. That is Professor Fried's characterization. I did
urge that the Department be forthright with the Court and,
since it was the position of the President, present that view
to the Supreme Court, and present to the Supreme Court the
arguments of the many constitutional scholars who at that time
had taken that position--Alexander Bickel and Ruth Bader
Ginsburg, Harry Wellington.
Senator Schumer. Judge, I am not asking what other people
think. I am not even asking what President Reagan thinks
because the position--we are looking at you as you are coming
here and saying you will uphold the law.
You also, when you had this job, said you would uphold the
law. I think you are asked to do that, and back then you said--
and Roe v. Wade was clearly the law of the land, and here you
are not an elected President at the top of the Government, not
even on the U.S. Supreme Court--
Chairman Hatch. Nor was she a judge at the time. She was an
advocate for the President.
Senator Schumer. But, Orrin, it is the analogous position.
Chairman Hatch. But you are talking to her as a judge.
Senator Schumer. Well, you are being asked to and you swear
an obligation to uphold the law. And I would say if you asked
most people to look at your record and what you have said that
at least it is reasonable to doubt, given this and given some
of the other things, that once you got on the bench, you would
see upholding the law as most Americans do, which means keeping
Roe v. Wade.
Judge Kuhl. Well, Senator, I have already said that I see
upholding the law and my job as a judge as applying Roe v. Wade
and applying Casey. I just may not understand your premise
about the job of the Solicitor General.
As a judge, I don't like it when people ask me questions,
so I shouldn't really be asking you questions.
Senator Schumer. You can.
Judge Kuhl. But my question would be is your premise that
as a lawyer for the United States, one should never argue that
precedent should be overruled, because that is not my
understanding of the job of a lawyer for the Government.
Senator Schumer. If you think the precedent is not in
consonance with the law of the land, you should argue that it
be overruled. But you are saying two things that are different.
One is you are saying you argued that Roe should be overturned,
but at the same time you argued that your job there would be
to--your stated your job there is to uphold the law of the
land.
I think, Orrin, it is analogous to being a judge.
Chairman Hatch. Well, if you will yield, that is not what
she said.
Senator Schumer. Well, why don't you say it again? How do
you square the idea that you swore an oath to uphold the
Constitution, that Roe v. Wade was the established law of the
land, and you were among the most vigorous in urging that it be
overturned? That is the question in a nutshell.
Judge Kuhl. Well, I think, Senator, when as a lawyer one
takes an oath to uphold the law of the land, what one is saying
is that as an official of the Government, one is going to
follow the law. In other words, if the Supreme Court interprets
a statute in a particular way and you are advising an agency as
to how to act, you tell that agency, you act in accordance with
the law. I have never understood it to mean as an advocate that
one cannot ask a court to overrule a prior precedent.
Senator Schumer. So you are saying you were an advocate
when you were in the Solicitor General's office?
Judge Kuhl. That is correct.
Senator Schumer. But you will not be an advocate as a
judge?
Judge Kuhl. That is correct.
Senator Schumer. Even though in each case, you were asked
to swear an oath to uphold the law of the land?
Judge Kuhl. I think one's duty is different in the two
cases.
Senator Schumer. I will leave it at that.
Chairman Hatch. That is my point.
Judge Kuhl. Thank you, Senator.
Chairman Hatch. Okay, thank you, Senator.
I am going to finish up with--
Senator Schumer. Mr. Chairman, could I just ask unanimous
consent that the letter from Ms. Azucena Sanchez-Scott to
Senator Leahy of March 3, 2003, be added to the record?
Chairman Hatch. Without objection.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Hatch. We are going to wind up with you and then
we will have to recess for the two district court judges until
two o'clock.
As you previously noted, Judge Kuhl, there are plenty of
respected legal scholars who believe that Roe v. Wade was a
poorly-written opinion and as a matter of constitutional law it
was wrong, some of whom are pro-choice advocates, such as
Archibald Cox, John Hart Ely, and others, and you have
mentioned a few.
Each of the abortion-related cases that you have been asked
about were before the Supreme Court's seminal opinion in Casey.
Is that correct?
Judge Kuhl. That is correct, Mr. Chairman.
Chairman Hatch. That needs to be brought out. Anybody who
says that once the Supreme Court rules, we just always have to
follow it no matter what anybody says, just doesn't understand
the law because there have been Supreme Court precedents
overruled from time to time because they have been wrong.
So to just say that because the Supreme Court rules that
that is within the Constitution--well, it is until it is
overruled.
Judge Kuhl. Well, Mr. Chairman, it just occurred to me that
Brown v. Board of Education would be such a case, overruling
Plessy v. Ferguson.
Chairman Hatch. Well, sure. That means that if you were up
for a judge before Brown v. Board of Education, with this
reasoning you would have to uphold Plessy v. Ferguson. I mean,
that is crazy. That is the trouble with getting into ideology,
and that is why those who come before this Committee--I expect
you to uphold the law regardless of your personal views. Your
personal views are irrelevant.
Now, do your personal views ever affect any litigation? I
imagine every context of your life might affect a case, but
that is true of every judge. Every judge has to think, but that
doesn't mean that you would violate the law in your thought
processes.
Now, Judge Kuhl, let me just ask you some follow-up
questions about the Sanchez-Scott case that you decided. It is
my understanding that the particular motion to dismiss that you
had granted had nothing to do with the claims against the
doctor and that your ruling would have allowed the claims
against the doctor to go forward. Is that right?
Judge Kuhl. That is correct, Mr. Chairman.
Chairman Hatch. Well, that is right. Now, please explain
which claims were involved in the motion you ruled on and what
your ruling meant for the ultimate disposition of the case.
Judge Kuhl. The claims against the doctor were tort claims
for failure to obtain consent from the woman in the examining
room that was the doctor's examination room.
Chairman Hatch. Right.
Judge Kuhl. And the claim against the third party who came
into the room was an invasion of privacy claim.
Chairman Hatch. Well, that is right. Now, to my knowledge,
the case settled before trial. Is that correct?
Judge Kuhl. That is correct, the case did settle before
trial.
Chairman Hatch. That is right. It is my understanding that
those of us hearing about the facts of Sanchez-Scott case for
the first time might be troubled by the conduct of this
particular doctor and the pharmaceutical representative. But I
think we need to keep in mind that judges do not decide cases
based on their personal responses to the behavior of the
litigants, but based on the law.
Now, Judge Kuhl, I understand that you dismissed the
constitutional right of privacy claim and were affirmed by the
appellate court on that issue. Is that correct?
Judge Kuhl. That issue actually was not appealed, was not
taken up on appeal.
Chairman Hatch. Okay.
Judge Kuhl. It was dropped, I think is the way of saying
it.
Chairman Hatch. As I understand it, there were additional
invasion of privacy claims brought under California State law.
Judge Kuhl. That is right. The invasion of privacy claim
that went up on appeal was State common law.
Chairman Hatch. Can you elaborate on the State law involved
in the claims and how the law led you to your ruling?
Judge Kuhl. Well, the common law in that case was not well-
articulated by the courts of appeal and the primary case that
was being cited to me was an 1881 case from Michigan. Now, the
appellate court relied heavily on that case, but as I think
Justice Turner indicates in his letter, my job was to follow
California law. And the appellate court imported that Michigan
case into California law and clarified the law in a way that I
think is helpful going forward in the future.
Chairman Hatch. Now, some of my colleagues have implied, or
at least have created the impression that the appellate court's
reversal in that case somehow demonstrates that you are
insensitive to litigants who come before you.
I just want to share with all of my colleagues and with
everybody watching this and with you, Judge Kuhl, a letter that
Senator Chambliss has already mentioned but which bears
repeating. This letter is from Judge Paul Turner, who authored
the appellate court opinion in the Sanchez-Scott case, for
which you have been somewhat criticized here by a colleague.
Judge Turner wrote, quote, ``I can tell the difference
between a trial judge making a tough call in the context of
competing legal interests on one hand and bias or prejudice on
the other hand,'' unquote.
He went on to state that, quote, ``A strong argument can be
made that Judge Kuhl correctly assessed the competing societal
interests the California Supreme Court requires all jurists in
this State to weigh when determining whether the tort of
intrusion has occurred,'' unquote.
He concluded by stating, quote, ``With all respect to those
who have criticized Judge Kuhl as being insensitive or biased
because of my opinion in Sanchez-Scott, they are simply
incorrect,'' unquote.
Now, I am going to read just a little bit more about it
because I think it is quite unfair to try and imply, because
you were reversed in this case, a reversal that you accept and
you said probably was right, that you were insensitive or
biased.
He is what he says, and this is right out of the letter
which I put in the record, without objection. ``First, there
was no issue in the Sanchez-Scott case involving the
constitutional right of privacy. Footnote 1 of the opinion
expressly states that there was no issue of the constitutional
privacy right before our court when we considered the Sanchez-
Scott case. Second, the plaintiff's tort claim against the
doctor himself for failing to obtain his patient's fully
informed consent was not at issue before Judge Kuhl and this
court. Ms. Sanchez-Scott's claim against the physician was to
be litigated in any case, even if the drug salesperson and his
employer did not remain in the case. Third, the Sanchez-Scott
case involves some issues of first impression under California
law involving the tort of intrusion, as defined in the
Restatement Second of Torts, Section 652(b), which even as of
this date have not been clearly defined with identifiable
bright line rules by California courts.''
That is what you meant when you said ``I think the
appellate court got it right,'' even though you were trying to
do your best to try to define this area. Am I right?
Judge Kuhl. Yes, Mr. Chairman, absolutely.
Chairman Hatch. He goes on to say, ``The California Supreme
Court has described the tort of intrusion as involving, quote,
`degrees and nuances to societal recognition of our
expectations of privacy,' unquote, and, quote, `relative,'
unquote, concepts. Much of the analysis in our decision was
premised upon the 1881 Michigan Supreme Court decision of the
DeMay v. Roberts case. In ruling on the demurrer, Judge Kuhl
was required to apply what the California Supreme Court has
characterized as degreed and nuanced rules of law involving
relative concepts. Fourth, attached to the complaint filed in
Superior Court was a letter explaining why the drug salesperson
was in the examining room during the breast examination. That
letter explained that he was present because he was
participating in an oncology mentorship program. The purpose of
the program was to allow the salesperson to, quote, `better
learn how an oncologist attends to patients, manages
medications, and generally oversees administrative functions of
the office,' unquote.''
``In other words,'' the judge goes on to say, ``the purpose
of the mentorship program was to ensure better delivery of
health care services to breast cancer patients. Under
California law, in evaluating whether the tort of intrusion has
occurred, a court must weigh the reasons for the intrusive
conduct. When Judge Kuhl concluded that the mentorship program,
which was designed to improve treatment for breast cancer
patients, was a sufficient justification for allowing the drug
salesperson to be present during the examination, she did not
demonstrate bias or insensitivity. In fact, a strong argument
can be made that she correctly assessed the competing societal
interests the California Supreme Court requires all jurists in
this State to weigh in determining whether the tort of
intrusion has occurred. Now, with all respect to those who have
criticized Judge Kuhl as being insensitive or biased because of
my opinion in Sanchez-Scott, they are simply incorrect.''
That is Justice Paul Turner, the Presiding Justice, who
comes down rather heavily on your side. Now, this is the second
time we have put this letter in the record, so I kind of resent
the misuse of this type of information to try and imply that
you might have been insensitive or biased.
It is my understanding that the appellate court ruling
merely held that the claims the plaintiff alleged were
sufficient to state a cause of action. Am I right?
Judge Kuhl. That is correct, Mr. Chairman.
Chairman Hatch. It did not make a determination about
whether or not the invasion of privacy had occurred. Is that
correct?
Judge Kuhl. That is correct, Mr. Chairman.
Chairman Hatch. Now, Judge Kuhl, this was probably an
emotionally-charged case for the plaintiff. But as we know,
judges have to rule on the law, to the best of their ability.
Now, how will you in the future handle cases that involve
particularly sensitive issues?
Judge Kuhl. Well, in particularly sensitive issues I always
try to--in all cases, I try to follow the law. That is my
primary goalpost. I do it with understanding of the
difficulties that may face that individual plaintiff. In the
trial court, we have those people in front of us and it is
important that they always be treated with dignity, with
understanding, with sympathy, and then the law is applied. And
the decision goes according to what the law demands, as applied
to the facts.
Chairman Hatch. What more could we ask of a judge than
that?
Now, Judge Kuhl, you have been asked repeatedly about
briefs you wrote on behalf of your clients both as a Government
lawyer and as a lawyer in private practice. Now, I want to
remind my colleagues of a fundamental principle, which is that
the arguments a lawyer makes on behalf of her client should not
be taken as evidence of her personal views.
Lawyers have an ethical obligation to provide the best
possible representation to their clients and to make all of the
reasonable arguments in support of their clients' positions.
You agree with that, don't you?
Judge Kuhl. Yes, Mr. Chairman.
Chairman Hatch. Now, Rule 1.2(b) of the ABA Model Rules of
Professional Conduct provides, quote, ``A lawyer's
representation of a client, including representation by
appointment, does not constitute an endorsement of the client's
political, economic, social or moral views or activities,''
unquote. This principle is as equally applicable whether the
lawyer is in private practice or is in government service.
Now, Judge, this has been a rather long hearing. It has
been difficult to sit through and you have been there a long
time. I have to say this, that I have not seen a better witness
for any appellate court, circuit court of appeals appointment--
Judge Kuhl. Thank you, Mr. Chairman.
Chairman Hatch. --in my whole 27 years in the United States
Senate. I would have to say that I think Priscilla Owen and you
are two of the best witnesses I have ever seen. Now, I am not
just saying that. I mean, I am not trying to be kind here. I am
just saying that you have handled yourself very well.
I can't for the life of me see why anybody would not want
you to serve on the Ninth Circuit Court of Appeals. I
personally believe, with your approach to the law, maybe that
circuit will start getting it right for a change rather than
being reversed almost every time the Supreme Court reviews
their decisions.
So I want to compliment you. You have handled this hearing
very, very well. You answered every question forthrightly. You
covered the law well. You made it very clear that regardless of
your personal ideologies or beliefs or anything else, you are
not going to let that interfere with your obligation as a judge
to provide justice and to uphold the law as it is written,
regardless of how stupidly sometimes we legislators write it. I
think that is a fair appraisal.
Now, I just want to say that because, for the life of me, I
can't imagine why we have had to wait until now, 21 months
later, to give you a hearing, and even now some of my
colleagues are complaining about it. Actually, I don't like to
overrule colleagues, but the fact of the matter is there is a
justice in this country that ought to be followed even on this
Committee, and people who are nominated by the President ought
to be given a chance, to the extent the Committee can hold the
hearings. And I have to say that I have always tried to do
that, even though some have criticized, because I have had all
kinds of problems getting colleagues to go along with me.
I think it is absolutely ridiculous to say that any case is
constitutional law and can never possibly be reconsidered.
Perhaps Marbury v. Madison, and I can name a number of other
cases that probably should never be reconsidered, but most
cases sometimes have to relooked at.
And I think we can trust you to look at your job in the
light of doing it in the best possible way you can, within the
law, while upholding the precedents of the Supreme Court. Now,
you have said you will do that. I am counting on you doing
that. I am counting on you being a great member of the Ninth
Circuit Court of Appeals.
And I hope my colleagues will look at this record and look
at your testimony today and quit obstructing--only a few have
done this. I am hopeful that the colleagues on this Committee
will not. But those who have obstructed your consideration of
even having a hearing I think are so wrong that it is just
pathetic.
So, with that, I want to thank you for being here. I want
to thank your family. We really appreciate having all of you
with us. You young daughters should be very proud of your
mother. I know your father is very proud of her as his wife,
and your grandfather and uncle here at very proud of her as
well.
Thank you for being here. I apologize to the district court
nominees, but we will recess until 2 o'clock when we will hear
the testimony of the district court nominees.
With that, we will recess until 2 o'clock.
[Whereupon, at 1:12 p.m., the Committee recessed, to
reconvene at 2:00 p.m., this same day.]
AFTERNOON SESSION [2:05 p.m.]
Senator Sessions. [Presiding.] All right, we shall begin.
Senator Hatch asked me to chair the afternoon hearing, and if
our nominees would come forward, we will commence.
Would you raise your right hand? Do you swear to tell the
truth, the whole truth, and nothing but the truth, so help you
God?
Judge Altonaga. I do.
Judge Minaldi. I do.
Senator Sessions. Please take your seats.
We are delighted that you are here today. Congratulations
on going through quite a lengthy process. As you know, Senators
look at nominees, and they call lawyer friends, and they check
on qualifications. Then those names are floated to the
Department of Justice, and they do background checks, and then
the Department of Justice and the White House will look at it.
The FBI is required to do a background check on you. The ABA
conducts their background analysis, and they talk to lawyers
you have litigated with or litigated against or who have been
before you in court, and they ask how well you do, which I
think is a valuable contribution to the process. And eventually
this Senate takes all your paperwork and all the answers to all
the questions that are submitted, and staffers pore through it
all. And as you have seen from this morning, it doesn't take
much to have someone find an objection if they want to find
one.
So I would congratulate both of you on getting this far,
number one, and number two, not having any controversies that
are likely to slow down your nomination, at least none that I
know of.
So we are delighted you are here. Would you like to make
any opening statement or introduce any family members that are
with you? Judge Altonaga?
STATEMENT OF CECILIA M. ALTONAGA, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF FLORIDA
Judge Altonaga. Mr. Chairman, thank you. I don't have any
opening statement, but I would like to introduce my husband,
Attorney George Mencio.
Senator Sessions. We are delighted to have you. Very good.
Judge Altonaga. Thank you.
Senator Sessions. Is he in private practice?
Judge Altonaga. Yes, he is.
Senator Sessions. That is good. He can remind you what it
is like to meet a payroll and have to appear before judges.
Sometimes judges forget what that real-life world is like.
[The biographical information of Judge Altonaga follows:]
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Senator Sessions. Judge Minaldi?
STATEMENT OF PATRICIA A. MINALDI, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF LOUISIANA
Judge Minaldi. Mr. Chairman, I want to thank you very much
for the opportunity to be here. I don't have an opening
statement. I don't have any family here to introduce, although
my husband and my two boys are with me in spirit.
Senator Sessions. Very good.
[The biographical information of Judge Minaldi follows:]
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Senator Sessions. Judge Altonaga, I was impressed with your
background and going to Florida International with highest
honors, Yale Law School, and law clerk to Judge Edward B. Davis
in the Southern District of Florida. That is a good experience
for a would-be Federal judge, and, of course, you have served
as a judge now for a number of years.
And, Judge Minaldi, likewise, you went to Wesleyan
University and graduated with honors and Tulane Law School, a
fine law school, and have been a district attorney and a
prosecutor and a judge now since 1997. Is that right?
Judge Minaldi. That's correct, Mr. Chairman.
Senator Sessions. Both of you, I think, have excellent
backgrounds for the position that you would be seeking.
We always ask some questions relating to what has come to
be known around here as judicial activism. I think that is a
legitimate series of questions on inquiry to be made of
nominees because this is the last political accountability you
have. After confirmation, then if you do not have a proper
respect for the legislative branch, the branch that is asked to
confirm your nomination, or the executive branch that nominates
you, then the system is not working correctly. So we need to
know fundamentally: Do you respect the separation of powers? Do
you understand the role that courts have in interpreting the
law? Do you understand that you have not been politically
empowered by the voters, which is traditionally the source of
power in a democracy, but have been given a lifetime
appointment, unaccountable to voters; and, therefore, if you do
not show personal restraint and, by nature, you don't
understand the role of the judiciary, then that is an upsetting
thing, that can cause serious trouble.
And we have had on the bench and still have on the bench
judges who just seem to enjoy causing turmoil, reinterpreting
the meaning of the Constitution, it seems to me, to declare
statutes unconstitutional or to take other actions that are
dubious under traditional interpretations of the law.
So I guess I would ask both of you: Have you thought about
that? Do you understand that if you want to be in politics now
is your last chance to get out of the judicial branch and go
into that? And are you willing to follow the law even if you
don't like it, to enforce those statutes and the constitutional
requirements even if they are not the best? I will start with
you, Judge Altonaga.
Judge Altonaga. Thank you, Mr. Chairman. I would say that
my primary obligation as a trial court judge is to interpret
and study the law and to apply it, and whenever I am called
upon to review an act of our legislature, begin the endeavor
with a presumption of constitutionality.
I might add that my background as a litigator was to serve
as an assistant county attorney representing local government,
and I represented local leaders of our government, the
commissioners and the mayor, and we assisted them in drafting
local legislation, ever mindful that it could be subject to
scrutiny by the courts and would very frequently be called upon
to go into court to urge that the ordinance in question be
deemed constitutional, reminding the courts that it was the
commissioners and the mayor that made policy and that the
courts were there to review the constitutionality of the
particular legislation but not the wisdom or the efficacy
necessarily of the ordinance.
So I'm very mindful of what the role is, especially of a
trial court judge. My role is not to make law. I am certainly
not elected or placed into this position that I currently have.
And if I am confirmed, that would not be my role or the mandate
that I would have.
Thank you.
Senator Sessions. Judge Minaldi?
Judge Minaldi. Mr. Chairman, I actually welcome the
opportunity to get out of politics and have nothing to do with
politics anymore. I am a firm believer in the concept of
separation of powers. I think it is a fundamental concept in
our society and to be absolutely respected by judges.
I have absolutely no intention of doing anything other than
applying the law as it exists, as legislated by Congress and as
interpreted on those occasions by the Supreme Court. I don't
have any desire to be a judicial activist. I think when I made
my transition from being an advocate to being a judge on the
State court, I knew what my responsibilities were in that
regard, and I put those--the robes of advocacy aside and put on
the robes that were appropriate for the bench; and that once
you take your responsibility seriously, I think that's--it can
be very easy for people who take that responsibility seriously
to do.
Senator Sessions. And how long were you a prosecutor?
Judge Minaldi. Thirteen years, sir.
Senator Sessions. And were you a prosecutor, Judge
Altonaga?
Judge Altonaga. I was a local government lawyer. My
practice was civil.
Senator Sessions. I want to ask you this as a person who
has spent the better part of a professional career as a
prosecutor, Federal and State. I know you are committed to
giving the defendant a fair trial, and, in fact, the appellate
courts look over your shoulders to make sure you do give them a
fair trial and will reverse a trial court if they make an
error. But, really, it needs to be in your heart to give the
defendant a fair trial.
But, also, I would ask you to think about this and ask you
whether or not you will commit to give the prosecution a fair
trial, because a prosecutor cannot appeal many of the rulings,
most of the rulings that a trial judge makes. And there have
been judges, when faced with questions, maybe they don't want
to take time to research the law or they are not real sure what
the law is and they just sort of routinely rule for the
defendant on the theory that if they rule for the prosecutor
they might get reversed or the case would have to be tried
again.
I believe a prosecutor, if they have evidence that is
worthy of being admitted in the court, ought to be able to have
it admitted, and the judge shouldn't be erring, trying to level
the playing field or be afraid to so rule.
Would you give the prosecutor a fair chance, Judge
Altonaga?
Judge Altonaga. Mr. Chairman, I give both sides--it is my
goal and it's my wish that in every case I give both sides a
fair chance. And just by way of example, motions to suppress
are routinely heard prior to trial, and the defense clearly has
the right to seek appellate review of an adverse ruling after
the conclusion of the case, but the prosecution does not.
It is my practice in my courtroom to require that motions
to suppress be heard before trial to give the prosecution, if
it's my intention to suppress any evidence, time to consult and
to file and seek extraordinary relief with the appellate court.
So I am ever mindful that both sides are entitled to a fair
trial, and I strive to do that in every case.
Senator Sessions. Well, I have been before great judges
that consistently have adhered to that ruling, but I have seen
judges who rule during trial, making it impossible to appeal.
And sometimes I have thought or heard others talk about other
judges who believed that the judge did that deliberately. So
that would be wrong, I think.
Judge Minaldi, would you comment on that?
Judge Minaldi. Yes, Mr. Chairman. As you said, as a
prosecutor for 13 years, I saw those kinds of judges, too. So I
am very familiar with that, and I think it is an unfortunate
thing.
I think we all have to be mindful of the awesome power that
a prosecutor's office has, the ability to obtain arrest
warrants, indictments and charging by bills of information, and
it's an awesome power and can affect people's lives. I took
that seriously when I was a prosecutor, but I take equally as
seriously as a judge the awesome power and responsibility that
a judge has in making sure that there is a level playing field
for--that the State gets a fair trial, that the defendant gets
a fair trial, and that the appropriate burdens of proof are
applied in an appropriate manner.
Senator Sessions. I think you stated that very well, and as
a young prosecutor, some of the Federal judges taught me a lot
of lessons in court and made me better at my work because they
didn't allow prosecutors to get away with anything, and I think
that is certainly important.
But as you know, Judge Minaldi, when the government rests,
an unelected Federal judge with a lifetime appointment can
dismiss the case, grant a judgment of acquittal, and there is
no appeal whatsoever and the defendant is released forever on
that charge. So it is an august responsibility.
Judge Minaldi. It most definitely is, and one that I would
take very seriously, Mr. Chairman.
Senator Sessions. Case management is something that I
believe is important in a Federal judge, and maybe you can
share some of your ideas about that. And, additionally, I would
just ask for your commitment to work hard to manage the cases
that will come before you. If there ever was a time when being
a Federal judge was a pretty easy job, that is no longer the
case. There are constant demands, cases are increasing in
numbers, and for the most part, our judges are doing a good job
of handling more cases and disposing of more cases.
So are you committed to managing your docket? And do you
have any ideas about what you would like to do to improve case
management?
Judge Altonaga. Mr. Chairman, I've been on the bench almost
7 years now, and during the course of that time, I have served
in different divisions within our circuit, both in the county,
at the county level and at the circuit level. And every time
one enters a new division, you learn about different ways of
case management because the caseload is different depending on
the division that you're in and the way of getting a case to
final conclusion varies depending on the nature of the case.
So every time I've entered a new division, I've learned
about ways to effectively case manage and move cases along so
that they're not delayed, and that there's final resolution to
the case in a timely manner.
In the criminal division where I currently am assigned, my
last count was that I was the second lowest judge in terms of
caseload. I effectively manage my cases by, number one, working
very hard, by not simply setting the cases out in a long time
period so I don't see the litigants or hear about the case
until it gets called, but by bringing them in to check on the
status, have the attorneys report to me what it is they are
doing to make sure we are going to meet the anticipated date of
trial, and work with the lawyers, if we're going to reset a
trial, how much work is left to be done, how much time do you
need to do it in, and to get some commitments. I think
effective case management means that the judge needs to have a
hands-on role with the lawyers and with the litigants and
letting the lawyers know I know about what's happening in this
case and I expect you to tell me if you're encountering some
delay.
Senator Sessions. Judge Minaldi?
Judge Minaldi. Mr. Chairman, I'm currently on the court
of--excuse me, the Docket Management, Case Delay Reduction Task
Force that is a statewide task force throughout the State of
Louisiana, and we are attempting to come up with some new and
innovative methods for helping to decrease what is a widespread
problem in most of the courts across the State and one that the
public complains, I think, the most about, the delay that it
takes in coming to a final conclusion in court.
I would like to stress, though, that no matter what we find
or what we do, I don't think there's any magic formula for
making cases go quickly because any solution that we find
requires the hard work and tenacity of judges in making sure
that they are available to do the work, that they pay close
attention to their caseloads, and that they do everything they
can to move those cases forward.
Unfortunately, I don't think that always happens, and I do
commit to you that that is the type of judge I am right now,
and if I'm lucky enough to be confirmed in this position, that
is the kind of judge I will continue to be.
Senator Sessions. Well, you are right on there. We
certainly need to emphasize case management.
Are you aware that in the Federal court the Congress has
established very tight sentencing guidelines? I remember being
at one Eleventh Circuit conference when I was United States
Attorney, and one of the senior judges said, ``The truth is,
gentlemen, Congress does not trust you to sentence.''
There was a real serious debate in America in the last
1970's about the efficacy of incarceration, even, and we went
through a big, tough debate over that, and the Congress
concluded and the American people concluded that punishment
does make a difference. And I have no doubt in my mind that one
of the great causes of the reduction in crime is the fact that
we are identifying repeat offenders and they are serving longer
time.
I guess my question to you, though, is this: Having had
your own standards of sentencing, being used to evaluating
cases in State systems according to your own subjective
analysis about what sentence ought to be imposed, which I am
sure has validity, I ask you to recall that the Congress has
narrowed your discretion dramatically. A tough sentence in a
big drug case may be, if you like the defendant and feel sorry
for them, 25 years; if you don't like them and you want to give
them a heavy sentence, it is 28 or 29, and that is about all
the range you have got.
And so there have been some judges that are so personally
committed one way or the other about the sentence that they
attempt to manipulate the guidelines, to twist them in a way
that allows them to more nearly effect the sentence they think
is appropriate.
So, again, you still have a chance to get out of this job.
Are you willing to follow the guidelines that the Congress put
forward even if you think they are stupid?
Judge Altonaga. Senator, first of all, I would certainly
follow the law in all respects, and that would include the
guidelines. In my current position, although I do have certain
discretion in sentencing a certain category of defendants, my
discretion has also been taken away by the Florida Legislature
in many respects. We have minimum mandatories. We have
mandatory sentencing in many areas. For those who have prior
convictions and have a criminal record, sometimes we have
absolutely no discretion.
So I am right now in the position of having both areas
where I do exercise discretion and areas where I do not. I am
comfortable in adhering to the laws that I apply now as a State
judge, and if I am lucky enough to be confirmed, I am
comfortable that I will similarly follow the guidelines and
mandatory sentencing as established by Congress.
Judge Minaldi. Mr. Chairman, I am sure I would never think
that the sentencing guidelines were stupid, but I will tell you
that although there is probably a little bit more discretion in
the Louisiana State courts that there are in the Florida State
courts, we do have certain crimes for which there are mandatory
minimums. We do have certain laws regarding repeat offenders
which prescribe mandatory minimums as well. So I'm not unused
to that system.
We did at one point have sentencing guidelines. They were
later repealed. However, I don't--I'd have to say that I think
one of the most onerous duties a judge has is to attempt to
effect an appropriate sentence for any defendant, and in
Louisiana, we are told that we must absolutely individualize
and particularize those sentences to the defendant and the
facts of the crime.
So it will be different, but I don't think I will have any
trouble whatsoever applying the sentencing guidelines as
Congress has felt appropriate to hand down.
Senator Sessions. In many ways, it is a freeing thing. If
somebody comes before you and you can give them 20 years or
probation in a State court system, here the Congress
objectively, before this case ever came before you, set out the
factors that would narrow that range, and I guess in some ways
it can free your conscience rather than burden your conscience.
But I have seen judges make their lives miserable by feeling
that if they were writing the guidelines, it wouldn't have been
the same. And I think you have just got to follow them because
if judges don't, then the system begins to break down. And if
the U.S. Attorneys don't believe you are going to follow them,
then they don't follow them, and the whole thing begins to
collapse.
Before the guidelines, we had tremendous diversity in
sentencing. So that was why Senator Thurmond and Senator
Kennedy came together and passed the guidelines. It provides
uniformity of sentences based on objective factors that treat
the poor, the rich, the black, the white, the same.
Well, this has been an interesting discussion. I know that
you will do well on the bench. Your records certainly indicate
that. I believe and I hope that your nominations would move
forward in an expeditious way, that you won't be left in limbo
for too long. If there is anything we can do here on this
Committee to answer any questions, I hope that you will ask
them. And if you become a judge and you think there is
something wrong with the guidelines, write me. Don't violate
them, would be my suggestion. In fact, I have offered
legislation with Senator Hatch to narrow what we think is an
extreme difference between crack and powder cocaine. I think if
the Congress is going to take over sentencing, we ought to
constantly monitor it to make sure that it is making sense in
the real world and not ask judges to enforce rules that sounded
good 15 years ago but, as history has disclosed, may be not
quite so healthy.
Anything else that you have before the Committee?
Judge Minaldi. No. Thank you.
Judge Altonaga. Thank you, Mr. Chairman.
Senator Sessions. Thank you. Congratulations on getting
this far.
We are adjourned, and we will note the record will remain
open until Tuesday, April 8th at 5:00 p.m. for follow-up
questions. We are adjourned.
[Whereupon, at 2:27 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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